TITLE IX INVESTIGATIONS TRAINING

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Bakersfield City School District�October 8, 2026��Presented By:�Janet Ly, Esq.�

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WARM UP EXERCISE

Why Do we Have to Be Here today?

1. Because HR enjoys making administrators sit through two-hour trainings.
2. Because California likes creating new laws.
3. Because preventing harassment is everyone’s responsibility and supervisors play a critical role.
4. Because lawsuits are expensive.
5. All of the above.

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Today’s Agenda

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• Overview of the Title IX Regulations

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• Recognizing and responding to sexual harassment under Title IX

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• Rules for Investigation

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What is Title IX?

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance.”

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(20 U.S.C. Section 1681 and 34 C.F.R. Part 106)

How is the Title IX complaint process different from other District procedures?

• No discipline before the entire process is completed
• Written notice to parties of allegations and planned interview before interviews or other meetings
• Both parties have the opportunity to review all evidence and respond
• Both parties must receive a written investigation report and a separate report of the final decision
• The final decision must be made by someone other than the investigator or the Title IX Coordinator
• Both parties must have the chance to appeal to someone who was not involved in the investigation or the decision.

Definition of Sexual Harassment

• Defined as conduct on the basis of sex that satisfies one or more of the following:

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• Quid Pro Quo harassment- employee conditioning the provision of an aid, benefits or service of the recipient on participation in unwelcome sexual conduct;
• Unwelcome conduct that is so severe, pervasive, and objectively offensive that it effectively denies equal access to an educational program or activity; or
• Other Sexual Acts: Sexual assault, dating violence, domestic violence or sex-based stalking.

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• “Consent” is not defined.

Examples of Sexual Harassment

1. Unwelcome leering or propositions

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• Unwelcome sexual slurs or epithets

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• Sexual jokes, posters, gestures, cartoons

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• Spreading sexual rumors

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• Massaging, grabbing, sexual touching

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• Sexual assault or coercion

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NOTE: Sexual harassment can also include unwelcome conduct that isn’t itself sexual, but that is imposed on the basis of sex (e.g., if a group of middle school girls is taunted because they are girls, it doesn’t matter if they are called sexual names or just told that girls are gross.)

Examples of Sexual Harassment- Misgendering

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• The 2020 Title IX Regs do not explicitly

address misgendering, gender identity, or

pronouns.�

• Misgendering can qualify as sex-based

harassment if severe, pervasive, and objectively offensive.

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• Schools should assess misgendering on a case by case basis.

Notice of Sexual Harassment

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• The District has “actual notice” of sexual harassment if any employee hears or is told about the harassment or witnesses it.

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• Any person may report sex discrimination or sexual harassment to any employee orally or in writing.

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• If you observe or are told about any incident of sexual harassment, you should inform the Title IX Coordinator, Amanda Robinson.

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When Does Title IX apply?

• Title IX does not address all sexual harassment allegations:

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• Conduct must occur on campus or in a setting that the District controls (e.g., school bus, “away” game)

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• Remember, if you are dealing with the “unwelcome conduct” prong, then the conduct must be severe AND pervasive AND objectively offensive – one-time incidents may not rise to this level

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• Sex-based behavior may violate state law and District policy even if it does not meet Title IX criteria.

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Hypothetical

Maria and Mark are both fifth graders who have never gotten along. At the beginning of the school year, Mark is disciplined for intentionally tripping Maria in the school yard. The next week, Mark reports that Maria and her friends are shouting at him, calling him smelly and ugly. According to Maria, he responds by chasing them around the yard, calling them fat whores and trying to pinch their bottoms. In October, their teacher brings in a drawing she saw Mark showing to the boy who sits next to him. The drawing shows a naked girl and is captioned “mildewy Maria”.

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Does Title IX apply?

Hypothetical

Julia claims that Bobby, a boy in her 7^th grade social studies class, has been texting her inappropriate comments afterschool and making sexual remarks to her in class about how he likes chubby girls. Julia also alleged that Bobby has tried to touch her breasts during class multiple times.

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Does Title IX apply?

Hypothetical

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Does Title IX apply?

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A transgender student is consistently misgendered by a teacher, despite repeated corrections. The misgendering occurs in front of peers, causing embarrassment and leading the student to skip class.

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1. Does this behavior meet the Title IX 2020 Regs?

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• What factors make it severe, pervasive, and objectively offensive?

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• What if the teacher misgendered the student a few times, immediately apologized--would this still rise to the level of Title IX harassment?

More Hypotheticals

Which of the following is likely to constitute severe, pervasive, and objectively offensive conduct under Title IX:

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1. A single unwelcome hug by another student.

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• A teacher making repeated sexually suggestive and harassing comments to her students.

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• A group of second grade boys chasing girls at recess every day and trying to kiss them.

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• Several unrelated, unrepeated incidents of brief unwanted touching by separate individuals over the course of several years.

5. A student being subject to repeated harassing comments and one incident of having another student expose their genitals close to her.

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Title IX Team

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1. Title IX Coordinator
2. Investigator
3. Decision Maker
4. Appeal Decision-Maker
5. Facilitator(s) of the Informal Resolution Process

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All team members need to have received training in the definition of sexual harassment, the scope of the District’s education program, the Title IX complaint process, and how to serve impartially, as well as the specific requirements of their role.

Impartiality

• All team members must be impartial, unbiased and free from conflicts!!

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• Team members should not have:
• Personal relationship (friendship, family relationship) with parties
• History of conflict with parties

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• Avoid prejudgment of facts based on prior knowledge or bias for or against complainants or respondents

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• Bias/conflict of interest is ultimately a reason the parties can appeal the decision, so you may also want to consider how team members will appear to the parties

Title IX Investigator(s)- Duties

• Trained and knowledgeable.

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• Interviews parties and identifies witnesses.

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• Identify, organize, synthesize, and compile relevant information.

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• Maintain accurate and thorough investigation records and notes.

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• Assess relevance and credibility.

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• Maintain accurate and thorough investigation records and notes.

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Title IX Investigator(s)- Duties Cont’d

• Write a clear, concise and comprehensive investigation report - does not make decision about whether Respondent is “responsible” for violation of sexual harassment policy

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• At least 10 days prior to the determination of responsibility, send the investigation report to parties for their review and written response.

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• Send final investigation report to assigned Decision-Maker(s).

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You Receive a Report Alleging Sex Harassment… ��

Now what???

Before a Formal Complaint is Filed

• If an employee receives a report of sexual harassment, it should be forwarded to the Title IX Coordinator within one day

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• Site administrator and/or Title IX Coordinator - Talk to the Complainant

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• Get details of incident(s) – dates, individuals involved
• Explain Title IX rights, including the right to file a complaint
• Provide a copy of the Title IX complaint procedures and Title IX coordinator contact info
• Discuss supportive measures and needed support

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Supportive Measures

• Supportive measures are nondisciplinary and nonpunitive

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• Designed to:
• Restore or preserve equal access to the district's education program
• Protect the safety of all parties;
• Protect the district’s educational environment; and/or
• Deter sexual harassment

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• Cannot unreasonably burden the other party

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• Examples:
• Counseling
• Modifications of class schedules
• Mutual restrictions on contact
• Increased security
• Monitoring of certain areas of the campus

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• Available whether or not a complaint is filed

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Emergency Removal

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• No discipline for Title IX offense before process is completed BUT

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• The District may remove a respondent on an emergency basis if it:

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• Conducts an individualized safety and risk analysis,

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• Finds an immediate threat to the physical health or safety of any student or other person, and

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• Provides the respondent with notice and an opportunity to challenge the decision immediately after the removal.

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When a Formal Complaint is Filed

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• Title IX Coordinator must notify the parties in writing of:

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• What is alleged: the parties, the alleged conduct, and the date and location of alleged incident (if known);

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• That the respondent is presumed not to be responsible for the alleged conduct; and

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• Their right to have an advisor of their choice, who may be an attorney, and their right to inspect evidence.

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• Investigation should not start until parties are notified. Respondent can NOT be punished in any way until the Title IX matter is completed.

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What if the Complainant does not file a formal complaint?

• The Title IX Coordinator must file a complaint in situations where a safety threat exists.

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• The Title IX Coordinator must file a complaint if the District wants to discipline the student for the conduct.

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• The Title IX Coordinator may file a formal complaint in other situations, including as part of the District's obligation to not be deliberately indifferent to known allegations of sexual harassment.

Title IX Complaint Process Timeline

• Day 0: Formal complaint is received by the District
• Title IX Coordinator sends notice of the allegations to be investigated to the parties
• Investigation begins
• Day 40: Investigation should be complete, and parties sent the evidence
• Parties have a chance to review and respond to the evidence (must have at least 10 days to review)

Title IX Complaint Process Timeline

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• Day 50: Investigative report sent to the parties (must be sent at least 10 days before the written determination)
• Parties have a chance to review and respond to investigative report and submit questions of witnesses
• Day 60: Written determination sent to the parties
• Day 70: Last chance for parties to file an appeal
• Day 90: Written appeal determination sent to the parties

Time to Investigate!

Investigation

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• Investigation must provide equal opportunity for both parties to present witnesses and evidence.

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• No “gag rule” – parties must be able to discuss allegations and gather evidence.
• This means that if the parties sign a no contact order, it cannot include that they will not discuss the allegations at all. It can prevent the parties from talking to each other and spreading rumors.

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Investigation

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• Must provide written notice of any interview of the parties with time to prepare.

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• No limitation on parties’ right to have an advisor present at any interview or meeting. However, the District can limit the advisor’s participation during a meeting.

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• Both parties must have the opportunity to inspect and review evidence, and respond in writing, before the investigative report is completed.

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Checklist for “Hostile Environment” Sexual Harassment

• Did the Respondent do something that affected the complainant, based on sex?
• Was the conduct unwelcome?
• Did the conduct occur at school, during a school activity, or in a place that the District controlled?
• Was the conduct severe and pervasive and objectively offensive?
• Did the conduct interfere with the complainant’s ability to participate in school or extracurricular activities?
• Would the conduct have had this effect on a “reasonable person” in the same position?

Hypothetical

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• You are the principal of a middle school. A teacher reports to you that Julia, a student in her sixth-grade class, just told her that a boy has been making graphic sexual and obscene comments directed at girls in the cafeteria. She tells you that the lunchroom monitor has told the boy to knock it off, but it has continued. Julia decided to report it because the boys have been trying to grab her by her private parts.

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• Julia’s mother files a complaint alleging that Tommy has been making sexual remarks to her daughter and other female students in the lunchroom and that Tommy has repeatedly touched Julia inappropriately.

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1. Who should you interview?
2. What evidence might be relevant?

Investigation-Create a Plan

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• Outline the allegations, based on the notification letters to the parties
• Consider what facts are needed to prove or disprove each allegation – look at the Checklist
• Identify witnesses
• Parties
• Witnesses identified by parties
• Other possible witnesses to the incident(s)
• Supervision staff
• Other students in the area
• Friends/confidants of the parties
• Other potential evidence (does anything need to be preserved?)

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Investigation Plan

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Draft Questions for Witnesses

• Start with background: How long have you known Mary? Where do you usually eat lunch?
• Establish the background for the alleged incidents and the relationship between the parties
• Understand how witnesses were in a position to know about the incident
• Get witnesses talking about a neutral subject

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• Ask questions to obtain as many facts as possible about the incident (who, where, why do you think it happened, who else was there?)

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• Ask the parties if they discussed the incident with anyone else

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• Ask the complainant how the incident affected him/her

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Questions (cont.)

• Form of the Questions

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• Open-ended

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• Don’t supply answer, but give context if needed

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• Be flexible - use questions as a guide, not a script!

Investigation- Trauma Informed Questioning

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Use Trauma Informed Questioning:

• Reframe questions in a manner that helps individual retrieve memories from a traumatic event and assist in gathering more information while making the individual feel more supported:

-compassion

-empathy

-patience

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• Applies to both parties and sometimes witnesses.

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• Identify signs of trauma and consider them in questioning.

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• Shift mindset from “What is wrong with you?” to “What happened to you?”

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Exercise: Which Question is Better?

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SAMPLE 1:

What happened in your class

yesterday morning? _____

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Did you call a child a sissy yesterday? _____

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SAMPLE 2:

Did you grab Johnny by his shirt? _____

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Was a child misbehaving in the food line? _____

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Exercise: Which Question is Better?

SAMPLE 3:

Did Michael touch your breasts? _____

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Where did Michael touch you on your body? _____

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SAMPLE 4:

Are you sexually active with the accused? _____

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How would your describe your relationship

with the accused? _____

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Investigation- Witness Interviews

Start with “THE RULES”

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1) Neutrality of investigator.

2) Confidentiality– How does it work?

• Express need for confidentiality- limited
• Do NOT promise confidentiality

3) Determine if you need a translator.

4) Take notes (typed notes may be preferred).

5) Review responses (with adult witnesses).

6) Ask the Complainant and Respondent to identify additional witnesses.

7) Consider other sources of information to verify.

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Investigation- Witness Interviews Cont’d…

• Explain the process

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• Review written allegations with both parties

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• Ask for as much detail as possible:
• Date, Time, Place, Frequency (estimates if needed)
• Demonstration (physical, distance, sounds)

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• Ask follow-up questions
• To clarify and expand answers
• To pursue new issues

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Investigation- Witness Interviews Cont’d…

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Interviewing Students:

• Do not ask leading questions.
• Demonstrations.
• Written statements.
• Note your perceptions with rationale.
• Feelings are important.

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Investigation- Witness Interviews Cont’d…

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Interviewing Employees:

• The Right to Representation - Weingarten
• Collective Bargaining Agreement
• The Obligation to Participate/ Spielbauer Case
• “Taking the Fifth” Consider Lybarger Warning

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Investigation- Witness Interviews Cont’d…

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Interviewing the Respondent:

• Allow for a response to each allegation
• Right to know “who”
• Ask for evidence or witness names to verify
• Ask why they believe the Complainant might have raised the allegations

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Investigation Cont’d…

Keys to Conducting Effective Investigations:

• LISTEN
• No confrontational or accusatory questions
• Pay attention to body language
• Don’t jump in when the witness is quiet
• Be patient, friendly and maintain objectivity
• Be sensitive
• Be CONFIDENTIAL (no sharing….even without “names”)

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The Art of Note Taking

• What to include:
• Who, What, Where, When, Why, How
• Summary of question and response
• Investigator’s Observations

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• What NOT to include:
• Groundless accusations
• Personal opinions
• Extraneous information

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Common Mistakes in Investigations

• Delay
• Directed Conclusions
• Group Interviews
• Leading Questions
• FAILURE to document

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Relevance

• Common sense consideration – is evidence related to the allegation and facts needed to prove it
• Prohibitions:
• No questions about complainant’s sexual predisposition or prior activities!
• If Respondent or witnesses raise the issue, redirect and do not record
• Exceptions:
• Prior relationship with Respondent used to prove consent
• Used to prove someone other than the Respondent committed the alleged conduct
• No questions about witness conversations with their lawyer, doctor, psychologist, etc.

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Opportunity to Inspect Evidence

• Before the investigator issues the investigation report, parties must be given at least 10 days to inspect and review all evidence gathered by the investigator.

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• Parties may inspect and review evidence even if it will not be relied upon in the determination.

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• If there is a conflict between FERPA and Title IX, Title IX governs.

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Writing the Investigative Report

• Purpose- summarize the relevant evidence for the Decision-Maker to make a determination of responsibility (not “guilt”).

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• Investigative report should include:
• Who performed the investigation
• Which witnesses and parties were interviewed
• Summaries of witness testimony
• Summary of all other evidence reviewed

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Handoff to the Decision-Maker

• At least 10 days prior to the determination of responsibility, the investigator must send the investigative report to each party and the party’s advisors in electronic format or hard copy, for their review and written response.

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• Investigator also sends the investigative report and all the evidence to the Decision-Maker to review.

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Determination of Responsibility

• Before making a decision, the Decision-Maker will must afford each party the opportunity to submit written, relevant questions that a party wants asked of ay party or witness, provide each arty with the answers, and allow for additional, limited follow up questions from each party:
• The Decision-Maker must explain any decision to exclude questions as not relevant

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• Decision-Maker determines responsibility based on preponderance of the relevant evidence.

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• Evidence about Complainant’s prior sexual behavior is irrelevant unless offered to prove someone else committed the conduct or if offered to prove consent

Decision-Maker’s Report

• Decision-Maker must issue a written report that includes:
• Identification of the allegations potentially constituting sexual harassment;
• A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notification to the parties, interviews with parties and witnesses, site visits, and methods used to gather other evidence;
• Findings of fact supporting the determination;
• A statement of, and rationale for, any disciplinary actions the District imposes on the respondent, and whether remedies designed to restore or preserve equal access to the District’s education program or activity will be provided to the complainant; and
• The District’s procedures and permissible bases for the complainant and respondent to appeal.

Decision-Maker’s Factual Findings

• Make a factual finding regarding every material allegation in the complaint:
• Sustained or Not Sustained

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• Factors in Accessing Credibility:
• Corroboration / Lack of Corroboration
• Consistent / Lack of Consistency
• Knowledge or Opportunity to Observe
• Inherent Plausibility – is the testimony believed on its face?
• Demeanor – did the person seem to be telling the truth or lying?
• Motive to Falsify – did the person have a reason to lie?

Tips for Decision-Maker’s

Report Writing

• Build and Use a Template

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• Use the Active Voice

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• Use Headings, Bullet Points and Table as necessary

Privacy Considerations

• Keep confidential the identity of anyone who reports sexual harassment, files a complaint, or is accused of sexual harassment except as necessary to conduct an investigation

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• BUT, keep in mind confidentiality is limited in practice:
• Respondents are entitled to written notice if a formal complaint is filed
• Parties’ ability to discuss the allegations may not be limited
• Parties must be permitted to review all evidence, including witness statements
• Complainant must be informed of all remedies, including discipline of the respondent, regardless of FERPA considerations

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Appeal

• Both parties get 10 days to file an appeal in writing from either a decision made after an investigation or from the dismissal of a formal complaint.

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• 3 Bases for Appeal:
• Procedural irregularity that affected the outcome;
• New evidence that was not previously available and would affect the outcome; or
• Conflict of interest or bias by Title IX Coordinator, investigator or decision-maker that affected the outcome.

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Final Thoughts

Three things I hope you remember….

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• You don’t have to know every answer.

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• You do have to recognize potential Title IX concerns. When in doubt……….

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• The biggest mistake administrators make isn’t asking for help. It’s waiting too long to ask for it.

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Title IX

jly@ghslaw.com

Bakersfield