Title IX Staff Training:�Understanding Title IX and its Importance�

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MARK MORFORD, ESQUIRE

MCKENNA SNYDER LLC

350 EAGLEVIEW BLVD, STE 100

EXTON, PA 19341

610-524-8454

MMORFORD@MCKENNALAWLLC.COM

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Reproduction or use of any of this material without express written consent is prohibited. The statements and representation in this presentation does not constitute legal advice.

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Stone Valley Charter School

November 8, 2024

Learn More at

mckennalawllc.com

Title IX Key Points�

• All employees are mandatory reporters in addition to Title IX Requirement

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• All employees must report incidents of sexual discrimination to Title IX Coordinator with the exception of confidential employees

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• All confidential employees must advise complaints of their rights

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• School cannot implement discipline before the conclusion of a Title IX investigation, or before determining if an investigation will be initiated

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• If a student or employer reports something, even if it occurred off campus (home, school trip, etc.), report it to your administrator and one of the Title IX coordinators so that an appropriate determination can be made.

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Title IX of the Education Amendments of 1972 �

• Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq., protects students from discrimination based on sex in educational programs or activities that receive Federal financial assistance.
• The most recent Title IX Regulations went into effect on August 1, 2024.

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Title IX Basics

• Title IX protects people from discrimination based on sex in education programs or activities that receive federal financial assistance.
• It covers all aspects of educational systems including:
• Admissions
• Athletics
• Treatment of students and employees

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Scope of Title IX

• Title IX covers:
• Student-to-Student
• Employee-to-Student
• Student-to-Employee
• Employee-to-Employee
• Third Party-to-Student
• Third Party-to-Employee

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Title IX's Impact on Education

• Title IX has:
• Promoted gender equality in sports and academics.
• Increased awareness and reporting of sexual harassment and assault.
• Enhanced protections and support for victims of discrimination.

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Key Updates Over the Years

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Doe v. University of Kentucky, 971 F.3d 553 (6th Cir. 2020)

Responding to Sex Discrimination - Simplified

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• A school with knowledge of conduct that reasonably may constitute sex discrimination in its education program or activity must respond promptly and effectively.
• ALL employees who are not confidential employees must notify the Title IX Coordinator when the employee has information about conduct that reasonably may constitute sex discrimination under Title IX.

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Overview of 2024 Changes

• The 2024 changes introduce new guidelines and enhanced protections, focusing on creating a more inclusive and supportive educational environment.

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Overview of 2024 Updates (cont.)

• Prohibit discrimination against LGBTQI+ students, employees, and others
• Protects pregnant individuals and those with related conditions
• Requires communication of nondiscrimination policies and procedures
• Precedence over State/Local Laws
• Provides choice for Standard of Evidence

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Sex-Based Harassment

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Discrimination on the basis of sex

• Discrimination on the basis of sex includes:
• discrimination on the basis of sex stereotypes,
• sex characteristics,
• pregnancy or related conditions,
• sexual orientation,
• and gender identity

§ 106.10

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Sex-Based Harassment�

• Is a form of sex discrimination and means sexual harassment as well as other harassment on the basis of sex.
• 3 categories, according to the U.S. Department of Education
• Quid Pro Quo harassment
• Hostile Environment harassment
• Specific Offenses
• Involves unwelcome conduct
• Must be non-consensual and sexual
• Unwelcome conduct can include: verbal conduct, attempted physical conduct, and actual physical conduct.
• Be careful not to consider past consensual conduct!

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Sex-Based Harassment: Quid Pro Quo Harassment

• Quid Pro Quo harassment - An employee, agent, or other person authorized by the school to provide an aid, benefit, or service under the school's education program or activity explicitly or impliedly conditioning the provision of such an aid, benefit, or service on a person's participation in unwelcome sexual conduct.

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Sex-Based Harassment: Hostile Environment Harassment

• Hostile Environment harassment is unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person's ability to participate in or benefit from the school's education program or activity (i.e., creates a hostile environment).

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Sex-Based Harassment Hostile Environment Harassment

• Whether a hostile environment is created is a fact-specific inquiry including:
• The degree to which the conduct affected the complainant's ability to access the school’s education program or activity;
• The type, frequency, and duration of the conduct;
• The parties' ages, roles within the school's education program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the conduct;
• The location of the conduct and the context in which the conduct occurred; and
• Other sex-based harassment in the school's education program or activity.

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Sex-Based Harassment: Specific Offenses�

• Sexual assault - an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation;
• Dating violence - violence committed by a person who is or has been in a romantic or intimate nature with the victim;
• Domestic violence – crime committed by person who is a current or former spouse or intimate partner of the victim; is or was cohabitating with the victim as a spouse or partner; shares a child in common; or commits acts against a youth or protected adult victim; and
• Stalking – engaging in conduct directed at a specific person that would cause a reasonable person to fear for the person’s safety or safety of others OR suffer substantial emotional distress.

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Unfair treatment on the basis of sex

• Disparate treatment vs. Disparate impact
• Disparate treatment – intentional discrimination in which people in protected class are treated differently.
• Disparate impact – unintentional discrimination in which people in protected class are negatively affected by a policy/practice/rule that seems neutral.

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Sex-Based Harassment – Reasonable person�

• When considering whether the conduct is sexual harassment, you must approach the question from the perspective of a reasonable person.
• Do not consider any predisposition of the complainant.
• No “eggshell plaintiffs.”
• No unusual phobias or paranoia.
• Do not consider what you would feel under the circumstances.

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Sex-Based Harassment – �Severe or Pervasive �

• Very high bar to reach.
• Offhand comments, one-time occurrences, do not often rise to the level of “severe” or “pervasive.”
• Some age-appropriate conduct may be inappropriate in a school environment but may not rise to the level of “severe.”
• Multiple instances of conduct over a period of time will be more likely to rise to the level of “pervasive.”

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34 CFR §106

Sex-Based Harassment – Objectively Offensive

• Not subject to any specific circumstances or pre-existing conditions.
• For example:
• A student has been previously assaulted by an individual wearing a red shirt, the student subsequently reports that another student is wearing a red shirt and the student finds it deeply offensive.
• Must be offensive under any circumstances.

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34 CFR §106

Sex-Based Harassment – �Denies Equal Access

• The most important element of Title IX’s definition of Sexual Harassment.
• Title IX’s purpose is primarily to ensure equal access.
• Important to discern whether the Complainant is afraid to come into the school building or is unable to participate in an educational program or activity.
• Example
• A student is harassed by a fellow student during math class and now refuses to participate in math class.

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34 CFR §106

Complainant

• A student or employee who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX; or
• A person other than a student or employee who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX and who was participating or attempting to participate in the school's education program or activity at the time of the alleged sex discrimination.

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Respondent

• A person who is alleged to have violated the school's prohibition on sex discrimination

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Complaint

• An oral or written request to the school that objectively can be understood as a request for the school to investigate and make a determination about alleged discrimination under Title IX.
• Note – does not need to be written and does not need to be signed
• There are no “magic words”. As long is it can be understood as a request to investigate a potential Title IX claim, treat it as a complaint!

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Confidential Employee

• An employee of a school whose communications are privileged or confidential under Federal or State law.
• The employee's confidential status is only with respect to information received while the employee is functioning within the scope of their duties to which privilege or confidentiality applies;
• An employee of a school whom the school has designated as confidential for the purpose of providing services to persons related to sex discrimination.
• If the employee also has a duty not associated with providing those services, the employee's confidential status is only with respect to information received about sex discrimination in connection with providing those services;

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Pregnancy or related conditions

• Pregnancy, childbirth, termination of pregnancy, or lactation;
• Medical conditions related to pregnancy, childbirth, termination of pregnancy, or lactation; or
• Recovery from pregnancy, childbirth, termination of pregnancy, lactation, or related medical conditions.

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Remedies

• Measures provided, as appropriate, to a complainant or any other person the school identifies as having had their equal access to the school's education program or activity limited or denied by sex discrimination.
• Provided to restore or preserve that person's access to the school's education program or activity after a school determines that sex discrimination occurred.

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Retaliation

• Intimidation, threats, coercion, or discrimination against any person by the school, a student, or an employee or other person authorized by the school to provide aid, benefit, or service under the school's education program or activity, for the purpose of interfering with any right or privilege secured by Title IX.
• OR because the person has reported information, made a complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing, including in an informal resolution process under § 106.44(k), in grievance procedures under § 106.45, and if applicable § 106.46, and in any other actions taken by a school under § 106.44(f)(1).

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Supportive Measures

• Individualized measures offered as appropriate, as reasonably available, without unreasonably burdening a complainant or respondent, not for punitive or disciplinary reasons, and without fee or charge to the complainant or respondent to:
• Restore or preserve that party's access to the school's education program or activity, including measures that are designed to protect the safety of the parties or the school's educational environment; or
• Provide support during the school's grievance procedures under § 106.45, and if applicable § 106.46, or during the informal resolution process under § 106.44(k).

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Remedial and affirmative action §106.3

• Remedial action – if a school has discriminated against persons on the basis of sex, they must take such remedial action as deemed necessary to remedy the violation.
• Affirmative action – in the absence of a finding of discrimination on the basis of sex, a school may take affirmative action to overcome effects of conditions which resulted in limited participation by persons of a particular sex.

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Effect of other requirements §106.6

• Title IX is independent of, and does not alter, any obligations not to discriminate under any Act of Congress or Federal Regulation;
• Title IX obligations are not alleviated by any State or local law or other requirement that conflicts with Title IX;
• Title IX obligations are not alleviated by any rule or regulation of private organizations in receipt of Federal assistance that conflicts with Title IX; and
• Same goes for employment opportunities more limited for members of one sex than the other(§106.7).

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Designation of Title IX coordinator §106.8(a)

• Each school must designate and authorize at least one employee as a Title IX Coordinator.
• If a school has more than one Title IX Coordinator, it must designate one of its Title IX Coordinators to retain ultimate oversight over those responsibilities and ensure the school's consistent compliance with its responsibilities under Title IX.
• Coordinators can delegate specific duties to one or more designees.

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Adoption, publication, and implementation of nondiscrimination policy and grievance procedures §106.8(b)

• Nondiscrimination policy – must adopt, publish, and implement a policy stating the school does not discriminate on the basis of sex and prohibits sex discrimination as required by Title IX.
• Grievance procedures – must adopt, publish, and implement grievance procedures consistent with Title IX requirements that provide for prompt and equitable resolution of complaints that allege any action that would be prohibited by Title IX.

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Notice of nondiscrimination §106.8(c)

• A school must provide a notice of nondiscrimination to students; parents, guardians, or other authorized legal representatives of elementary school and secondary school students; employees; applicants for admission and employment; and all unions and professional organizations holding collective bargaining or professional agreements with the school.

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Notice of nondiscrimination §106.8(c)

• Notice must contain:
• A statement that the school does not discriminate on the basis of sex and prohibits sex discrimination;
• A statement that inquiries about the application of Title IX to the school may be referred to the school's Title IX Coordinator, the Office for Civil Rights, or both;
• The name or title, office address, email address, and telephone number of the school’s Title IX Coordinator;

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Notice of nondiscrimination §106.8(c)

• Notice must contain (cont.):
• How to locate the school's nondiscrimination policy under paragraph (b)(1) of this section; and the school's grievance procedures under paragraph (b)(2) of this section; and
• How to report information about conduct that may constitute sex discrimination under Title IX; and how to make a complaint of sex.

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Notice of nondiscrimination §106.8(c)

• Publication of notice of nondiscrimination:
• Each school must prominently include all elements of its notice of nondiscrimination on its website and in each handbook, catalog, announcement, bulletin, and application form that it makes available;
• If necessary, the school may instead include in those publications a statement that the school prohibits sex discrimination in any education program or activity that it operates and that individuals may report concerns or questions to the Title IX Coordinator, and provide the location of the notice on the school's website; and
• A school must not use or distribute a publication stating that the school treats applicants, students, or employees differently on the basis of sex, except as such treatment is permitted by Title IX.

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Mandatory Training Requirements §106.8(d)

• The school must ensure that all staff receive training related to their duties under Title IX promptly upon hiring or change of position that alters their duties under Title IX, and annually thereafter.

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Mandatory Training Requirements §106.8(d)(1)

• All employees require the following:

(i) The school’s obligation to address sex discrimination in its education program or activity;

(ii) The scope of conduct that constitutes sex discrimination under Title IX, including the definition of sex-based harassment; and

(iii) All applicable notification and information requirements under

§§ 106.40(b)(2) and 106.44.

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Mandatory Training Requirements §106.8(d)(2)

• In addition to the training requirements in §106.8(d)(1), Investigators, decisionmakers, and other persons responsible for implementing grievance procedures or have the authority to modify or terminate supportive measures must get additional training on:

�(i) The school’s obligations under § 106.44; and

(ii) The school's grievance procedures under § 106.45, and if applicable

§ 106.46;

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Mandatory Training Requirements §106.8(d)

• Investigators, decisionmakers, and other persons responsible for implementing grievance procedures or have the authority to modify or terminate supportive measures (cont.)

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(iii) How to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias; and

(iv) The meaning and application of the term “relevant” in relation to questions and evidence, and the types of evidence that are impermissible regardless of relevance under § 106.45, and if applicable § 106.46.

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Mandatory Training Requirements §106.8(d)(3)

• Facilitators of informal resolution process
• In addition to the training requirements in §106.8(d)(1), must get additional training on the rules and practices associated with the school’s informal resolution process and on how to serve impartially, including by avoiding conflicts of interest and bias.

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Mandatory Training Requirements §106.8(d)(4)

• Title IX Coordinator and designees
• In addition to the training requirements in §106.8(d)(1), must get additional training on specific responsibilities under paragraph (a) of this section, §§ 106.40(b)(3), 106.44(f) and (g), the school's recordkeeping system and the requirements of paragraph (f) of this section, and any other training necessary to coordinate the school's compliance with Title IX.

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Students with Disabilities §106.8(e)

• Students with disabilities - a student who is an individual with a disability as defined in the Rehabilitation Act of 1973 or a child with a disability as defined in the Individuals with Disabilities Education Act (§106.2).
• If a complainant or respondent is an elementary or secondary student with a disability, Title IX Coordinator MUST consult with appropriate members of the student’s IEP team to determine how to comply with IDEA and the Rehabilitation Act throughout the grievance procedure.

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Recordkeeping §106.8(f)

• A school must maintain for a period of at least seven (7) years:

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1. For each complaint, records documenting the informal resolution process or the grievance procedures and the resulting outcome;
2. For each notification the Title IX Coordinator receives of information about conduct that reasonably may constitute sex discrimination, records documenting the actions the school took to meet its obligations under § 106.44; and
3. All materials used to provide training under paragraph (d) of this section. A school must make these training materials available upon request for inspection by members of the public.

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Recordkeeping – �Best Practices

• Comprehensive Documentation;
• Confidentiality Protocols;
• Accurate and Timely Recording;
• Compliance with Legal Requirements;
• Regular Audits and Reviews;

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Best Practices (continued)

• Incident Tracking System;
• Training for Staff;
• Documentation of Supportive Measures;
• Clear Record Retention Policies; and
• Response to Records Request.

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Coverage of Title IX�

• Applies to every school and to all sex discrimination occurring under school’s education program or activity in the United states.

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• Includes conduct that is subject to the school's disciplinary authority.
• A school has an obligation to address a sex-based hostile environment under its education program or activity, even when some conduct alleged to be contributing to the hostile environment occurred outside the school's education program or activity or outside the United States.

§106.11

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Coverage of Title IX (cont.)

• Exceptions
• Does not apply to educational institutions controlled by religious organizations to the extent it would be inconsistent with their religious tenets - §106.1.1
• Does not apply to fraternities or sororities, YMCA/YWCA/Girl Scouts/Boy Scouts/Campfire Girls, or voluntary youth service organizations - §106.14.
• Does not apply to admissions to educational institutions prior to June 24, 1973 or undergraduate higher education that only admitted one sex from establishment - §106.15.

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Discrimination on the Basis of Sex in Admission and Recruitment

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Admission §106.21�

• No person shall, on the basis of sex, be denied admission, or be subjected to discrimination in admission, by any school to which Title IX applies.
• Specifically, school cannot:
• Give preference to an applicant on the basis of sex or by ranking applicants separately by sex;
• Applying numerical limitations on the number or proportion of applicants by sex;
• Treat one individual different from another on the basis of sex;
• Administer tests for admission that disproportionately affects people on the basis of sex UNLESS alternative tests are not available and it validly predicts success in the program;

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Admission §106.21 (cont.)�

• Parental, family, or marital status; pregnancy or related conditions.
• Must treat pregnancy or related condition in the same manner and under same policies as any other temporary medical condition.
• Must not:
• Adopt/implement anything regarding current, potential or past parental, family, or marital status that treats people differently on the basis of sex;
• Discriminate against any person on the basis of current, potential, or past pregnancy or related conditions; and
• Make pre-admission inquiry as to marital status.
• May ask applicant to self-identify sex.

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Preference in Admission §106.22�

• School shall not give preference to applicants for admission at an educational institution that admits students only (or predominantly) members of one sex, if giving such preference has the effect of discriminating on the basis of sex.

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• Does not apply to institutions that traditionally and continuously, from establishment, only admitted one sex.

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Discrimination on the Basis of Sex in Education Programs or Activities

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Education Programs or Activities�

Generally, discrimination on the basis of sex is prohibited in the following areas:

• Academic, extracurricular, research, occupational training, or other education program or activity operated by a school - §106.31.
• Housing- §106.32.
• Comparable facilities - §106.33.
• A school may provide separate toilet, locker room, and shower facilities, but they shall be comparable for both sexes.
• Access to Classes and School - §106.34.
• Exceptions: contact sports, ability grouping in physical education classes, human sexuality classes, and choruses.
• Access to institutions of vocational education - §106.35.

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Education Programs or Activities (cont.)�

• Counseling and use of appraisal and counseling materials - §106.36.
• Financial assistance - §106.37.
• Employment assistance - §106.38.
• Health and insurance benefits - §106.39.

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Parental, family, or marital status; pregnancy or related conditions §106.40��

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• A school must not adopt or implement any policy, practice, or procedure concerning a student's current, potential, or past parental, family, or marital status that treats students differently on the basis of sex.

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Pregnancy or related conditions §106.40 (cont.)��

• School must not discriminate based on student’s current, potential, or past pregnancy or related conditions;
• When school is informed of a student’s pregnancy, they must promptly provide the Title IX Coordinator contact information and inform the individual that the Coordinator can ensure the student’s equal access;
• School must make reasonable modifications to prevent sex discrimination and ensure equal access, such as:
• Breaks to pump milk, breastfeed, attend health needs associated with pregnancy or related conditions (e.g. eating, drinking, restroom use), intermittent absences to attend medical appointments, access to online/homebound education, extensions for coursework, etc.
• School must treat pregnancy or related condition in the same manner as any other temporary medical condition.

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Athletics §106.41�

• School cannot discriminate on the basis of sex in any interscholastic, intercollegiate, club or intramural athletics offered by a school, and no school shall provide any such athletics separately on such basis.

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• Can have separate teams for each sex based on competitive skill OR when it is a contact sport;
• Must provide equal athletic opportunity for members of both sexes; and
• Unequal aggregate expenditures for members of each sex or male/female teams does NOT constitute noncompliance, but could be considered a failure to provide necessary funds for teams of one sex in assessing equal opportunity.

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School’s Response to Sex Discrimination

§106.44

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Responding to Sex Discrimination – General §106.44(a)

• A school with knowledge of conduct that reasonably may constitute sex discrimination in its education program or activity must respond promptly and effectively.
• Must also take the actions to address sex discrimination in its education program or activity.
• Barriers to Reporting §106.44(b) - School must require Title IX Coordinator to:
• Monitor school’s education program or activity for barriers to reporting information about conduct that may constitute sex discrimination and take steps reasonably calculated to address such barriers.

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Responding to Sex Discrimination – Notification Requirements §106.44(c)

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• An elementary school or secondary school school must require all of its employees who are not confidential employees to notify the Title IX Coordinator when the employee has information about conduct that reasonably may constitute sex discrimination under Title.

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Responding to Sex Discrimination – Confidential Employee Requirements §106.44(d)

• A school must notify all participants in the school's education program or activity of how to contact its confidential employees.
• Confidential employees can include, but are not limited to:
• Physical health care employees;
• Mental health care employees; and
• Pastoral/religious counselors.

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Responding to Sex Discrimination – Confidential Employee Requirements §106.44(d)

• A school must require a confidential employee to explain to any person who informs the confidential employee of conduct that reasonably may constitute sex discrimination under Title IX:

(i) The employee's status as confidential, including the circumstances in which the employee is not required to notify the Title IX Coordinator about conduct that reasonably may constitute sex discrimination;

(ii) How to contact the school's Title IX Coordinator and how to make a complaint of sex discrimination; and

(iii) That the Title IX Coordinator may be able to offer and coordinate supportive measures, as well as initiate an informal resolution process or an investigation under the grievance procedures.

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Key Players in the Title IX Process

• Title IX Coordinators:
• Responsible for coordinating the school’s compliance with its obligations under Title IX, including: compliance, training, investigation, overseeing grievance procedures, recordkeeping, ensuring non-retaliation, instituting supportive measures, and maintaining confidentiality
• Investigators:
• Assigned by the Title IX Coordinator (or the Title IX Coordinator themselves); responsible for investigation into alleged Title IX misconduct

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Key Players in the Title IX Process

• Decision-Makers:
• Oversee the hearing, administrative determination proceeding, or reviews appeals; cannot be the Title IX Coordinator unless they are properly trained and free of bias or conflicts of interest.

• Facilitators:
• Mediators who oversee the informal resolution process that both parties agree, in writing, to resolve using restorative justice or mediation practices.

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Response to Allegations – �Overview

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Supportive Measures and Emergency Removal Policies

• Must be provided when there are allegations of sex discrimination.
• New guidelines ensure supportive measures do not unreasonably burden either party.
• Examples include counseling services, modifications to work or class schedules, and mutual restrictions on contact between parties.
• Emergency removal policies now require a safety and risk analysis before removing a respondent and immediate threat assessments to physical health or safety.

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Responding to Sex Discrimination – Supportive Measures §106.44(g)�

• Under the Title IX regulations, both the complainant and the respondent are entitled to receive supportive measures. 34 C.F.R. § 106.44(f).
• May vary depending on what school deems is reasonably available.
• Must not unreasonably burden either party and must not impose measures for punitive or disciplinary reasons.
• School may modify or terminate supportive measures at the conclusion of the grievance procedure or informal resolution process (complainant or respondent may appeal the school’s decision to modify or terminate supportive measures as well).

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Responding to Sex Discrimination – Supportive Measures §106.44(g) (cont.)�

• School must not disclose information about any supportive measures to persons other than person to whom they apply.

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• If the complainant or respondent is an elementary or secondary student with a disability, the Title IX Coordinator must consult with one or more members, as appropriate, of the student’s IEP team or people responsible for the student’s placement, to determine how to comply with the requirements of the IDEA, 20 U.S.C. 1400 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, in the implementation of supportive measures.

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Supportive Measures in Practice

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34 CFR Sec. 106.44(g)

Supportive Measures in Practice

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34 CFR Sec. 106.44(g)

Creating a Supportive Environment

• Strategies for promoting an inclusive and supportive educational environment while preventing discrimination and harassment.

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• Clear Anti-Discrimination Policies;
• Comprehensive Training Programs;
• Inclusive Curriculum and Pedagogy;
• Support Services and Resources;
• Creating Safe Spaces;

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Supportive Environment (continued)

• Encouraging Reporting and Support;
• Regular Assessment and Surveys;
• Zero Tolerance for Discrimination;
• Inclusive Leadership;
• Community Engagement; and
• Transparent Communication.

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Responding to Sex Discrimination – Emergency Removal Procedures §106.44(h)�

• A school can remove a respondent on an emergency basis, but they must perform an individualized safety and risk analysis for an imminent and serious threat:
• Individualized analysis can involve reviewing for:

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• Imminent and serious threat to health or safety of complainant or any students, employees, or other persons;
• Nature and Severity of the Alleged Conduct;
• Context and Circumstances;
• History of Behavior;

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• Impact on the Complainant;
• Impact on the Educational Environment;
• Interim Measures and Alternatives;
• Legal and Policy Considerations;
• Documentation and Communication; and
• Review and Reassessment.

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Implementing 2024 Regulations - “Reasonable Timeline”

• There is no set timeline for implementing Title IX regulations, but institutions are expected to act within a "reasonable" timeframe.
• This means starting the process promptly once the regulations are finalized and making significant progress, including policy updates and training, within a few months.
• The focus should be on balancing thoroughness with efficiency, demonstrating a good faith effort to comply quickly and effectively while addressing any challenges that arise.

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Responding to Sex Discrimination – Emergency Removal Procedures §106.44(h)�

• The focus should be on balancing thoroughness with efficiency, demonstrating a good faith effort to comply quickly and effectively while addressing any challenges that arise.

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Discrimination on the Basis of Sex in Employment in Education Programs or Activities

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Employment § 106.51

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• No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination in employment, or recruitment, consideration, or selection therefor, whether full-time or part-time, under any education program or activity operated by a school;

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Employment § 106.51 (cont.)

• Employment decisions cannot limit, segregate, or classify applicants or employees in any way that could adversely affect employment opportunities or status due to sex;
• School cannot enter into any contractual or other relationship that directly or indirectly effects employees or students to sex discrimination; and
• School cannot grant preference to applicants who have attended single-sex or predominantly single sex educational institutions if it has the effect of sex discrimination.

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Employment § 106.51 (cont.)

• Applies to:
• Recruitment, advertising, and applications for employment - § 106.53 and 106.59.
• Hiring, promotions, tenure, demotions, transfer, layoff, termination, rehiring, etc.
• Pay and any changes in compensation - § 106.54.
• Job assignments, classification, and structure - § 106.55.
• Collective bargaining agreements.
• Granting and return from leaves of absence, leave for pregnancy or related conditions, leave to care for children or dependents - § 106.57.
• Fringe benefits - § 106.56.
• Financial support.
• Employer-sponsored activities.
• Any other term, condition, or privilege of employment.

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Employment (cont.)

• No tests or other criterion on the basis of sex allowed that disproportionately affects people on the basis of sex unless the test predicts successful performance or there are no other tests available - § 106.52.
• Cannot ask marital status as part of pre-employment inquiries but can ask applicants to self-identify sex if it’s asked of all applicants and not used as a basis for discrimination.
• CAN consider sex if it is a bona-fide occupational qualification ( e.g. working in a locker room or toilet facility used only by members of one sex).

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Prohibition on Retaliation

• The New Title IX Regulations expanded protections against retaliation for individuals involved in a Title IX complaint include protections for complainants, respondents, and witnesses.

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Prohibition on Retaliation § 106.71

• School MUST prohibit retaliation, including peer retaliation.
• Specific actions prohibited include:
• Adverse academic or employment actions.
• Harassment or intimidation.
• Any other conduct that could deter individuals from participating in the Title IX process.

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Prohibition on Retaliation § 106.71

• Allegations of retaliation will go through the grievance procedures under § 106.45 or information resolution process § 106.44(k).
• Respondent can file a cross complaint without it being considered retaliatory!
• Need to be cautious about disciplining an involved party (apply code of conduct consistently) and in charging false statements (misperceptions and inconsistencies do not equal intentionally false statements).

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Inclusion of Authorized Legal Representatives

• Authorized legal representatives can act on behalf of complainants or respondents, enhancing legal support and representation during Title IX proceedings.

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Removal of Self-Evaluation Requirement

• Institutions are no longer required to conduct self-evaluations of their compliance with Title IX, shifting towards proactive compliance measures.

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Precedence Over State/Local Laws

• Title IX takes precedence over conflicting state or local laws, ensuring uniform application of federal standards.

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Best Practices for Providing Support

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34 CFR Sec. 106.44(g)

Best Practices (continued)

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34 CFR Sec. 106.44(g)

Summary

• Key Points:
1. Title IX is a federal civil rights law aimed at preventing sex-based discrimination in education.

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• It covers all aspects of education including admissions, athletics, and treatment of students and employees.

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• Title IX has significantly impacted education by promoting gender equality and increasing awareness of sexual harassment.

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• The 2024 changes focus on creating a more inclusive and supportive educational environment.

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Summary (cont.)

• Key Points:
5. Mandatory training for all Title IX staff and updated grievance procedures ensure fairness and due process.

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• Supportive measures and emergency removal policies are designed to protect all parties involved.

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• Expanded protections against retaliation help maintain a safe and supportive environment for all students.

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• All employees are mandatory reporters in addition to Title IX Requirement

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Summary (cont.)

• Key Points:

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• All employees must report incidents of sexual discrimination to Title IX Coordinator with the exception of confidential employees

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• All confidential employees must advise complaints of their rights

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• School can not implement discipline before the conclusion of a Title IX investigation, or before determining if an investigation will be initiated

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• If a student reports something, even if it occurred at home, report it to your administrator and one of the Title IX coordinators so that an appropriate determination can be made.

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Title IX Reminders�

• All employees are mandatory reporters in addition to Title IX Requirement

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• All employees must report incidents of sexual discrimination to Title IX Coordinator with the exception of confidential employees

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• All confidential employees must advise complaints of their rights

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• School cannot implement discipline before the conclusion of a Title IX investigation, or before determining if an investigation will be initiated

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• If a student or employer reports something, even if it occurred off campus (home, school trip, etc.), report it to your administrator and one of the Title IX coordinators so that an appropriate determination can be made.

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Questions?

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MARK MORFORD, ESQUIRE

MMORFORD@MCKENNALAWLLC.COM

610-524-8454 (O)

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