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LET'S SHINE A LIGHT ON

TITLE IX

General Training for All Staff of the <District Name>

6 August 2021

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Training Presentation Link: https://bit.ly/GenStaff-TitleIX

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Every Arkansan is equitably prepared, supported, and inspired to succeed in school, career, community, and life.

ADE Vision

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The Arkansas Department of Education provides leadership, support, and service to schools, districts, and communities so every student graduates prepared for college, career, and community engagement.

DESE Mission

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Provide Assistance to Districts

Equity Assistance Center

Established in 1985

Affirmative Action
Program Accessibility
Human Relations
Awareness
Desegregation

Including:

On Site Visits
Workshops
Program Reviews
Other Activities

A.C.A. § 6-10-111

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ACA § 6-10-111(a-b)

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EAC

Shall maintain

Setting Civil Rights Requirements
Describing Compliance

Manuals

Guidelines

Procedures

Other Information Materials

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ACA § 6-10-111(c)(1)

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Every Public School

ENVIRONMENT

SAFE

CONDUCIVE

FOR

LEARNING

FREE FROM

DISCRIMINATION

STUDENT

QUALITY

EDUCATION

EQUITABLE

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Assist in Compliance

Enforce Compliance

Letters of Guidance
Regulations of Compliance

Complaint Reviews
Compliance Investigations

USDOE – Office of Civil Rights

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Equity Assistance Center

A.C.A. § 6-10-111

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This training is technical assistance and guidance.

The EAC cannot give you legal advice.

Anything shared in this presentation should be reviewed with the recipient’s legal representatives before implementing.

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Some examples:

Failure to provide equal opportunity in athletics
Discrimination in STEM courses and programs
Discrimination based on pregnancy
Title IX Sexual Harassment

What is Title IX?

Prohibits discrimination on the basis of sex in education programs and activities that receive federal financial assistance.

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History of Title IX

Education Amendments of 1972

New Regulations are now law:

effective August 14, 2020

1975-US Dept. of Education published 34 CFR Part 106, which implements Title IX

1997-US Dept. of Education published Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties
2001-US Dept. of Education published Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties
2011 and 2016-Dear Colleague Letters

Guidance documents were used when law had not specifically addressed an issue

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Recommended

Training

Title IX definition of sexual harassment
Duty to report
How to report
Basic grievance process and timeline

Basic Sexual Harassment Training

ALL Employees

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Sex Discrimination

Big Picture Law

Title IX Sexual Harassment

Form of Sex Discrimination

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Generally speaking, Sex Discrimination involves treating someone differently or unfavorably because of their sex.

It’s a broad umbrella term, but in regards to Title IX – sex discrimination is the differential treatment of an individual because of their sex within an education setting. So, this could be excluding a person, separating them, or denying them benefits in the program.

Protections against Title IX Sex Discrimination applies to both students and employees

EMPLOYEE: Recruitment, Pay, Advertising, etc.

STUDENT: Admissions, Housing, Counseling, etc. &

Examples of student Title IX Sex Discrimination, we saw in a previous slide, are unequal athletic opportunities, sex-based discrimination in STEM courses, discrimination based on pregnancy, or sexual harassment.

So, as Title IX prohibits varying forms of Sex Discrimination, Title IX Sexual Harassment is one form of Title IX Sex Discrimination.

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Clarity

in

Terms & Requirements

TITLE IX OF THE EDUCATION AMENDMENTS OF 1972

Title IX Sexual Harassment Definition

TITLE

IX

ARKANSAS CIVIL RIGHTS ACT OF 1993

Court Sexual Harassment Interpretation

CODE

§ 16-123-101

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

Title VII Sexual Harassment Definition

TITLE

VII

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There are multiple definitions of sexual harassment, so the term “Title IX Sexual Harassment” acknowledges that there are other definitions of sexual harassment. Such as

Title VII [7] of the Civil Rights Act workplace definition of sexual harassment or

The court’s interpretation of AR’s Civil Rights Act concerning sexual harassment.

Institutions must comply with all other state/federal regulations -so, it is important to clearly articulate Title IX Sexual Harassment when engaging in this process – especially since this Title IX process applies to both students and employees.

Before we dive into the definition of Title IX Sexual harassment, let’s state what it is NOT.

The Title IX Sexual Harassment definition does not specifically mention discrimination on the basis of sexual orientation or gender identity. The Title IX Sexual Harassment definition focuses on prohibiting a specific conduct directed at any individual no matter their sexual orientation or gender identity.

Title VII [7] of the Civil Rights Act and the big picture law of Title IX Sex Discrimination protects against discrimination on the basis of sexual orientation and gender identity.

So let’s examine the Title IX definition of sexual harassment ….

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TITLE IX SEXUAL HARASSMENT MEANS

An employee of the recipient* conditioning the provision of an aid, benefit, or service of the recipient on an individual's participation in unwelcome sexual conduct;

Sexual Assault, Dating Violence, Domestic Violence, or Stalking

CONDUCT ON THE BASIS OF SEX THAT SATISFIES ONE OR MORE OF THE FOLLOWING:

* Recipient - institution that receives federal financial assistance

** OCR Q&A on Title IX Regulations on Sexual Harassment - https://www2.ed.gov/about/offices/list/ocr/docs/202107-qa-titleix.pdf#page=17

34 CFR § 106.30(A)(1-3)

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The new Title IX regulations defines sexual harassment broadly because those acts jeopardize a student’s equal access to education.

Title IX Sexual Harassment conduct must satisfy 1 or more of the following:

(1) The first - when an employee of the institution conditions the delivery of an aid, benefit, or service - on another individual’s participation in an unwelcome sexual conduct.

Often referred to as Quid pro quo harassment (So, “If this, Then that” scenarios)

So this could be a student’s participation in unwelcome sexual advances in order for them to participate in some aspect of the educational program or to have a particular educational decision be made.

(2) Title IX Sexual harassment based on sex also includes the offensives of Sexual assault, Dating violence, Domestic violence, or Stalking. The new Title IX Rule cemented these acts as forms of Title IX sexual harassment.

Let’s dive a little further into the definitions of Sexual Assault, Dating Violence, Domestic Violence and Stalking

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SEX OFFENSES AS FORMS OF SEXUAL HARRASSMENT:

DATING VIOLENCE

Violence committed by a person

who is or has been in a social relationship of a romantic or intimate nature with the victim; and
where the existence of such a relationship shall be determined based on a consideration of the following factors:

The length of the relationship.
The type of relationship.
The frequency of interaction between the persons involved in the relationship.

34 U.S.C. § 12291(A)(10)

SEXUAL ASSAULT

An offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation (FBI).

20 U.S.C. § 1092(F)(6)(A)(V)

DOMESTIC VIOLENCE

Includes felony or misdemeanor crimes of violence committed by

a current or former spouse or intimate partner of the victim,
a person with whom the victim shares a child in common,
a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner,
a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or
any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of the jurisdiction.

34 U.S.C. § 12291(A)(8)

STALKING

Engaging in a course of conduct directed at a specific person that would cause a reasonable person to-

fear for his or her safety or the safety of others; or
suffer substantial emotional distress.

34 U.S.C. § 12291(A)(30)

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SEXUAL ASSAULT OFFENSES:

INCEST

.

National Incident-Based Reporting System (NIBRS)

RAPE

The carnal knowledge of a person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.

SODOMY

Oral or anal sexual intercourse with another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.

SEXUAL ASSAULT WITH AN OBJECT

To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.

STATUTORY RAPE

Nonforcible sexual intercourse with a person who is under the statutory age of consent.

INCEST

Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

FONDLING

The touching of the private body parts of another person for the purpose of sexual gratification without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.

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INCEST

.

RAPE

The carnal knowledge of a person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.

SODOMY

Oral or anal sexual intercourse with another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.

SEXUAL ASSAULT WITH AN OBJECT

To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.

STATUTORY RAPE

Nonforcible sexual intercourse with a person who is under the statutory age of consent.

INCEST

Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

FONDLING

The touching of the private body parts of another person for the purpose of sexual gratification without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.

CONSENT:

THE ASSISTANT SECRETARY WILL NOT REQUIRE RECIPIENTS TO ADOPT A PARTICULAR DEFINITION OF CONSENT WITH RESPECT TO SEXUAL ASSAULT

34 CFR 106.30(a)(103)

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National Incident-Based Reporting System (NIBRS)

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Consent

Title IX states the following in relation to consent

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These are individuals who cannot give consent

Students when the Respondent is an employee of the recipient.
Severely cognitively disabled persons
Incapacitated persons
Anyone unable to give consent by law

The recipient must specify the definition of consent it will apply.
The recipient must consistently apply that definition

To both the complainant and the respondent
From one grievance process to another

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Consent

<District Name> defines consent as:

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-- Definition --

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TITLE IX SEXUAL HARASSMENT MEANS

An employee of the recipient* conditioning the provision of an aid, benefit, or service of the recipient on an individual's participation in unwelcome sexual conduct;

Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive** that it effectively denies a person equal access to the recipient's education program or activity; or

Sexual Assault, Dating Violence, Domestic Violence, or Stalking

CONDUCT ON THE BASIS OF SEX THAT SATISFIES ONE OR MORE OF THE FOLLOWING:

* Recipient - institution that receives federal financial assistance

** OCR Q&A on Title IX Regulations on Sexual Harassment - https://www2.ed.gov/about/offices/list/ocr/docs/202107-qa-titleix.pdf#page=17

34 CFR § 106.30(A)(1-3)

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(3) Title IX sexual harassment could also be Unwelcome conduct that a reasonable person would find severe, pervasive, AND objectively offensive – so much that it denies access to education. So here the conduct must

Again, be unwelcome to the individual. This could be unwelcome verbal or nonverbal gestures - or unwelcome physical sexual advances.

This prong would not include ALL offensive remarks because the conduct must include all 3 elements (severe, pervasive, & objectively offensive).

hence the use of the word And and not Or. Other offensive remarks may be addressed by the school in other ways outside of their Title IX process.

The statute requires that a reasonable person must determine the presence of those 3 elements and denial of equal access

When conduct on the basis of sex meets 1 or more of these categories, the conduct is “sexual harassment” under the new Title IX Rule.

It’s essential for everyone – particular Title IX Investigators and Decision-Makers to understand this definition because the definition plays a part in the gathering of evidence & making determinations of responsibility.

The terms within the definition need to be understood in a very real way. Meaning –

What is considered severe by a reasonable person, what is pervasive or objectively offensive?

How are we understanding the term “unwelcome”? Does not complaining still mean the conduct was unwelcome?

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Severe, Pervasive and Objectively Offensive?

“Signs of enduring unequal educational access due to severe, pervasive, and objectively offensive sexual harassment may include:

skipping class to avoid a harasser
a decline in a student’s grade point average, or
having difficulty concentrating in class

however, no concrete injury is required to conclude that serious harassment would deprive a reasonable person in the complainant’s position of the ability to access the recipient’s education program or activity on an equal basis with persons who are not suffering such harassment.”

- Title IX Preamble

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Severe, Pervasive and Objectively Offensive?

Courts must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults.
Whether gender-oriented conduct rises to the level of actionable “harassment” thus depends on a constellation of surrounding circumstances, expectations, and relationships, …including, but not limited to, the ages of the harasser and the victim and the number of individuals involved.
Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender.

– Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999)

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Is it Title IX Sexual Harassment?

A young man repeatedly grabs and rubs his crotch whenever a young woman enters into their English class.

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Is it Title IX Sexual Harassment?

A student yells across the cafeteria calling another student a "THOT."

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Complainant

Individual who is alleged to be the victim of conduct that could constitute Title IX sexual harassment.

Respondent

Individual who has been reported to be the perpetrator of conduct that could constitute Title IX sexual harassment.

Recipient

Institution that receives Federal financial assistance.

34 CFR § 106.2(i)

34 CFR § 106.3(a)

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The complainant is the student or employee who is listed as the alleged victim of conduct that could constitute Title IX sexual harassment.

Regardless of whether the person themselves reported the possible Title IX Sexual Harassment or a third party the school must treat a person as a complainant any time the school becomes aware that they are an alleged victim of conduct that could constitute Title IX Sexual Harassment - even if a formal complaint is never filed.

The respondent is the individual that has been alleged to be the perpetrator of conduct that could constitute Title IX sexual harassment.

Also, the term recipient is used throughout the federal regulations and will be used throughout this presentation. Recipient refers to any institution, school, place of employment that receives Federal financial assistance.

Now let’s discuss the varying Title IX roles…

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Title IX Personnel Team

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Title IX Coordinator

COORDINATE

recipient's efforts to comply with Title IX responsibilities

1

"AUTHORIZED"

to do their job

2

MUST BE READILY AVAILABLE AND ACCESSIBLE

4

RESPONSIBLE

for effective implementation of supportive measures and remedies

3

What is their role?

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34 CFR § 106.44(a) and § 106.8(a)

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Investigators

What is their role?

CONDUCT INVESTIGATIONS

1

CREATE INVESTIGATIVE REPORT

2

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34 CFR § 106.45(b)(5)

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Decision-Makers

What is their role?

EVIDENCE

Evaluate evidence and apply the standard of evidence chosen by the recipient

1

DECISIONS

Reach conclusions whether respondent is responsible for alleged Title IX sexual harassment
Whether remedies will be provided to complainants
Appropriate disciplinary consequences for respondents

WRITTEN DETERMINATION WRITTEN DECISION

regarding responsibility in an appeal

3

DETERMINATION APPEALS

2

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34 CFR § 106.45(b)(6-8)

The Decision Makers reviews the investigative report and applies the standard of evidence chosen by the district to determine responsibility for the alleged Title IX sexual harassment. As stated earlier, <District Name> uses the Preponderance of Evidence standard.

If the respondent is found responsible for the allegations, the decision maker will then

Determine what disciplinary sanctions are to be imposed on the respondent, according to their district polices
Determine what remedies will be offered the complainant. Remember, remedies are actions which are designed to restore or preserve equal access to program or activity
Determine if there are any further actions the recipient needs to take to ensure non-discrimination on the basis of sex

The decision maker will then create the written determination, which the Title IX coordinator ensures is delivered simultaneously to both parties and their advisors.

The Title IX coordinator may assign more than one decision maker to an investigation. For instance, one decision maker may determine responsibility while another decision maker determines sanctions, remedies or other actions.

Ultimately, all the determinations must be included in one written decision which both parties receive.

If an appeal is filed, the decision maker for appeals reviews the appeal and relevant section of the investigation to determine if there was

Procedural irregularity that affected the outcome of the matter
New evidence that was not reasonably available that could affect the outcome of the matter
Title IX Personnel Team had a conflict of interest or bias towards complainant or respondent that affected the outcome of the matter
Any other reasons the district decides to offer appeals.

The recipient is only required to offer appeals on the three reasons stated above. It may offer additional reasons, but it must provide those reasons equally to both parties.

The appeal decision maker will then create a written decision on the appeal.

Neither the Title IX coordinator nor the investigator, or investigators, can serve as the decision maker. The decision maker for the appeals cannot be the same person(s), who served as the decision maker(s) for the written determination.

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FACILITATE INFORMAL RESOLUTIONS

1

34 CFR § 106.45(b)(8); Final Rule Preamble pg. 30399 - 30401, 30404

Informal Resolution Facilitators

What is their role?

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Title IX Personnel Team

Title IX Coordinator

Investigators

Decision-Makers

WRITTEN DETERMINATION APPEALS

Informal Resolution Facilitators

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Training

34 CFR § 106.45(b)(1)(iii)

Required

Personnel Team - In-Depth Training

ALL Team Members

Title IX definition of sexual harassment
Scope of the education program/activity
Conducting an investigation
Grievance process
Hearings (If conducting hearings)
Appeals
Impartiality

Prejudging facts
Conflicts of interest
Bias

Informal resolution (If offering informal resolution)

Investigators

Issues of relevance

Evidence

Decision Makers

Issues of relevance

Evidence
Questions

Technology used in hearings (if conducting hearings)

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SEX DISCRIMINATION

GRIEVANCE PROCEDURE

vs.

TITLE IX SEXUAL HARASSMENT

GRIEVANCE PROCESS

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ANY PERSON

(whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or Title IX sexual harassment).

may report to the Title IX Coordinator

The recipient must notify applicants for admission and employment, students, parents or legal guardians of elementary and secondary students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the recipient.

(during business and non-business hours).

ANY TIME

the report may be made

(contact information needs to be on website and in each handbook or catalog made available to required parties).

VERBAL OR WRITTEN

may be made in person, by mail, by telephone, or by email

REPORTING SEX DISCRIMINATION

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34 CFR § 106.8(a-b)

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Contact your Title IX Coordinator

Difference between Sex Discrimination and Sexual Harassment

Report Sex Discrimination

<District Name> Title IX Coordinator:

<Name>

<Title>

<City, State Zip

<Email>

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SEX DISCRIMINATION

GRIEVANCE PROCEDURE

vs.

TITLE IX SEXUAL HARASSMENT

GRIEVANCE PROCESS

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Grievance Process for Title IX Sexual Harassment

34 CFR § 106.45

Formal Complaint

General Response to Title IX Sexual Harassment

34 CFR § 106.44(a)

Actual Knowledge*

Actual knowledge means notice (report) of Title IX sexual harassment or allegations of Title IX sexual harassment to a recipient's Title IX Coordinator or to any employee of an elementary and secondary school.

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RESPOND PROMPTLY

RESPOND EQUITABLY

DISCUSS SUPPORTIVE MEASURES

EXPLAIN FORMAL COMPLAINT

EMERGENCY REMOVAL OR ADMINISTRATIVE LEAVE

General Response to Title IX Sexual Harassment

34 CFR § 106.44(a)

Actual Knowledge*

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Actual knowledge means notice (report) of Title IX sexual harassment or allegations of Title IX sexual harassment to a recipient's Title IX Coordinator or to any employee of an elementary and secondary school.

RESPOND PROMPTLY

in a manner that is not deliberately indifferent

RESPOND EQUITABLY

by offering supportive measures to complainant
by following a grievance process before imposing any disciplinary sanctions against a respondent

DISCUSS SUPPORTIVE MEASURES

discuss the availability with the complainant
consider the complainant's wishes with respect to supportive measures
availability with or without a formal complaint

EXPLAIN FORMAL COMPLAINT

document filed by a complainant or signed by the Title IX Coordinator alleging Title IX sexual harassment against a respondent and requesting that the recipient investigate the allegation of Title IX sexual harassment

EMERGENCY REMOVAL OR ADMINISTRATIVE LEAVE

respondent may be removed on an emergency basis under certain conditions
employees may be placed on administrative leave during pending grievance process
emergency removal or administrative leave cannot conflict with Disability Laws

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Grievance Process for Title IX Sexual Harassment

34 CFR § 106.45

Formal Complaint

Guidelines

COMPLAINANT MUST BE PARTICIPATING IN OR ATTEMPTING TO PARTICIPATE

in the education program or activity of the recipient with which the formal complaint is filed

PARENT OR GUARDIAN MAY FILE A FORMAL COMPLAINT

on behalf of complainant

"DOCUMENT FILED BY A COMPLAINANT" MEANS

a document or electronic submission that contains the complainant's physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint

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34 CFR § 106.30(a); 106.6(g)

The file a formal complaint, the complainant must be participating in or attempting to participate in the recipient’s program. If the complainant was employed or enrolled in the recipient’s program or activity at the time of the incident and left the recipient’s program they still may be attempting to participate. To determine this, the recipient would need to determine if the alleged Title IX sexual harassment was part or all of the reason the complainant left the program or activity.

Note that a parent or guardian of a complainant may file the formal complaint on behalf of the complainant, pursuant to FERPA rules and regulations and state laws regarding guardianship.

Only the complainant or the Title IX coordinator may sign and file a formal complaint. It must be in written form, physical or digital, and it must contain the physical or digital signature of either the complainant or the Title IX Coordinator.

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"Such measures are designed to

RESTORE OR PRESERVE EQUAL ACCESS TO THE RECIPIENT'S EDUCATION PROGRAM OR ACTIVITY WITHOUT UNREASONABLY BURDENING THE OTHER

PARTY,

including measures designed to protect the safety of all parties or the recipient's educational environment, or deter sexual harassment."

Supportive Measures

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34 CFR § 106.30(a)

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An investigation of sexual harassment does not occur until a formal complaint is filed.

Report puts recipient on notice

Formal Complaint initiates an investigation

The recipient must investigate the allegations in a formal complaint.

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Dismissing a Formal Complaint

Must Dismiss

If conduct alleged in a formal complaint would not constitute sexual harassment even if proven true
If conduct did not occur in the recipient's education program or activity.
If conduct did not occur against a person in the United States.

"Such dismissal does not preclude action under another provision of the recipient's code of conduct."

May Dismiss

If complainant notifies the Title IX Coordinator in writing that they want to withdraw the formal complaint or any allegations therein.
If respondent is no longer enrolled or employed by the recipient.
If specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.

Upon dismissal for any reason above, the recipient must promptly send written notice of the dismissal and reason(s) simultaneously to the parties.

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34 CFR § 106.45(b)(3)

There are three situations where the recipient MUST dismiss a formal complaint.

Note that in the first it states “even if proven true.” No decision should be made about the truth of the allegation prior to the grievance process being completed. To check this prong, the recipient should determine if a true allegation of this type would fit the definition of Title Ix Sexual Harassment.
The recipient is not responsible to investigate actions taken outside of its program or activity.
The OCR does not have jurisdiction on foreign soil.
Just because it is not Title IX does not mean it is not a breach of another of the recipient’s rules. If it does not fall under Title IX, then the recipient is free to apply any of it’s other policies as appropriate.

There are three situations where the recipient MAY dismiss, but does not have to.

The new regulations provide the complainant with the right to request an investigation or not. Except in extreme and rare circumstances, recipients should honor the requests of the complainants in this regard.
If the respondent is not longer connected to the recipient, then there is likely nothing the recipient can do to implement disciplinary sanctions. However, the recipient may want to continue with the investigation and have a determination in case the respondent tries to participate in its program or activity in the future.
If you cannot gather enough evidence to make a determination, then the recipient will probably not be able to make a determination. Be careful that you do not use this prong simply because all the evidence you find supports only the side you may disagree with. This should be an unbiased decision regarding the ability to collect all the necessary evidence.

Any party can appeal a dismissal.

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Is it Title IX Sexual Harassment?

A student from another school in the district is at a evening extracurricular activity at your school. The student meets a student from your school and repeatedly sends text messages and calls asking for sexual favors.

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Is it Title IX Sexual Harassment?

You receive a call from the parent of a student in a neighboring school district. The parent states that one of your students is constantly texting their child inappropriate pictures during the school day.

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Serving Impartially

DESIGNATED INDIVIDUALS MUST

“not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.”

✔ NEUTRAL

✔ FAIR IN ACTIONS

✔ OBJECTIVE CRITERIA

PREJUDGEMENT OF THE FACTS AT ISSUE 🗶

CONFLICTS OF INTEREST 🗶

BIAS 🗶

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34 CFR § 106.45(b)(1)(iii)

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Serving Impartially

DESIGNATED INDIVIDUALS MUST

be trained "how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias"

DESIGNATED INDIVIDUALS MUST

Be self-aware

State when they cannot be impartial

Objectively gather and evaluate evidence

- including inculpatory and exculpatory evidence

✔

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34 CFR § 106.45(b)(1)(iii)

As such, the individuals must be trained on how to serve impartially.

This requires individuals to be aware of their own biases and conflicts of interest. It is not a weakness to be partial or have a conflict of interest. It is a weakness to refuse to acknowledge we have one or to allow our pride to keep us from informing our team or leaders that there is a potential problem.

When we recognize a real or perceived bias or conflict of interest, we should be comfortable enough to clearly state that we have one and, when necessary, recuse ourselves as a result of it. In Title IX, it is always necessary if we have a bias or conflict of interest that would interfere with our ability to serve impartially.

Inculpatory evidence is evidence that proves the respondent was responsible. Exculpatory evidence is evidence that proves the respondent was NOT responsible. An unbiased investigator is searching for both evidence and not swayed one way or the other in which evidence to pursue.

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WHAT ABOUT FERPA?

34 CFR § 106.6(d)(3)(e); 106.45(b)(2)(i)(B); 106.45(b)(7)(ii)(E); 106.45(b)(7)(iii); 106.30(a)

The obligation to comply with Title IX is not obviated or alleviated by the FERPA statute or FERPA regulations.

Notice of Allegations

IDENTITIES of the parties involved in the incident.

Determination

Given to both parties.
Declaration of responsibility.
What sanctions are imposed on respondent.
If remedies are offered complainant.

Supportive Measures

Kept confidential so long as the confidentiality does not deter the ability to provide the supports.

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Retaliation

NO RECIPIENT OR OTHER PERSON MAY INTIMIDATE, THREATEN, COERCE, OR DISCRIMINATE AGAINST ANY INDIVIDUAL FOR THE PURPOSE OF INTERFERING WITH ANY RIGHT OR PRIVILEGE SECURED BY TITLE IX

34 CFR § 106.71 (a)

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Standard of Evidence

34 CFR § 106.45(b)(1)(vii)

CONSISTENTLY APPLIED

It cannot be harder to prove an allegation against a teacher than it is to prove an allegation against a student.

SELECT ONE STANDARD

The standard must be listed in the grievance process.

The evidence shows that the allegation is more likely to have occurred than to have not occurred. (>50% chance that the allegations are correct.)

PREPONDERANCE OF THE EVIDENCE

The evidence shows that the allegation is substantially more likely to be true than untrue. (High probability, but still less than “beyond a reasonable doubt”)

CLEAR AND CONVINCING EVIDENCE

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Recipients must determine with standard of evidence they are going to use and then apply that evidence to all Title IX Sexual Harassment formal complaints regardless of whether the allegation is against a student or a staff member. If there is a negotiated contract the requires a specific standard of evidence when determining employment disciplinary decisions then either the contract needs to be renegotiated or the Title IX standard selected needs to be the same as the contract.

Preponderance of Evidence simply means the evidence shows that it is more likely the respondent was responsible for the allegations than the respondent was not responsible for the allegations. 51% or greater change.

Clear and Convincing means that there is a significant chance that the respondent is responsible for the allegations. There is no specific percentage of chance defined for this, but it is well below the “beyond a reasonable doubt” standard of evidence for a legal trial.

<District Name> has chosen to use the “Preponderance of Evidence Standard”

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INVESTIGATION TIMELINE

34 CFR § 106.45(b)(5); 106.45(b)(6)(ii)

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Implement the decision

Nothing is finalized until the appeal is completed or the time to file an appeal has expired
Remedies for Complainant
Sanctions for Respondent

Gather Evidence

Interview Witnesses
Review Physical Evidence

Create investigative report

Music consider the written responses before completing the report
Include only relevant evidence

Present evidence to parties

10 days prior to completing the Investigative Report
All evidence collected that is related to the allegations
Parties may submit written responses

Send investigative report

To parties and decision-maker(s)
Electronic or hard copy
Parties review and provide written response

Decision maker considers written responses

Submit relevant questions from either party to the other party
Allow time for the parties to answer

Make decision regarding responsibility

At least 10 days after the investigative report is received

Include any additional time needed to respond to relevant questions

Allow time for an appeal from either party

District determines time allowed.

These are the steps the investigators and decision makers must take in order to complete a Title IX investigation.

It is the job of the investigators to collect evidence and interview witnesses. This should not be done by the building administrator or school resource officer.
Once the evidence is collected, the investigators must make all evidence related to the investigation available for inspection by both parties and their advisors. This must be at least 10 days prior to the completion of the investigative report.
The parties can submit written responses where they may argue about relevance of any of the evidence or discuss any missing evidence they feel should have been consider and included.
The investigator is to consider those written responses and then complete investigative report in which they will summarize all relevant evidence. There are specific rules regarding what is relevant as opposed to what is related.
That report is then sent simultaneously to both parties and their advisors along with the decision makers.
The parties then have at least 10 days to submit to the decision maker a written response that may include any additional questions they feel should be asked of the other party.
The decision maker will determine if those questions are relevant and send the relevant questions to the parties and give them appropriate additional time to respond to the questions before making the written determination.
Once the decision maker has reviewed the investigative report, the written responses from the parties and any additional answers to relevant questions, they should issue a determination regarding responsibility. This should be written and submitted to both parties simultaneously. This cannot be done until the ten days have elapsed.
The parties then have the opportunity to appeal the decision based on specific criteria. The district is to grant the parties an appropriate time to appeal. It is not specified in the regulations. Once the time to appeal has ended (if there are not appeals) or the appeals have been heard and responded to, the determination or decision becomes binding.
The Title IX coordinators job is to implement the written determination/decision by enacting sanctions on the respondent, implementing the agreed upon remedies for the complainant and taking any other actions necessary to discourage sexual harassment in the recipient’s program or activity.

�We have also provided a Flowchart for a Title IX Sexual Harassment Investigation, whether that is initiated by a Formal Complaint or because of Actual Knowledge.

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Is it Title IX Sexual Harassment?

A student grabs another student’s rear end in the hallway between classes.

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Is it Title IX Sexual Harassment?

A substitute teacher, hired through a temp agency, is accused of only helping the young women who have low cut shirts and lean forward when working with them.

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Read the situation and allow for some discussion. (There is a NearPod Poll Activity available with these questions. You can make a copy for your NearPod account: https://share.nearpod.com/e/IFZoDN5nvib)

This is quid pro quo. “conditioning the provision of an aid, benefit, or service of the recipient”
If a recipient contracts out its services, it is still held accountable to federal law in relation to providing those services.

“A recipient shall not enter into any contractual or other relationship which directly or indirectly has the effect of subjecting employees or students to discrimination prohibited by this subpart, including relationships with employment and referral agencies, with labor unions, and with organizations providing or administering fringe benefits to employees of the recipient.”
34 CFR 106.51(a)(3)

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Is it Title IX Sexual Harassment?

A teacher who worked at your school last year, but is now employed by another school district is accused of sending text messages this year to many of the students at your school requesting “nudes.”

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Is it Title IX Sexual Harassment?

A virtual student sends sexually explicit messages and images to another virtual student using the school provided device.

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Is it Title IX Sexual Harassment?

A virtual student sends sexually explicit messages and images to another virtual student on their cell phones during school time.

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EQUITY ASSISTANCE CENTER TEAM

Arkansas Department of Education

Division of Elementary and Secondary Education

Four Capitol Mall, Mail Slot 25

Little Rock, AR 72201

501-682-4213

ADE.EquityAssistance@Arkansas.gov

OLIVER DILLINGHAM

Program Manager

LASONIA JOHNSON

Program Advisor

LANCE LEVAR

Program Advisor

DAISY REYES

Program Advisor

Feedback Link: https://bit.ly/DESE-EAC-Feedback

Training Presentation Link: https://bit.ly/EAC-GenStaff-TitleIX