Decision-Making Training

Christina Gallagher, Esq.

Wisler Pearlstine, LLP

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Cheltenham School District

February 13, 2024

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©2024 Wisler Pearlstine, LLP

Title IX’s Training Requirements

• Decision-Maker Training
• Training on any technology to be used at a live hearing
• Logistically – to be done by school, IT department, etc.
• Training on issues of relevance of questions and evidence, including when questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, as set forth in paragraph (b)(6) of this section.
• Appears geared towards hearings and on the spot determinations at hearing (but see allowance of questions requirement)
• Investigator – required to include relevant evidence

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Witnesses

• Must provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence
• Geared toward hearing?
• If no hearing – should be covered by investigator

After Receiving the Report

• Decision-maker / entity must provide parties an opportunity to:
• Provide a Written Response to the investigative report at least 10 days prior to a hearing or other time of determination
• Submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party

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Logistics for Questions

• Opportunity must be provided with or without a hearing
• Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant
• Unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or
• If the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.
• The decision-maker(s) must explain to the party proposing the questions any decision to exclude a question as not relevant
• Tip – set deadline and related procedure

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Is a question relevant? Should it be excluded?

• No definition of relevance provided, but consider the following:
• Commentary says an investigation and adjudication should focus on “evidence pertinent to proving whether facts material to the allegations under investigation are more or less likely to be true (i.e., on what is relevant).” 30,294
• Consult with your Title IX attorney if you are unsure

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Writing the Written Determination

• Before you start writing, ensure:
• You have all documents you need and nothing more
• Evidence provided to parties
• Investigative Report
• Procedural Notifications that went out
• *Remember – you are limited to what the investigator collected and must serve impartially. Do not bring in outside knowledge or outside information.
• i.e., other unrelated disciplinary incidents, conversations you may have had with a party in the past
• May still consider and apply school code of conduct or policy, as required

Written Determination Requirements

• Written Determination must include:
• 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 notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
• Findings of fact supporting the determination;
• Conclusions regarding the application of the educational entity’s code of conduct to the facts;
• A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the educational entity imposes on the respondent, and whether remedies designed to restore or preserve equal access to the educational entity’s education program or activity will be provided by the educational entity to the complainant; and
• The educational entity’s procedures and permissible bases for the complainant and respondent to appeal.

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Determination Regarding Responsibility

• To reach this determination, the educational entity must apply whichever standard of evidence it chooses:
• Preponderance of evidence
• whether alleged facts are more likely than not to be true
• Clear and convincing evidence
• whether it is “highly probable” that the alleged facts are true
• Be sure to note and apply the standard!

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Identification of the allegations potentially constituting sexual harassment�

• Should be easy to find!
• Should be included in the Title IX written notifications.
• Should be included in the report.

Procedural Steps

• A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held.
• *Review notifications, emails with parties.
• If you think something is missing – ask the Title IX Coordinator.
• Want to ensure record is complete – you are documenting compliance!

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Findings of fact supporting the determination�

• This assumes you are (1) making a determination and (2) findings of fact, which you are.
• You are determining:
• Whether the conduct occurred
• Whether it was a violation of Title IX
• To determine this, review the report and use your judgment.
• Explain why you are determining something
• “because” is your friend

Guidance from Dept. of Ed FAQ

Guidance (Cont’d)

Conclusions regarding the application of the educational entity’s code of conduct to the facts

• Review and be familiar with the entity’s policy and code of conduct
• Potential questions that may arise
• If you are imposing discipline – your code of conduct may require you to look at other disciplinary incidents that may not be in your packet of information.
• Options?
• Refer to a building admin to administer?
• Continue to make a recommendation?
• Consider outside discipline records?
• Could pose a risk because you are looking elsewhere
• Call your Title IX Attorney!

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If you find that Title IX was not violated, what can you do?

• There is support to apply another code of conduct violation, even if you find Title IX was not violated. But, the Title IX guidance isn’t entirely clear.
• § 106.45(b)(3)(ii) provides that if a complaint is dismissed, “dismissal does not preclude action under another provision of the recipient’s code of conduct.”
• § 106.71 considers retaliation (which is prohibited)
• “including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination”
• i.e., charging with a non-sexual harassment offense to elude the Title IX process

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Remaining Requirements

• A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility
• *Be sure to determine each allegation
• Any disciplinary sanctions the educational entity imposes on the respondent
• Explain why they are appropriate
• And whether remedies designed to restore or preserve equal access to the educational entity’s education program or activity will be provided by the educational entity to the complainant
• Explain why

Providing Notice of Appeal

• Entity is required to provide procedures and permissible bases for the complainant and respondent to appeal.
• Procedural irregularity that affected the outcome of the matter;
• New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made that could affect the outcome of the matter; and
• The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter.

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Providing Appeal Procedures

• What is an appeal procedure?
• No Title IX guidance on this, but procedures must be applied equally to both parties.
• Discretion to create procedures, like:
• When should a party file notice of appeal
• Deadline
• Who should be informed?
• Title IX Coordinator, appeals officer?
• When should the non-appealing party respond?
• Should the decision-maker create them?
• Up to discretion of the educational entity, but should be done at least in consultation with Title IX Coordinator.
• May also be included in policy or grievance procedure.

Written Determination

• The educational entity must provide the written determination to the parties simultaneously.
• The determination regarding responsibility becomes final either on the date that the educational entity provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.

QUESTIONS?�