Title IX - Updated Regulations

August 14, 2020

From the Office of Human Capital Development

Agenda

• Title IX
• Overview of Changes
• New Title IX Grievance Process

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Title IX

• Prohibits discrimination “on the basis of sex” in education programs or activities that receive federal financial assistance.
• 20 U.S.C. § 1681 (2).

****Discrimination on the basis of sex can include rape, sexual assault, or other types of sexual harassment.

• Protects both male and female students
• Prohibits sexually harassing conduct towards members of the opposite sex as well a members of the same sex;

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Title IX

• Applies to sexual harassment directed toward students by school employees (Teachers, coaches, 3rd parties);
• Applies to sexual harassment between students (peer sexual harassment)
• Title IX applies to the entire school district
• Does not apply if the conduct occurred against a person outside to of the U.S.

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Title IX Over the Years (History Lesson)

• Enacted in 1972
• Franklin v. Gwinnett County Pub. Schs. (US 1992)
• An implied private right of action for money damages could be sustained where a teacher allegedly sexually abused a student.
• Gebser v. Lago Vista Indep. Sch. Dist. (U.S. 1998)
• Damages for sexual harassment of a student by a teacher can only be recovered where:
• An official who has authority to institute corrective measures on the district’s behalf
• Has actual notice of the teacher’s misconduct, and
• Acts deliberately indifferent to such misconduct

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Title IX Over the Years

• Davis v. Monroe County Bd. of Educ. (US 1999)
• Private damages actions may be sustained against a school board in the case of student-on-student harassment, BUT only where:
• The District acts with deliberate indifference to known acts of harassment in its programs or activities; AND
• The harassment is so severe, pervasive, AND objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit
• Administrative Guidance
• 2001: Clinton Administration OCR Regulations
• 2001-02: Bush Administration
• 2011: Obama Administration on-campus sex assault DCLs and OCR enforcement
• 2016: Obama Administration DCL on transgender student rights

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Sexual Harassment

• “Quid Pro Quo” - school employee conditioning the provision of a school aid, benefit, or service 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 school’s education program or activity (Gebser/Davis)

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Updates on the Regulations

The New Regulations

• Effective August 14, 2020
• No sign of a stay or delayed implementation
• Focus on schools’ response to allegations of sexual harassment
• Provide specific procedures and require specific personnel
• BUT Not all alleged Title IX violations are subject to new procedures

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When Can a District Be Liable?

• A district with actual knowledge of sexual harassment must take steps to address it.
• As written, this covers all employees including custodians, secretaries, Paras, food service workers, etc.
• Once the district has knowledge, it must act in a way that is not deliberately indifferent to the alleged harassment.

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The Players

• Complainant
• An individual who is alleged to be the victim of conduct that could constitute sexual harassment
• Respondent
• An individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment

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The Players

• Title IX Coordinator
• Employee who will coordinate with the district’s efforts to comply with its responsibilities under Title IX.
• Investigator
• If possible, should not be the Title IX Coordinator
• Decision-Maker
• Must not be the Title IX Coordinator or the Investigator
• Appellate Decision-Maker
• Must not be the Title IX Coordinator, Investigator or Decision-Maker
• Informal Mediator

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The Process

Response Under the New Regulations

• Three Categories of Complaints/Allegations
• Sex discrimination NOT involving sexual harassment
• Sex harassment WITHOUT formal complaint
• Sex harassment WITH formal complaint

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General Response to ALL Allegations of Sexual Harassment (with or without a formal complaint)

• If the school has:
• Actual knowledge
• Of sexual harassment
• In an education program or activity
• Against a person in the U.S.
• The school must respond
• Promptly
• In a manner that is not deliberately indifferent

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General Response to ALL Allegations of Sexual Harassment (with or without a formal complaint)

• School is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of known circumstances
• Rejects the “known or reasonably should have known” standard imposed by rescinded guidance

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General Response to ALL Allegations of Sexual Harassment (with or without a formal complaint)

• Includes locations, events or circumstances over which the school exercised
• Substantial control over both the respondent, AND
• The context in which the sexual harassment occurs
• Electronic or in person
• Does not say “on campus” or “off campus”

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General Response to ALL Allegations of Sexual Harassment (with or without a formal complaint)

• Equitable Treatment
• Supportive Measures
• Follow Grievance Process that complies with procedural requirements BEFORE imposition of ANY disciplinary sanction
• Title IX Coordinator communication

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General Response to ALL Allegations of Sexual Harassment (with or without a formal complaint)

• Emergency Removal
• Individualized safety and risk analysis
• An immediate threat to the physical health or safety of anyone
• Notice and an opportunity to challenge the decision immediately following the removal
• Administrative Leave

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Response to Formal Complaint of Sexual Harassment: The Grievance Process (Formal Complaint)

• Formal Complaint
• Signed by complainant or Title IX Coordinator
• Alleges sexual harassment
• Requests investigation

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Response to Formal Complaint of Sexual Harassment

• First Steps once a formal complaint is filed
• Provide the parties with notice of the allegations, including:
• Identity of parties
• Conduct alleged to be sexual harassment
• Date and location of incident
• Provide notice of:
• Notice of the grievance process including any informal resolution processes available
• Statement that the respondent is presumed not responsible and that the determination of responsibility will not be made until the end of the process,
• Ability to have advisor (including an attorney) at all stages, and
• The section of the code of conduct that prohibits providing false statements and information during the grievance process
• Determine if the conduct, as alleged, would violate Title IX

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Response to Formal Complaint of Sexual Harassment

• School must dismiss the complaint if the allegations:
• Would not constitute sexual harassment even if proved;
• Did not occur in the school’s education program or activity;
• Did not occur against a person in the United States
• School may dismiss if
• Complainant requests (in writing to the TixC) to withdraw the formal complaint;
• Respondent is no longer enrolled or employed by the district;
• Specific circumstances prevent school from gathering evidence sufficient to reach a determination

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Response to Formal Complaint of Sexual Harassment: The Grievance Process - Investigation

• Some underlying principles for sexual harassment investigations:
• Equitable, Impartial, Thorough, Prompt
• Not the complainant’s job to “prosecute” the case or respondent’s job to “defend” the case
• Burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the school and not on the parties.
• District must gather “sufficient” evidence to reach a determination

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Response to Formal Complaint of Sexual Harassment

• Focus on due process - overview of major investigation steps
• Each party must have equal opportunity to present witnesses, including fact and expert witnesses, and other evidence;
• Cannot restrict the ability of either party to discuss the allegation or gather/present relevant evidence;
• Allow each party to have an advisor of their choosing at each step
• The district may establish consistent restrictions on the extent to which the advisor may participate in the proceedings
• Provide each party the opportunity to inspect and review all evidence; and
• Prior to the completion of the formal investigation report, send to each party and his/her advisor, the evidence subject to inspection and review.
• Each party must be given 10 days to provide written responses

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Response to Formal Complaint of Sexual Harassment

• The Investigation Report
• This is a formal written report that must fairly summarize relevant evidence;
• The investigator must provide both parties and their advisors a copy of the investigation report at least 10 days prior to the determination regarding responsibility so the parties may review and provide a written response

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Response to Formal Complaint of Sexual Harassment

• The Decision-Making Process
• After the investigation Hearing
• Live hearings are OPTIONAL for K-12 schools (Don’t do them)
• The decision-maker still must:
• Give each party the opportunity to submit relevant questions that the party wants asked for any party or witness;
• Provide each party with the answers to those questions; and
• Allow for follow up questions

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Remember that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rests on the district, not the parties

Response to Formal Complaint of Sexual Harassment

• The Decision-Making Process
• Written Determination
• Identify the allegations
• Describes the Procedures / Summary of Investigation
• Make findings of fact
• Make conclusions regarding the application of Code of Conduct to facts
• Contain a statement of rationale for result as to each allegations (including determination of responsibility or not)
• Process for Appeal
• Provided simultaneously to both parties

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Response to Formal Complaint of Sexual Harassment

• Appeals
• Must be offered for
• Procedural irregularity that affected the outcome of 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
• 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
• Equal opportunity for parties to submit a statement in support of or challenging outcome

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Response to Formal Complaint of Sexual Harassment

• Informal Resolution
• Can’t be required
• Only in response to formal complaint
• May be offered at any time prior to determination of responsibility.
• BUT can’t be used to resolve allegations that a teacher sexually harassed a student

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QUESTIONS?