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Title IX Coordinator Foundations Level One:

Sexual Harassment Foundations

for Higher Education

Training and Certification Course

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WELCOME!

Please log in to your ATIXA Event Lobby to access the training slides, supplemental materials, and to log your attendance.
The ATIXA Event Lobby can be accessed by scanning the QR

code or by visiting www.atixa.org/atixa-event-lobby.

You will be asked to enter your registration email to access the Event Lobby.
Links for any applicable training evaluations and learning

assessments are also provided in the ATIXA Event Lobby.

If you have not registered for this training, an event

will not show on your Lobby. Please email events@atixa.org or engage the ATIXA website chat app to inquire ASAP.

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(610) 993-0229 | inquiry@tngconsulting.com | www.tngconsulting.com

Any advice or opinion provided during this training, either privately or to the entire group, is never to be construed as legal advice or an assurance of compliance. Always consult with your legal counsel to ensure you are receiving advice that considers existing case law in your jurisdiction, any applicable state or local laws, and evolving federal guidance.

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Content Advisory

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The content and discussion in this course will necessarily engage with sexual harassment, sex discrimination, violence, and associated sensitive topics that can evoke strong emotional responses.

ATIXA faculty members may offer examples that emulate the language and vocabulary that Title IX practitioners may encounter in their roles including slang, profanity, and other graphic or offensive language. It is not used gratuitously, and no offense is intended.

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Introduction

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The primary focus of this course is responding to reports or complaints of sexual harassment, including reporting, the Formal Grievance Process, policy development, and other similar topics.

Title IX practitioners must ensure their institutional response to reports of sexual harassment is not deliberately indifferent.

Our goal is to provide a comprehensive framework to structure institutional response to sexual harassment reports and complaints.

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2024 Title IX Regulations Vacated

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All federal funding recipients are now subject to the 2020 Title IX Regulations

January 9, 2025: a federal district court in Kentucky vacated the 2024 Title IX

Regulations in their entirety; other federal courts have followed suit

– The 2024 Title IX Regulations are now vacated (null and void) and not in effect for any state, institution, or school

Institutions must revert to 2020-compliant policies and procedures for Title IX

cases

Ensure compliance with all 1975 and 2020 regulatory requirements

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Department of Education (ED) Updates

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Department changes include:

Significant staffing reductions
Closure of 7 of 12 OCR regional offices
Federal funding and oversight shifts

Executive Order (EO): Improving Education Outcomes by Empowering Parents, States, and

Communities (3/20/25)

Directed the Secretary of Education to “facilitate closure of the Department” and “return authority to the States and local communities”

Civil Rights enforcement remains in ED’s Office for Civil Rights (OCR), but other agencies (e.g., Health and Human Services (HHS) and Department of Justice (DOJ)) appear to be ramping up enforcement in certain areas
Increased focus on Title VI

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Dear Colleague Letter (02/04/25)

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ED released a Title IX-focused Dear Colleague Letter (DCL) on 02/04/25

OCR will enforce the 2020 Regulations, not 2024
Institutions must immediately shift open investigations to use 2020 Regulations
OCR will enforce Defending Women from Gender Ideology EO

Quoting the EO, OCR will:

“‘enforce all sex-protective laws to promote [the] reality’ that there are ‘two sexes, male and female,’ and that ‘[t]hese sexes are not changeable and are grounded in fundamental and incontrovertible reality.’”

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Executive Order re: Sex and Gender

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Defending Women from Gender Ideology Extremism and restoring Biological Truth to the

Federal Government (01/20/25)

Defines sex as a binary concept – man or woman
All agencies must ensure that intimate spaces are designated by sex, not gender identity
Limited Bostock v. Clayton County’s holding, says it only applies to Title VII

– Dept of Justice issued guidance on 02/12/25 that Bostock does not apply to Title IX

Prohibits federal funds and grants from promoting gender ideology
Revokes all Biden administration EOs addressing gender identity
Directs OCR to prioritize investigations/litigation to enforce rights and freedoms to binary nature of sex
Does not address sexual orientation
Courts initially paused enforcement, but the EO is now in full effect

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Executive Order re: Gender and Athletics

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Keeping Men Out of Women’s Sports (02/05/25)

Prohibits transgender women from playing women’s sports

– Cited as necessary for “safety, fairness, dignity, and truth”

Applies definitions from Defending Women from Gender Ideology EO
Threatens withdrawal of federal funds
Will use Title IX to enforce on a prioritized basis
Seeks to eliminate Olympic competition based on gender identity or testosterone reduction
Does not prohibit transgender men from participation
Subject of active and rapid enforcement by Federal government

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Rescinded Prior Guidance

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Rescinds all guidance documents inconsistent with the EO or subsequent guidance including:

White House Toolkit on Transgender Equality
2024 Title IX Regulations: Pointers for Implementation
ED Toolkit: Creating Inclusive & Nondiscriminatory School Environments for LGBTQ Students
Supporting Intersex Students
Supporting Transgender Youth in School
Letter of Educators on Title IX’s 49^thAnniversary
Confronting LGBTQ Harassment in Schools
Enforcement of Title IX - Based on Sexual Orientation and Gender Identity in light of Bostock v. Clayton County
AG’s memorandum “Application of Bostock v. Clayton County to Title IX”
EEOC’s “Enforcement Guidance on Harassment in the Workplace”

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Title IX Compliance Oversight

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Title IX

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

20 U.S.C. § 1681 & 34 C.F.R. Part 106 (1972)

Title IX has always mandated a response to sex discrimination, however the 2020 Title IX Regulations only apply to sexual harassment complaints

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Essential Compliance Elements

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The requirements to Stop, Prevent, and Remedy guide Title IX Coordinators (TIXCs) in their compliance work

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STOP discriminatory

conduct

3

REMEDY the effects of discrimination, on both individual and institutional levels

2

PREVENT recurrence, on both individual and institutional levels

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Title IX Compliance Oversight

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Title IX Coordinator Role

Mandated by Title IX regulations
Oversees institutional Title IX compliance
Responsibilities fall into two categories:

Responding to reports or complaints of sex discrimination and sexual harassment
Leading efforts to ensure sex equality across the entire institution

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Title IX Compliance Oversight

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Responsibilities:

Manage policy and procedures prohibiting sex discrimination and sexual harassment
Ensure institution acts reasonably to stop, prevent, and remedy
Provide notification of nondiscrimination and Title IX information to current and prospective students and employees, including union/contract employees
Develop and maintain accurate web and print-based Title IX publications
Train institutional employees on Title IX compliance
Recruit, supervise, and train Title IX Team
Serve as point person for all reports and complaints

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Title IX Compliance Oversight, Cont.

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Oversee Title IX Grievance Process and institution-wide programs
Track systemic issues or patterns

Take remedial action to prevent recurrence

Assess compliance efforts and program effectiveness

Create and disseminate annual compliance report (best practice)

Update institutional leadership on Title IX issues
Liaise with institutional legal counsel
Create/maintain records
Respond to government inquiries/investigations

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Compliance Considerations

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State law
Appetite for litigation
Institutional and community values
Physical layout of buildings and capacity for capital improvements
Athletics conference rules

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Review:

Title IX Scope and Definitions

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Review: Applicability

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Education program or activity in the United States
Control over the Respondent
Control over the context of the harassment
Applies to both student and employee

complaints

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Scope

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Sex Discrimination

Disparate Treatment Program Equity

Sexual Harassment
	Quid Pro Quo Hostile Environment	Domestic Violence Stalking
	Sexual Assault Dating Violence

Title IX

Retaliation

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Definitions

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Quid Pro Quo

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An employee of the Recipient
Conditions, implicitly or explicitly, the provision of an aid, benefit, or service of the Recipient
On an individual’s participation in

unwelcome sexual conduct

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Hostile Environment Sexual Harassment

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Unwelcome conduct
determined by a reasonable person
to be so severe, pervasive, and

objectively offensive (SPOO)

that it effectively denies a person equal access to the Recipient’s education program or activity

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Sexual Assault: Rape

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ATIXA Model Definition*:

Penetration, no matter how slight,
of the vagina or anus of a person,
with any body part or object, OR
Oral penetration

of a sex organ of the Complainant, or
by the Respondent’s sex organ…

Without the consent of the Complainant,
Including instances where the Complainant is incapable of giving consent because of their age or because of a temporary or permanent mental or physical incapacity

*Note: This definition differs slightly in wording and construction than the 2020

Regulations version, but not in substance

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Sexual Assault: Fondling

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ATIXA Model Definition*:

The touching of the private body parts (breasts, groin, buttocks) of the Complainant by the Respondent, or
The Respondent’s private body parts touching the Complainant, or
The Respondent causing the Complainant to touch the Respondent’s or their own

private body parts,

For the purpose of sexual gratification,

Without the consent of the Complainant,
Including instances where the Complainant is incapable of giving consent because of

their age or because of temporary or permanent mental incapacity

*Note: This definition differs slightly in wording and construction than the 2020

Regulations version by providing additional clarification

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Sexual Assault: Incest & Statutory Rape

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Incest

Sexual intercourse between persons related to each other within the degrees wherein marriage is prohibited by state law

Statutory Rape

Sexual intercourse with a person who is under the statutory age of consent

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Dating Violence

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Violence, on the basis of sex,
Committed by a person

Who is in or has been in a social relationship of a romantic or intimate nature with the Complainant

– The existence of such a relationship shall be determined based on the Complainant’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interactions between the persons in the relationship

Dating violence includes, but is not limited to, sexual or physical abuse or the threat of

such abuse

Does not include acts covered under the domestic violence definition

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Domestic Violence

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Violence, on the basis of sex,
Committed by a current or former spouse or intimate partner of the Complainant

By a person with whom the Complainant shares a child in common, or
By a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, or
By a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of the state, or
By any other person against an adult or youth Complainant who is protected from

that person’s acts under the domestic or family violence laws of the state

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Stalking

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Engaging in a course of conduct,
On the basis of sex,
Directed at the Complainant, that

would cause a reasonable person to fear for that person’s safety, or – The safety of others, or
suffer substantial emotional distress

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Retaliation: ATIXA Model Definition

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Recipient, or any member of Recipient’s community,

Taking or attempting take materially adverse action,
By intimidating, threatening, coercing, harassing, or discriminating against any individual,

For the purpose of interfering with any right or privilege secured by law or Policy, or
Because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this Policy and procedure

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Consent: ATIXA Model Definition

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Consent is not defined by the Title IX Regulations, but institutions are required by law to provide

a definition (some states prescribe a definition applicable in that state)

ATIXA’s Definition:

Informed, knowing, and voluntary (freely given)
Active (not passive)
Creates mutually understandable permission regarding the conditions of sexual activity
No means no, but nothing also means no; Silence and passivity do not equal consent
To be valid, consent must be given immediately prior to or contemporaneously with the sexual or intimate activity
Consent can be withdrawn at any time, so long as it is clearly communicated verbally or

non-verbally

Consent to one form of sexual activity does not necessarily imply consent to other forms of sexual activity

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Additional Definitions

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Common additional offenses

Sexual Exploitation
Harm/Endangerment
Discrimination
Intimidation
Hazing
Bullying

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Activity: Does Title IX Apply?

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Blake & Tamika

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Tamika is a graduate student serving as a graduate teaching assistant for a first-year chemistry course
Blake, a student in the course, has visited Tamika’s office hours each week to ask questions and

seek help with the course materials

With the midterm coming up, Tamika offered Blake her phone number so he could message her with questions and allow her to respond more quickly than email
After the midterm, Tamika continued texting Blake, and they often talked about personal things
Tamika started flirting with Blake and he flirted back
After a few weeks, Tamika asked Blake to get a drink with her after class
Blake declined

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Blake & Tamika

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Over the following few weeks, Tamika sent Blake several sexually explicit text messages, including a few partially nude pictures of herself
Blake tried to tell Tamika he wasn’t interested, but then gave up on responding
Eventually, Blake blocked Tamika
Tamika then resorted to winking at Blake during class and making thinly veiled sexual

comments in front of Blake’s classmates

Tamika then used her school email account to ask Blake to come to her office hours for a surprise, implying his grade would suffer otherwise

What Title IX definitions does this case study implicate, if any?

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Amina & Darius

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Amina and Darius are two first-year students who met during their institution’s

Welcome Week festivities

In October, Amina invited Darius to come with her to a play on campus
During the show, Darius tried to grab Amina’s hand, which was resting on her leg
Amina pulled her hand away, but Darius left his hand on her thigh for awhile
Amina froze and did not remove Darius’s hand
At one point during the play, Darius leaned over to try and kiss Amina, but Amina moved so Darius could not reach her mouth
He kissed Amina on the cheek instead

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Amina & Darius

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Then Darius put his arm around Amina and squeezed her shoulder, pulling her into him
After the play, Amina and Darius walked back to Amina’s residence hall
Darius put his arm around Amina’s waist during their walk, again pulling her in closer to

him

When they reached Amina’s residence hall, Darius pulled Amina closer to try and kiss

her again

Amina pulled him in for a quick hug, said goodbye, and bolted for the door

What Title IX definitions does this case study implicate, if any?

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Daveed & Calvin

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Daveed reported an incident involving a former partner, Calvin, to his Resident Assistant
Daveed reported that he and Calvin had been dating on-and-off for a few months but broke things off a few months ago
Since then, Calvin has been spreading rumors that Daveed has an STI and is very promiscuous
Daveed has been working with the Title IX office to try and resolve the situation since the RA followed their mandatory reporting obligations and submitted a report

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Daveed & Calvin

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Calvin’s friend Kristina is on the student programming board’s executive team and runs the club’s elections
Daveed is a club member and wants to be on the executive board next year
Daveed is now reporting that Kristina has been talking to the executive board about his Title IX report and that Daveed is not trustworthy enough to be on the executive board
Daveed feels like he can’t file a formal complaint, or he won’t get a fair shot at being

elected

What Title IX definitions does this case study implicate, if any?

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Formal Grievance Process Overview

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Title IX Grievance Process Overview

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1

INCIDENT

Complaint/ Notice to TIXC

2

INITIAL ASSESSMENT

Jurisdiction
Dismissal
Supportive Measures
Emergency Removal
Referral to

Another Process

Informal/Formal Resolution

3

FORMAL INVESTIGATION

NOIA
Interviews
Evidence

Collection

Draft Report
Share Draft and Evidence
Review/Comment
Final Report

4

HEARING

Questioning
Credibility Assessment
Determination

and Rationale

Sanctions
Remedies

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APPEAL

Appeal Grounds
Determination

and Rationale

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Prompt Resolution

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Complete without undue delay
Title IX Regulations do not define “prompt”

60 business days is a good guide, perhaps longer for moderately complex allegations

Grievance process may take longer than expected

Anticipate, mitigate, and document delays
Communicate with parties regarding delays

Must provide anticipated timelines for each proceeding

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Fair Resolution

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Treat all parties fairly

If the institution affords a right, privilege, benefit, or opportunity to one party, consider whether it should be provided to other parties

Ensures that all parties have opportunity to

fully participate in the grievance process

Make certain that all Title IX team members operate without bias and/or conflict of interest

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Parties’ Rights

During the Grievance Process

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Be accompanied by Advisor of their choice
Discuss the allegations under investigation without restriction
Gather and present relevant evidence without restriction
Inspect and review directly related evidence and investigation report
Present inculpatory and exculpatory evidence
Present witnesses
Written notice of the date, time, location, participants, and purpose of investigation

interviews or other meetings, with sufficient time to prepare

Review all relevant and directly related evidence before the investigation report is finalized

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Reports, Complaints, and Notice to the Institution

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When is the Institution “On Notice?”

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1

INCIDENT

Complaint/ Notice to TIXC

2

INITIAL ASSESSMENT

Jurisdiction
Dismissal
SupportiveMeasures
EmergencyRemoval
Referral to

Another Process

Informal/Formal Resolution

3

FORMAL INVESTIGATION

NOIA
Interviews
Evidence

Collection

Draft Report
Share Draft and Evidence
Review/ Comment
Final Report

4

HEARING

Questioning
Credibility Assessment
Determination and Rationale
Sanctions
Remedies

5

APPEAL

Appeal Grounds
Determination

and Rationale

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Point Person for Reports and Complaints

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TIXC (or designee) receives all reports or complaints regarding sexual harassment, misconduct, and sex discrimination

The TIXC oversees institutional Title IX efforts
Recipient may designate multiple entry points for information or reports

– Deputy Title IX Coordinator(s)

TIXC contact information must be included within:

The institution’s website
All handbooks or catalogs provided to applicants, students, employees, and unions

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When is the Institution

“On Notice?”

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The institution is “on notice” of sexual harassment when a report is made to:

TIXC, or
An Official with Authority (OWA): any official who has authority to institute corrective measures on behalf of the Recipient

ATIXA recommends including OWAs by role in policy

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Mandatory Reporting

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ATIXA recommends that all employees are mandated reporters (except for

confidential resources) under Title IX

Ensures information gets to those trained to respond
Enables institution to best support individuals
Supports tracking patterns
Provides for simpler, uniform, and universal training and reporting

Many employees will also have reporting responsibilities under other state and federal laws or institutional policy

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Party and Witness Privacy Concerns

Privacy vs. Confidentiality vs. Privilege

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CONFIDENTIALITY

Information protected by those who need not report to the TIXC because they are designated confidential or have ethical/statutory confidentiality duties (subject to exceptions)

1

PRIVACY

Statutory protection (FERPA) only allows disclosing records to those who need to know, but cannot guarantee confidentiality

3

PRIVILEGE

The highest legal protection (attorney giving advice to a client or clergy providing pastoral advice); client/ patient/parishioner controls the privilege

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Report vs. Complaint

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A report is different than a formal complaint:

Report

Notifies the TIXC of an incident and
Obligates the TIXC to offer supportive measures and explain the process

Formal Complaint

Written request to initiate an investigation
Physical document or electronic submission from Complainant

– OR signed by TIXC

Alleging sexual harassment
Complainant must be participating or attempting to participate (P/ATP)

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Report vs. Complaint Considerations

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Online reporting form
Anonymous reports
Requests for confidentiality
Take all reasonable steps to follow the Complainant’s wishes

Institution must respond effectively and prevent harassment of other students or Complainant

If TIXC takes no formal action in response to a report, document rationale

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Signing a Formal Complaint: PPTVWM

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In limited circumstances, a TIXC should sign a formal complaint even if the Complainant

declines to do so

Factors that likely indicate an ongoing risk of harm include:

Pattern

Predation
Threat
Violence
Weapons
Minors

Other Considerations for TIXC Signing a Formal Complaint

Employee Respondent
Complainant who is not P/ATP

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Interacting with Law Enforcement

TIXC must assist Complainants who wish to report to law enforcement
State laws, local practices, and MOUs may facilitate information sharing with law enforcement

Law enforcement may not be aware of

federal requirements under Title IX

Develop a reporting and information-sharing protocol

VAWA requirements may also apply

₅5₅5

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Initial Assessment

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Initial Assessment

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1

INCIDENT

Complaint/ Notice to TIXC

2

INITIAL ASSESSMENT

Jurisdiction
Dismissal
SupportiveMeasures
Emergency Removal
Referral to

Another Process

Informal/Formal Resolution

3

FORMAL INVESTIGATION

NOIA
Interviews
Evidence

Collection

Draft Report
Share Draft and Evidence
Review/ Comment
Final Report

4

HEARING

Questioning
Credibility Assessment
Determination and Rationale
Sanctions
Remedies

5

APPEAL

Appeal Grounds
Determination

and Rationale

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Jurisdiction

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TIXC is responsible for conducting an initial assessment to determine Title IX jurisdiction:

Does the alleged conduct, if proven, meet one of the definitions of Title IX sexual harassment?
Who is the Complainant?
Who is the Respondent?
Does the institution have control over the context of the alleged harassment?

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Jurisdiction

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Yes, or Arguable: move forward with Title IX Grievance Process
No: determine whether an alternate policy or process applies

Dismiss the complaint under Title IX
Document the rationale
Refer to other process

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Outreach and Intake

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After receiving a report, TIXC (or designee), should always reach out to the Complainant

Best practice and regulatory requirement

Outreach includes:

Introduction to Title IX and staff
Reason for the outreach
Offer to meet/speak over the phone; include right to Advisor
Available resources and resolution options, including how to file formal complaint
Discuss supportive measures and resources
Explain options to report to law enforcement
Follow up in writing with resources and information

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Outreach and Intake

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Intake includes:

Setting the table
Having written materials to reference and for parties to take with them

Follow up with an email containing these materials, too
Include access to medical care, including evidence preservation

Exploring facts, but not interviewing

Needed for initial assessment and Clery timely warning

Discussing Supportive Measures
Discussing Complainant’s options
Answering questions

DO NOT answer the question “What should I do?”

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After Outreach and Intake

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Consider if new information affects jurisdictional assessment
Implement any requested supportive measures and/or remedies

If formal complaint is filed:

Determine whether to dismiss or proceed with formal investigation
Consider whether emergency

removal is warranted

Evaluate whether complaint is appropriate for potential Informal Resolution

If no formal complaint is filed:

Determine whether TIXC needs to

sign a formal complaint

Consider whether emergency removal is warranted

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Supportive Measures

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Provided to parties throughout the process:

At no cost to the party
Individualized
Non-disciplinary, non-punitive
Protect safety of parties or environment, or deter sexual harassment
Restore or preserve equal access
Without unreasonably burdening other party

Publish the range of supportive measures
Avoid unnecessary disclosures about supportive measures
Consult with accessibility/disability services when appropriate
If not provided, document the rationale for refusal

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Supportive Measure Examples

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Counseling/

Health Services

Employee Assistance Program

Visa and Immigration Assistance

Community

Education

Alternate

Housing

Alternate Work

Arrangements

Safety Planning

Safety Escorts

Transportation

Assistance

Contact

Limitations

Academic

Support

Trespass Orders

Emergency

Notifications

Increased

Security

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Emergency Removal

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Imposed upon Respondents on an emergency

basis only

Individualized safety and risk analysis

Immediate threat exists to the physical health or safety of any student or other individual
The threat arises from the allegations of sexual harassment

Respondent entitled to immediate notice and

opportunity to challenge

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Administrative Leave

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May remove an employee Respondent using existing administrative leave procedures
A lower bar than emergency removal

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Mandatory Dismissal

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TIXC must dismiss the complaint at any time prior to a determination, if:

The conduct alleged in the formal complaint would not constitute sexual harassment as defined in the Title IX Regulations even if proved, and/or
The conduct did not occur in the Recipient’s education program or activity, or

No control over the context

The conduct did not occur against a person in the United States, or
At the time of filing a formal complaint, a Complainant is not P/ATP

AND the TIXC determines they do not need to sign a formal complaint

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Discretionary Dismissal

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The TIXC may dismiss the complaint (or a portion of it) at any time prior to a determination, if:

Complainant notifies the TIXC in writing that they would like to withdraw the formal complaint or any portion thereof
Recipient no longer employs or enrolls Respondent
Specific circumstances prevent the Recipient from gathering sufficient evidence for a determination

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Dismissals

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Must promptly notify parties of the dismissal
Notify parties that a dismissal may be appealed and include appeal information

Appeal Decision-maker(s) must be trained; must not have been involved in the complaint so far

Institution may, and often will, address reported behavior under some other applicable policy

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Informal Resolution

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Title IX permits voluntary Informal Resolution (IR)
Not available for employee-on-student harassment
IR is not defined by regulations
At discretion of TIXC, at any time prior to a final determination

Likelihood of resolution
Power dynamics
Goals and motivation of the parties to participate
Complexity and timing of the complaint

IR Facilitators must receive training, be free of bias or conflicts

ATIXA recommends IR Facilitators not serve in any other roles

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Informal Resolution, Cont.

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Procedural requirements:

Formal complaint
Parties must receive written notice of the allegations, IR procedures, records created, and potential consequences
Parties’ voluntary, written consent
Must still stop, prevent, remedy

May withdraw from IR to start or resume Formal Grievance Process at any time

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Investigation

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Investigation

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1

INCIDENT

Complaint/ Notice to TIXC

2

INITIAL ASSESSMENT

Jurisdiction
Dismissal
Supportive Measures
Emergency Removal
Referral to

Another Process

Informal/Formal Resolution

3

FORMAL INVESTIGATION

NOIA
Interviews
Evidence

Collection

Draft Report
Share Draft and Evidence
Review/ Comment
Final Report

4

HEARING

Questioning
Credibility Assessment
Determination and Rationale
Sanctions
Remedies

5

APPEAL

Appeal Grounds
Determination

and Rationale

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Who Should Investigate?

74

Investigator(s) may not be Decision-maker(s) for the same complaint
Tasks:

Conduct prompt, thorough, and impartial investigations
Collect the maximum amount of relevant information available
Write comprehensive investigation report summarizing all relevant evidence

Full-Time Investigator(s)

Investigator Pool

Coordinator as Investigator

External Investigator

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Investigation Steps

75

Receive Notice/Complaint
Initial Assessment & Jurisdiction Determination
Determine Basis for Investigation
Notice of Investigation and Allegations (NOIA)
Establish Investigation Strategy
Formal Comprehensive Investigation
Draft Investigation Report
TIXC Reviews Draft Report & Evidence
Parties Review Draft Report & Evidence
Final Investigation Report

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Determining a Basis for Investigation

76

There are three bases for investigations:

Incident: a specific incident or period

May involve one or multiple alleged violations

Pattern: repetitive or similar behaviors or targets chosen by the same Respondent over a period

Tend to involve multiple Complainants

Climate/Culture: discriminatory policies, processes, and environments

May have no identifiable Respondent
May cue up a subsequent incident or pattern investigation based on information

gathered during climate/culture investigation

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Investigation Scope

77

Scope refers to the allegations, timeframes, and

parties subject to the investigation

TIXC determines the scope of the investigation
Considerations:

Allegations outside of jurisdiction
Individual vs. group
Multiple complainants or Respondents
Counter-complaints

May need to adjust scope during process

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Notice of Investigation and Allegations

78

Notice of Investigation and Allegations (NOIA) letter

Sent to all parties, simultaneously
Must be sent prior to interviewing any party

The NOIA includes:

Parties’ Rights
Notice of the allegations and known details, such as identities of the parties
A description of the alleged conduct and relevant policy provisions
The date and location of the alleged conduct
Information about grievance procedures
Any Informal Resolution options

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NOIA Inclusions

79

The NOIA must also include:

Presumption that Respondent is not responsible
A statement that retaliation is not permitted
Reference to any code of conduct provisions (student or employee) regarding consequences for knowingly providing false statements
The NOIA must be updated if additional allegations arise during the course of the

investigation

Include or reference current policy and procedures

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Investigation Strategy

80

TIXC consults with Investigator(s) to strategize and plan the investigation:

Review elements of the specific policy provision(s) alleged to have been violated
Develop initial witnesses and tentative interview order
Discuss challenges with the type of complaint and the parties involved

Anticipate allegiances
Disrupt possible collusion
Predict obstacles and obstructions

Assess relevant pattern considerations
Identify preliminary undisputed and disputed facts and their significance
Consider types of possible evidence and the plan to acquire such evidence
Establish preliminary investigation timeline

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Formal Investigation

81

The burden to gather evidence is on the institution, not the parties.

Gather

Evidence

Assess Credibility and Evidence

Synthesize

Areas of Dispute and Agreement

G.A.S. Framework

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Understanding Evidence

82

Duty to collect relevant evidence

Evidence is any kind of information presented to

help determine what occurred

Relevant evidence is evidence that tends to prove or disprove the underlying allegations

– Inculpatory and exculpatory evidence

Some evidence may only be relevant to

assessing credibility

Collect all relevant and reasonably available evidence except if impermissible
Relevant evidence forms the basis of the

investigation report

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Directly Related Evidence

83

Connected to the complaint but neither inculpatory nor exculpatory and will not be relied upon by the Decision-maker (DM)
Must be provided to the parties and their Advisors for review

ATIXA recommends providing an

organized directly related evidence file

DMs ultimately determine what is relevant, directly related, or neither

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Privileged and Medical Information

84

The party must provide permission to obtain and/or include:

Evidence protected under a legally recognized privilege
Records made or maintained by:

Physician
Psychiatrist
Psychologist

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Specific Evidence Issues

85

Evidence of the Complainant’s sexual predisposition is never relevant
Evidence of the Complainant’s prior sexual behavior is not relevant except:

If offered to prove that someone other than the Respondent committed the alleged conduct; or
If offered to prove consent with respect to prior consent with the

Respondent

Even if admitted/introduced by the Complainant
Does not apply to Respondent’s prior sexual behavior or predisposition

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Evidence and the Consent Construct

86

Was force used by the Respondent to obtain sexual or intimate access?
Was the Complainant incapacitated?

If so, did the Respondent know, or
Should the Respondent have known that the Complainant was incapacitated?

What clear words or actions by the Complainant gave the Respondent permission for each specific sexual or intimate act that took place as it took place?

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Credibility

Credibility is largely a function of corroboration and consistency
Credibility Assessment involves evaluating the extent to which evidence is believable and reliable (accurate or truthful)

Refrain from focusing on irrelevant inaccuracies and inconsistencies

Note: Memory errors alone do not necessarily diminish witness credibility, nor does some evasion

87

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Drafting, Reviewing, and Finalizing the Investigation Report

88

Final Investigation Report

TIXC/Legal Counsel Review Draft Report and Evidence

Parties and Advisors Review Draft Report and Evidence

Draft Investigation Report

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Parties’ and Advisors’ Review of Report

and Evidence File

89

Draft report and directly related evidence must:

Be sent to each party and Advisor in an electronic format or hard copy
Include evidence upon which the Recipient does not intend to rely
Include exculpatory and inculpatory evidence

Investigator must:

Allow 10 days for written response
Consider parties’ feedback and incorporate where appropriate

Investigator sends the final investigation report to the parties and Advisors for review 10 days prior to the hearing

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Decision-Making

90

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Decision-Making

91

1

INCIDENT

Complaint/ Notice to TIXC

2

INITIAL ASSESSMENT

Jurisdiction
Dismissal
Supportive Measures
Emergency Removal
Referral to

Another Process

Informal/Formal Resolution

3

FORMAL INVESTIGATION

NOIA
Interviews
Evidence Collection
Draft Report
Share Draft and Evidence
Review/

Comment

Final Report

4

HEARING

Questioning
Credibility Assessment
Determination and Rationale
Sanctions
Remedies

5

APPEAL

Appeal Grounds
Determination

and Rationale

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Decision-Making

92

Title IX Coordinator

Oversees process
Facilitates scheduling and communication
Ensures sanction compliance
Implements remedies
Provides institutional memory and precedent information
Trains DMs
Maintains institutional records

Decision-maker(s)

Is not TIXC or Investigator
Facilitates Decision-making process, including questioning
Determines relevance
Assesses credibility
Makes a finding of fact
Determines whether policy was violated
Assigns sanctions (if applicable)
Writes determination rationale

All complaints must be resolved through a decision-making phase unless an Informal Resolution is

reached, or the complaint is dismissed

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Live Hearings

93

May impose reasonable decorum rules
Questions must be asked by the parties’ Advisors and/or DMs

If the party does not have an Advisor, the institution must provide an Advisor for the purpose of asking questions during the hearing, if the party wishes to ask questions
DM must determine whether a proposed question is relevant and permissible

Hearing can be in one location or virtually through technology

DM and parties must be able to simultaneously see a party or witness when they are speaking/communicating

Must create an audio or video recording or transcript and make it available to parties to

inspect and review

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Finding and Final Determination

94

Making a Finding

DMs determine what occurred based on the standard of evidence

Making a Final Determination

DMs determine whether what occurred is a policy violation applying the standard of evidence
Consider each allegation individually for each Respondent

Standard of Evidence

Apply either the preponderance of the evidence standard or the clear and convincing evidence standard
Standard of evidence must be consistent for all formal complaints of sexual

harassment

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Standard of Evidence

95

Insufficient

Information

Clear and

Convincing

Preponderance of

the Evidence

Beyond a Reasonable Doubt

No Evidence

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Sanctions and Remedies

96

Sanctions

Only implemented after a determination of responsibility
Nexus between sanctions and misconduct
Goal: stop, prevent, and remedy
TIXC does not issue sanctions but oversees the process
TIXC assures sanction compliance

Failure to comply could lead to discipline

Remedies

May be implemented before or after a determination
TIXC determines remedies that are fair and not clearly unreasonable given the circumstances
Goal: preserve or restore access to education program and activity
TIXC ensures remedies are implemented

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Sanctions

97

Nature of Title IX sanctions
May consider prior misconduct, precedent, acceptance of

responsibility, and collateral or multiple violations

Sanctioning Pitfalls

Conflating the finding, determination, and sanctioning
Failure to stop, prevent, and remedy

Unwillingness to expel, suspend, or terminate
Prescribed sanctioning
Inconsistent or disparate sanctions

Impact or mitigation statements influencing findings
Failure to consider aggravating or mitigating circumstances

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Written Determinations

98

Written Determination

Authored by DMs
TIXC/Legal counsel reviews
TIXC communicates to the parties simultaneously in writing

Finality

On the date the institution provides a written appeal determination

– OR the date when an appeal would no longer be timely

Written Determination Elements

Applicable policy
Procedural steps from complaint through determination
Statement of and rationale for the

result of each specific allegation

Sanctions imposed (if any) and rationale for chosen sanctions or deviation from precedent
Whether remedies will be provided to

Complainant

Procedures and bases for appeal

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Appeals

99

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Appeals

100

1

INCIDENT

Complaint/ Notice to TIXC

2

INITIAL ASSESSMENT

Jurisdiction
Dismissal
Supportive Measures
Emergency Removal
Referral to

Another Process

Informal/Formal Resolution

3

FORMAL INVESTIGATION

NOIA
Interviews
Evidence

Collection

Draft Report
Share Draft and Evidence
Review/ Comment
Final Report

4

HEARING

Questioning
Credibility Assessment
Determination and Rationale
Sanctions
Remedies

5

APPEAL

Appeal Grounds
Determination

and Rationale

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Appeal Process

101

Institution must offer a fair appeal process

Institutional policy must include grounds and process for appeal
Institutions must provide information about the appeal process in writing to parties and Advisors
One level of appeal is best practice
Typically, document-based review for error only; not a new consideration
Discretion of panel vs. single Appeal DM
Deference is given to the original DM

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Appeal Decision-Maker

102

Cannot be TIXC or serve another role in the same complaint resolution
Makes determination on a party’s request for an appeal
Reviews written submissions from parties
May review investigation report or evidence gathered during investigation/decision-

making phase

May speak with Investigator, DM, parties, and/or witnesses
Review of complaint should be limited to the grounds noted in the appeal request
Draft a written determination that outlines the rationale for the outcome

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Appeal Grounds

103

Must offer appeals on the following grounds:

Procedural irregularity that affected the outcome of the matter

New evidence that was not reasonably available at the time of the determination that could affect the outcome of the matter

Conflict of interest or bias by the TIXC, Investigator, DM that affected the outcome of the matter

Institutions have the discretion to add additional appeal grounds

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Appeal Outcomes

104

Appeal Decision-maker

Must complete a written determination with rationale
Determinations may include:

Upholding the original determination and sanctions (if any)
Remanding the complaint back to the DM for reconsideration or to the

Investigator for further investigation

Modifying the original determination and/or sanctions (if any)
Overturning the determination (not recommended)

Cannot be TIXC or serve another role in the same complaint resolution

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Recordkeeping

105

Recipient must maintain records for a minimum of

seven years:

Sexual Harassment formal complaints, including determination and discipline/remedies
Appeals and results
Rationales for all determinations
Informal Resolution
Supportive measures
Measures taken to preserve/restore access
All training materials

Document how response was not deliberately indifferent

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Clery Act/VAWA Section 304

106

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Clery/VAWA Section 304 Intersections

107

Clery Act

Designed to improve reporting and transparency of campus crime statistics
Clery Geography and Title IX jurisdiction are separate and overlapping

Timely Warning requirement
Clery Annual Security Report (ASR)

Violence Against Women Act (VAWA)

Intended to improve community-based responses to domestic violence, dating violence, sexual assault, and stalking
VAWA § 304 Amended the Clery Act

Added new awareness, training, and procedural requirements
Officials conducting disciplinary proceedings must be trained annually

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Clery/VAWA Section 304 Intersections, Cont.

108

Inform Complainants about:

Importance of preserving evidence
Institutional reporting
Law enforcement reporting

Complainants should receive written information regarding:

Common action items or resources victims should consider
Supportive Measures
Services available on- and off-campus
Reporting options
Protection options

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Prevention and VAWA

109

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What is Prevention?

110

Aims to prevent harm before it occurs

Primary

Secondary

Targets a problem that already exists, usually immediately after an injury occurs

Tertiary

Provides treatment and long-term remedies when harm has already occurred

An integrated and collaborative approach to addressing multiple areas of wellness that is:

Evidence-based
Multi-layered
Directed at individual, community, and environmental levels

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VAWA Prevention Programming

111

Programs tailored to each institution and its populations
Ongoing prevention and awareness campaigns

Responsive to community needs
Tailored to be culturally relevant and inclusive

Direct programming to all incoming students and new employees

Make a good faith effort to reach all incoming students and new employees
Include a statement that the institution prohibits sexual assault, dating and domestic violence, and stalking

Consent definition

Provide risk reduction information

Increase bystander action
Increase empowerment for victims

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VAWA Training

112

Annual training for officials involved in investigating and/or resolving complaints:

Sexual assault, dating and domestic violence, and stalking
Conducting an investigation
Conducting a hearing

Ensure training materials are neutral, follow Title IX regulations in effect

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Policy Management

113

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Title IX Policy and Procedures

Title IX requires policies and procedures that facilitate resolution of sexual harassment complaints
Policy

Clearly define expectations and prohibited conduct

Procedures

Govern how to resolve alleged policy violations fairly

TIXC should have decision-making authority in policy and procedure revision process

114

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Policy and Procedures Development

115

Inventory Existing Policies

& Procedures (P&P)

Harassment and

discrimination P&P

Student Conduct
Human Resources
Collective Bargaining

Agreements

Athletic policies
State and federal laws
System-based policies

Create and Implement

Policies & Procedures

TIXC-led effort
Values and mission alignment
Reporting mechanisms
Compliant
Comprehensive
Comprehensible
Accessible
Coordinate overlap and

align with other policies

Avoid Discriminatory

Policies & Procedures

Consistency across all related policies and procedures
No variations based on

parties’ identities

No differential treatment

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Sources of Requirements and Guidance

116

Federal Law and Regulations

State/Local Law and Regulations

Relevant Court Decisions

OCR Resolution Agreements

Insurance Provider Requirements

Governing Body Policies

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Overlapping Policies

Governing Body

Board Policy
Board Administrative Procedures

Employee-Facing Publications and Websites

Human Resources Policies & Procedures
Faculty/Staff Handbooks

Student-Facing Publications and Websites

Student Conduct Code and/or Handbooks
Student Org. Policies & Procedures

Student and Employee-Facing

Civil Rights & First Amendment Policies & Procedures
Acceptable Use Policies
Athletic Policies

117

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Publication Requirements

118

Title IX regulations require Recipients to publish policies, procedures, and non- discrimination notices to:

Students and applicants
Employees and employment applicants
All unions or professional organizations holding collective bargaining or professional agreements with the Recipient

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Mandatory Notice of Non-Discrimination

119

Provide to students, employees, applicants, and all unions or professional organizations with collective bargaining agreements
Publish prominently on institutional website and in handbooks or catalogs
Required elements:

A statement that the institution does not discriminate on the basis of sex

and prohibits sex discrimination in any education program or activity

TIXC contact information
Location of policy and grievance procedures
Instructions on how to make a report
Information about filing a complaint with Title IX and OCR

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Minors and Title IX

120

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Minors on Campus

121

Minors &

Title IX

Dual Enrollment

Students

Prospective Students

Online

Event Attendees

Summer

Programs

Childcare

Health Services &

Medical Care

Guests (invited and uninvited)

Family Members

Recreational Visitors

Field Trips

Tutoring &

Instruction

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Common Challenges

122

Policy provisions for minors on campus
Consider:

Number of minors, location, access

– Restrooms, locker rooms, residential facilities

Training for those with access to minors or supervision of minors
Mandatory reporting for child abuse

Children in classrooms
Dual Enrollment/Early College

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Dual Enrollment & Title IX Compliance

123

Dual enrollment programs present a variety of compliance challenges:

Training
Reporting, including child abuse reporting
Jurisdiction and downstream effects
Supportive Measures
Age of Consent
Remedies
FERPA and parents’ rights
Collaborative investigations

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Camps and Programs: Significant Assistance

124

Not Ours

Run by a different entity
Other entity hires the staff
Institution only rents out space at fair market value

Kind of Ours

The money comes through a

shell or through the institution

Employees are students or temporary hires
May use institution’s name
Preferred pricing/discounts

Completely Ours

The money comes into the

institution

Staff are institutional employees
Uses institution’s name

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Sample Policy

125

Abuse of Minors

In addition to having students who are minors enrolled,

College/University

hosts minors

as guests and as participants in youth activities.

State

law narrowly imposes duties to

report certain crimes involving minors and abuse to appropriate officials including mental health professionals, medical providers, school counselors, clergy, and law enforcement officers. Institution’s protocol is that in addition to fulfilling the requirements of state law [insert here] all employees will also promptly report all suspected child abuse, sexual

abuse of minors, and criminal acts by minors to the

campus police/security office

without delay. Clery Act reporting of offenses for statistical purposes occurs whether victims are minors or adults.

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Trauma-Informed Practices

126

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Understanding Trauma

127

Trauma is exposure to an event or events that create a real or perceived threat to life, safety, sense of well-being and bodily integrity

Acute, chronic, or complex
Neurological, biological, psychological, social, and emotional impacts
Developmental, intergenerational, historical, secondary, vicarious, or collective
Responses to trauma can vary, depending on a variety of factors

Provide all persons with support that makes Title IX services and processes accessible, including those who may have experienced trauma

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Trauma-Informed Practices

128

Key principles of trauma-informed practice:

Safety
Trustworthiness and transparency
Collaboration and mutuality
Empowerment, voice, and choice
Cultural and historical context

ATIXA Position Statement: Application of trauma-informed practices in our field has gotten way ahead of the actual science

ATIXA Recommendation: Incorporate trauma-informed investigation and interviewing

methods without compromising gathering credible, relevant evidence

Trauma-informed practices should not significantly influence evidence evaluation

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Title IX Team

129

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Meeting Community Needs

130

Institutions must stop, prevent, and remedy sex discrimination and sexual harassment and ensure equitable access to programs
TIXC cannot accomplish this alone
Institutions must adequately staff their Title IX teams to ensure compliance and could consider:

Adding permanent position(s)
Creating new role(s)
Identifying paid employees to fulfill roles
Reassigning tasks
Regional consortia or sharing arrangements
Third-party outsourcing

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Title IX Team Roles

131

Designation by location, population, or responsibilities
Consider broad Title IX compliance needs
Can step in for TIXC when there is a conflict or the TIXC is otherwise unavailable
Not required, but a best practice

Deputy TIXCs

Title IX Team Members

Deputy Title IX Coordinators
Investigators
DMs
Informal Resolution Facilitators
Appeal DMs

DM for emergency removal challenges
Dismissal Appeal DMs
Advisors

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Structuring the Title IX Team

132

The Title IX team must be large enough to fulfill required separation of roles, though the

below numbers recognize that some individuals fill more than one role

To reduce conflicts of interest and bias, and manage attrition/turnover/burnout, TIXCs should overrecruit and train all possible backups

ATIXA Recommends (Moderate Staffing Size):

1	Title IX Coordinator
3-5	Deputy Coordinators
2-4	Investigators
5-10	DMs
1-3	Informal Resolution Facilitators
4-6	Advisors

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Building the Title IX Team

133

Considerations for Building the Team

Potential for conflict of interest or bias
Educational credentials or

professional experience

Individual’s workload and availability
Role at institution
Social group memberships
Social media activity
Volunteer affiliations

Title IX Coordinator

Trained and agile
Consider title, office location or department, supervisory responsibilities, and supervisor
ATIXA recommends reporting to President/Cabinet-level
Must have autonomy and

independence

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Title IX Team Training

134

TIXC (or designee) has responsibility to ensure the Title IX Team also receives annual training on the topics on the preceding slide, and:

Institutional response obligations to reports of sex discrimination and sexual

harassment, including reporting requirements

Definition of sexual harassment
Title IX Grievance Procedures
Serving impartially and without conflicts of interest or bias
Meaning and application of relevant questions and evidence

IR Facilitators must receive training on rules and practices associated with the

institution’s Informal Resolution process

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Assessing the Title IX Team

135

TIXC must ensure team members are able to perform their roles

Consider:

Confidentiality and privacy practices
Cultural competence
Decision rationales
Impartiality/neutrality
Writing skills
Training and competence

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Title IX Team Supervision/Oversight

136

Requires ongoing leadership, support, and oversight to ensure compliance obligations

and institutional needs are met

Often not their supervisor of record, but TIXC will oversee part of their work
Key strategies, include:

Clear expectations for roles, responsibilities, and performance metrics
Ongoing training and individualized professional development opportunities
Professional ethics modeling
Prompt and honest work product feedback
Resource allocation
Regular meetings or check-ins
Supervisory availability and support

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Managing Team Member Complaints

137

TIXC must manage complaints about a Title IX team member with a sensitive and

comprehensive approach, including:

Prompt response

May need to investigate and gather information

Consultation with legal counsel, human resources, or other supervisory staff (if appliable)
Supportive Measures (if appropriate)
Take appropriate action with rationale

Determine if there is mishandling, bias, or a conflict of interest
Remove the Title IX team member from the current complaint
Provide remedial training and education
Remove the individual from the Title IX team

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Assessing the Title IX Program

138

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Assessing the Title IX Program

139

Assessment should be multifaceted:

Benchmarking
Climate assessments
Compliance reporting
Complaint, investigation, and resolution process debriefing
Internal reviews/audits/assessments

Address areas for improvement
Assess Title IX team
Conduct barrier analysis
Identify strengths, program gaps

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Climate Surveys

140

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Title IX-Based Climate Survey Objectives

141

Focused on sex discrimination and sexual harassment, including sexual assault, dating and domestic violence, and stalking

Assess prevalence of sex discrimination and sexual harassment
Evaluate awareness of Title IX policies, resources, and reporting procedures
Gauge the perception of school/campus safety and the effectiveness of district/institutional responses
Identify gaps in services, support, and education related to Title IX
Could lay a foundation/justification for affirmative action (though courts hostile)

Assists TIXC with monitoring the education program for barriers to reporting

Climate Survey Stages

Development Implementation Analysis

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Climate Survey Structure

142

Demographic questions

Narrow results
Basis for comparison

Experience and perception questions

Bulk of the survey
Gain a better understanding of the

participants’ experience

ATIXA recommends targeted questions to evaluate how well individuals understand existing policy and procedures

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Climate Survey Report

143

Draft a comprehensive overview of the Climate Survey responses
Compiling a report can feel onerous, some tips to help:

Create or follow a template
Assign sections to committee members to draft
Allocate sufficient time for writing and review

Consider:

Accessible platform for sharing the climate survey results
Showcasing both qualitative and quantitative data
Sharing a “next steps” plan to address areas needing improvement

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Assessment Outcome Sharing

144

Parents/

Community Partners

Governing/ Accrediting Bodies

Faculty/Staff

Administrators

Prospective Students/Employees

Students

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Questions?

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ALL ATIXA PROPRIETARY TRAINING MATERIALS ARE COVERED BY

THE FOLLOWING LIMITED LICENSE AND COPYRIGHT.

By purchasing, receiving, and/or using ATIXA materials, you agree to accept this limited license and become a licensee of proprietary and copyrighted ATIXA-owned materials. The licensee accepts all terms and conditions of this license and agrees to abide by all provisions. No other rights are provided, and all other rights are reserved. These materials are proprietary and are licensed to the licensee only, for their use. This license permits the licensee to use the materials personally and/or internally to the licensee’s organization for training purposes only.

If these materials are used to train Title IX personnel, they are subject to 34 C.F.R. Part 106. If you have lawfully obtained ATIXA materials by registering for ATIXA training, you are licensed to use the materials provided for that training.

34 C.F.R. 106.45(b)(10) (2020 Regulations) requires all training materials to be publicly posted on a Recipient’s website. Licensees subject to the 2020 Title IX Regulations may download and post a PDF version of training materials for their completed training to their organizational website to comply with federal regulations. ATIXA will provide licensees with a link to their materials. That link, or links to the materials on that page only, may be posted to the licensee’s website for purposes of permitting public access to the materials for review/inspection only.

You are not authorized to copy or adapt these materials without ATIXA’s explicit written permission. No one may remove this license language from any version of ATIXA materials. Should any non-licensee post these materials to a public website, ATIXA will send a letter instructing the licensee to immediately remove the content from the public website upon penalty of copyright violation. These materials may not be used for any commercial purpose except by ATIXA.

146

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