Title IX Update �for�Chapel Hill Independent School District�September 2023

Prepared by:

Randall J. Cook

Hardy Cook & Hardy, PC

​

What is Title IX?

Title IX of the Education Amendments of 1972 states:

​

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.

​

Title IX began as an enforcement mechanism for gender equity in athletics, and over time has been broadened to include sexual discrimination.

Title IX is not lengthy, but its scope is very broad and it protects any person – not just students or employees. In addition, Title IX is not just for public schools. Any entity providing an education or activity, whether public or private, must comply with the law as a condition of receiving federal funds.

How does Title IX apply to sexual harassment?

Neither Title IX nor its implementing regulations dealt expressly with sexual harassment. In the 1990’s, the US Supreme Court issued two cases holding when a school district could be liable for sexual harassment under Title IX:

In Gebser v. Lago Vista ISD, a female high school student had a sexual relationship with a male teacher. The relationship was not reported to the school district until it ended, at which time the teacher was arrested and his employment terminated. Student sued the school arguing the school should have known about its employee’s misconduct and done something to stop it. The Court held that a district may be liable for monetary damages under Title IX when an employee with authority to take corrective action had actual notice of sexual harassment within a district program or activity by responds with deliberate indifference. 524 US 274 (1998).

How does Title IX apply to sexual harassment?

Not long after Gebser, the Court considered a case with a female 5^th grader who alleged she was sexually harassed by a male classmate. In Davis v. Monroe County Board of Education, the Court the affirmed actual notice and deliberate indifference elements from Gebser, adding that, when a student is sexually harassed by another student, the district can only be liable when the harassment is “severe, pervasive, and objectively offensive.” 526 US 629, 633 (1999). Consequently, mere teasing or name calling, even if based on a student’s sex, would not rise to the level of sexual harassment under Title IX.

​

Gebser and Davis remain the controlling judicial authorities for when a school district can be held liable for violating Title IX and subject to monetary damages, injunctive relief, etc.

​

What is the Office for Civil Rights?

The US Dept. of Education’s Office for Civil Rights (“OCR”) enforces federal laws that prohibit discrimination in education, including Title IX. Federal civil rights statutes and regulations promulgated thereunder provide OCR the power to address alleged violations – including the power to withhold Federal funding if OCR finds a violation a school is unwilling to resolve.

​

A person who believes he or she has been discriminated against may file a complaint with OCR, initiating an investigation. Alternatively, OCR may initiate its own investigation or compliance review. OCR also issues written policy guidance to assist schools and other recipients of federal funds in compliance with the laws that it enforces.

What is the Office for Civil Rights?

Historically, OCR policy guidance stated higher standards for administrative enforcement than the Gebser/Davis standards for liability in private litigation.

​

In an October 26, 2010, “Dear Colleague” letter, OCR said that when a student is bullied because of a protected characteristic (race, national origin, religion, disability, sex) the conduct constitutes harassment. In that letter, OCR also said a school is “responsible for addressing harassment incidents about which it knows or reasonably should have known.” And, if the school concludes harassment occurred, it “must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent recurrence.”

What is the Office for Civil Rights?

During the Obama administration, OCR issued multiple guidance letters regarding Title IX, which inspired debate about how to address sexual violence and harassment of victims while also protecting the due process and First Amendment rights of the accused. Critics accused the administration of “ruling by letter” rather than formal rulemaking.

​

During the Trump administration, OCR took a different approach and released revised regulations which became effective August 14, 2020. These regulations remain in place for now, but . . .

Are there new Title IX regulations?

On April 6, 2023, OCR, now under the Biden administration, formally proposed revisions to the regulations adopted during the Trump administration. The comment period for the proposed revisions has closed. As of yet, however, the proposed revisions have not been made final.

​

Consequently, your current policies that were put in place as a result of the 2020 regulations remain in place. So, we will review them this morning, but I will try to point out [typically in red] where you can expect changes if and when the currently proposed revisions become final.

Spoiler alert!!

​

Whether “sex” as used in Title IX includes gender and gender identity is judicially unsettled. In Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), the U.S. Supreme Court held that Title VII (another federal anti-discrimination statute) protects gay and transgender individuals from workplace discrimination. Bostock held that unlawful discrimination occurs under Title VII when an employer intentionally treats an employee differently because of the employee’s sex and that, in this context, “sex” includes gender and gender identity. Although Title VII and Title IX are separate federal statutes, courts often apply the same standards to both.

​

In June 2021, OCR issued a formal notice of interpretation that expanded the scope of Title IX with regard to sexual orientation and gender identity by applying the Bostock holding to Title IX. [U.S. Dep’t of Educ., Office for Civil Rights, Letter to Educators on Title IX’s 49th Anniversary (June 23, 2021).] OCR has been preliminarily “enjoined and restrained from implementing” the 2021 guidance document against the states of Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, Tennessee, South Carolina, South Dakota, and West Virginia. See State of Tenn., et al. v. U.S. Dep’t of Educ., No. 3:21-cv-308 (E.D. Tenn.) (July 15, 2022). Note that Texas is not on that list. But the Texas A.G.’s office filed a suit challenging the guidance in June 14, 2023, in the Northern District of Texas, Fort Worth Division.

A post-Bostock decision from the 11^th Circuit Court of Appeals involving the use of sex specific school bathrooms declines to apply Bostock in a Title IX case. In Adams ex rel. Kasper v. Sch. Bd. of St. John’s Cnty., No. 18-13592, 2022 WL 18003879 (11th Cir. Dec. 30, 2022), the court refused to apply Bostock to Title IX’s definition of “sex.” According to the 11^th Circuit, “sex,” as used in Title IX, means biological sex and any change to add gender identity to that definition should be done by congress, not a court. Adams notes that the school district in that case made substantial effort to accommodate the student including the acceptance of the student’s gender presentation and preferred name, but the school district also required all students to use either gender neutral bathrooms or bathrooms aligned with their biological sex. The Adam’s ruling is based in large part on the right to privacy of other students and the specific exception within Title IX that allows for sex specific bathrooms and other facilities. Adams conflicts with opinions from other circuits which sets the issue up for consideration by the Supreme Court. But until that happens, expect OCR, at least under the current administration, to continue its aggressive advocacy in this area. And expect individuals, backed by advocacy groups, to be active in their challenges.

​

Texas is in the 5^th Circuit Court of Appeals. There is no direct 5^th Circuit ruling, yet, on this issue. Before Bostock, however, the 5^th Circuit ruled that the parents of a male middle school student who committed suicide after allegedly being bullied by male students because of gender-based stereotypes sufficiently stated a student-on-student sexual harassment claim under Title IX. Carmichael v. Galbraith, 574 F. Appx 286 (5th Cir. 2014).

​

Sexual Harassment (presently) defined as . . .

. . . Conduct, on the basis of sex, that satisfies one or more of the following:

​

1. An employee conditioning an aid, benefit, or service of the district on an individual’s participation in unwelcome sexual conduct (i.e., quid pro quo sexual harassment);
2. 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 district’s education program or activity; or
3. Sexual assault, dating violence, domestic violence, or stalking, as these terms are defined in the federal Violence Against Women Act (VAWA).

​

13 CFR § 106.30(a)

1. Quid Pro Quo Sexual Harassment:

• An EMPLOYEE making an aid, service, or benefit of the district conditional on an individual’s participation in unwelcome sexual conduct.
• This applies only to employee conduct (not students, volunteers, etc.)
• Unwelcomeness and severity of conduct presumed.

2. Hostile Environment Sexual Harassment:

Old Definition: unwelcome conduct determined by a reasonable person to be severe, pervasive, OR persistent, and to interfere with or limit a student’s ability to participate in or benefit from school services or opportunities.

NEW Definition: unwelcome conduct determined by a reasonable person to be so severe, pervasive, AND objectively offensive that it effectively denies a person’s access to the recipient’s education program or activity.

3. Violence Against Women Act (VAWA):

• Sexual Assault – 20 U.S.C. § 1092(f)(6)(A)(v) – an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.
• Domestic Violence – 34 U.S.C. § 12291(a)(8) – includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by 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.
• Dating Violence – 34 U.S.C. § 12291(a)(10) – violence committed by a person—

(A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and

(B) 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.
4. Stalking – 34 U.S.C. § 12291(a)(3) – engaging in a course of conduct directed at a specific person that would cause a reasonable person to—
1. fear for his or her safety or the safety of others; or
2. suffer substantial emotional distress.

​

What is the District’s required response?

Current rules require a district to:

• respond promptly,
• in a manner that is not deliberately indifferent,
• to actual knowledge of sexual harassment in an education program or activity of the district. 34 CFR § 106.44(a).
• In many respects, the current rules adopt the Gebser/Davis standards.
• Unlike Gebser, however, which required a district official with a certain level of authority to have actual notice of the harassment, current rules provide that notice of potential sexual harassment by ANY employee of the school district is enough to trigger a duty to respond. 34 CFR § 106.30(a).

Full circle and then some . . .

• Old OCR Guidance: The school must take immediate action to eliminate the sexual harassment or sexual violence, prevent its recurrence, and address its effects.
• 2020: When the District has actual knowledge of sex harassment it must respond in a manner that is not deliberately indifferent.
• 2023 (as proposed): The District must operate education programs or activities free from discrimination at all times and must take prompt and effective action to end any prohibited sex discrimination that has occurred in its education program or activity, prevent its recurrence, and remedy its effects.

​

MAJOR CHANGE COMING

• Proposed 2023 regulations prohibit not just sexual harassment but ALL FORMS of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.

​

• Sex-based harassment now defined to include sexual harassment; harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; and other sex-based conduct.

Current District policies are based on the 2020 Title IX regulations.

• The definition of prohibited conduct includes conduct that meets the current Title IX definition of sexual harassment. Note that the policies also retain broader definitions of prohibited from previous versions to ensure that all prohibited conduct is addressed.
• The policies require ANY employee who receives a report of prohibited conduct based on sex to notify the Title IX Coordinator.
• The District developed a formal Title IX complaint process to comply with the 2020 regulations.

What policy changes were made in 2020?

• The District adopted and published grievance procedures that provide for the prompt and equitable resolution of student and employee complaints, including a grievance process for resolving formal complaints that complies with 34 CFR § 106.45(b). The District’s formal complaint process should be posted on the District’s website.
• To determine responsibility in a Title IX formal complaint of sexual harassment, the policies designate that the district uses a preponderance of the evidence standard.*
• Provisions on retaliation and records retention also were updated.

​

* Note: 34 CFR 1-6.45(b) requires the district’s process to state whether the standard used will be preponderance of the evidence or the clear and convincing evidence standard. The rules also require districts to use the same standard of evidence for investigation of all formal Title IX sexual harassment complaints, including complaints by students and employees.

Education Program and Activity

• Title IX covers sexual harassment that happens in a school’s “education program or activity.”
• This is not limited to “on campus” behavior and situations.
• It includes locations, events, and circumstances when a school exercises substantial control over
• the context of the alleged harassment; and
• the person accused of committing sexual harassment.
• i.e., extracurricular activities, field trips, academic conferences, school buses, etc.
• 2023: Conduct that occurs off-campus when respondent is a representative of the District or otherwise engaged in conduct under the District’s disciplinary authority.

When does a school have notice?

• Once a school has actual knowledge of sexual harassment or allegations of sexual harassment [2023: any sex discrimination], the school must respond and take action.
• Under current rules, a school has actual knowledge when it has notice that a person may have been victimized by sexual harassment.
• Any person, whether the alleged victim or a parent, friend, or bystander, has the right to report sexual harassment to put the school on notice.
• And, sometimes, school personnel may personally witness sexual harassment.

IN K-12 SCHOOLS, ANY SCHOOL EMPLOYEE WITH NOTICE PUTS THE SCHOOL ON NOTICE.

Response to Sexual Harassment

• The District must communicate to all relevant constituencies (via website, employee handbook, student handbook, etc.) the name and contact information for the school’s Title IX Coordinator.
• Reports can be verbal or written.
• Under current policy, ANY employee who is aware of sexual harassment must report it to the school’s Title IX coordinator.
• Once the Title IX coordinator is aware of a report, he or she must take action.
• 2023: District must provide info and training about (1) when employees must notify Title IX coordinator about possible sex discrimination and (2) how students may report sex discrimination for purpose of seeking confidential assistance only or to initiate the grievance procedures.
• Complainant who chooses to leave the program or activity as a result of sex discrimination or other reasons may still file a complaint.
• Title IX Coordinator must monitor for barriers to reporting.

Response to Sexual Harassment

When a school district learns that someone is said to be the victim of sexual harassment, the school must act (usually through the Title IX coordinator) to:

• Promptly contact the person to discuss supportive measures
• Consider that person’s wishes with respect to supportive measures
• Inform the complainant that supportive measures are available with or without the filing of a formal complaint
• Explain to the complainant the process of filing a formal complaint

Supportive Measures

• Non-disciplinary, non-punitive individualized services offered without fee or charge to the complainant or the respondent, that are designed to restore or preserve equal access to the school’s education program or activity without unreasonably burdening the other party.
• These services include measures designed to protect the safety of all parties or the school’s educational environment or deter sexual harassment.
• Supportive measures may include, but are not limited to: counseling; extensions of deadlines or other course-related adjustments; modifications of work or class schedules; campus escort services; mutual restrictions on contact between the parties; changes in work or housing locations; leaves of absences; increased security and monitoring of certain areas of campus; and other similar measures.
• Schools must keep supportive measures provided to the parties confidential, to the extent possible.
• Title IX Coordinator responsible for implementing supportive measures.

Take prompt and effective action to end any sex discrimination.

• Treat complainant and respondent equitably at every stage
• Notify complainant of grievance procedures and, if complaint is made, notify respondent of the procedures and all parties of informal resolution process, if any
• Offer and coordinate supportive measures to parties
• If complaint made, initiate the complaint process or informal resolution
• In absence of complaint, determine whether to initiate complaint
• Take other appropriate, prompt, and effective steps to ensure that sex discrimination does not continue or recur in addition to providing remedies to an individual complainant

Formal Complaints

• A formal complaint is an official document alleging sexual harassment [sex discrimination].
• District must investigate and ultimately provide resolution for a formal complaint.
• It can be filed by a student, the student’s parent or legal guardian, or the Title IX coordinator.
• In cases where a complainant does not file a formal complaint, the Title IX Coordinator may initiate grievance procedures where appropriate.

Written Grievance Procedures – generally

• The School’s written grievance procedures should align with OCR’s current regulations.
• The procedures themselves must not discriminate on the basis of sex, and any additional provisions a school adds to those required by the regulations must apply equally to complainants and respondents.
• TERMINOLOGY NOTE: the regulations refer to alleged victims as complainants and alleged perpetrators as respondents, whether or not the formal grievance process has been initiated.

2023 Proposed Requirements for Grievance Procedures:

• Equitable treatment of complainants and respondents
• Title IX Coordinator, investigators, and decisionmakers must not have conflicts of interest or bias.
• Decisionmaker MAY be the same person as the Title IX Coordinator or investigator.
• A presumption that the respondent is not responsible until a determination is made at the conclusion of the grievance process
• Reasonably prompt timeframes for all major stages
• Reasonable steps to protect privacy of parties and witnesses

​

2023 Proposed Requirements, continued:

• Notice of allegations to all parties.
• Dismissals permitted in certain circumstances, but not required
• Consolidation permitted for complaints arising from same facts or circumstances
• Investigation requirements
• Burden on District to gather sufficient evidence
• Equal opportunity for all parties to present relevant fact witnesses and other evidence
• Determination by decisionmaker of what evidence is relevant and not otherwise impermissible
• A description to parties of relevant and not otherwise inadmissible evidence as well as the opportunity to respond

2023 Proposed Requirements, continued:

• A process that enables the decisionmaker to assess the credibility of the parties and the witnesses when relevant and in dispute
• Clear processes for the determination of whether sex discrimination occurred including:
• Using preponderance of the evidence standard of proof unless clear and convincing standard used in all other comparable proceedings
• Notifying parties of outcome and opportunity to appeal
• When there is a determination that sex discrimination occurred, Title IX Coordinator provides and implements remedies for complainant and others whose access limited or denied and takes other appropriate, prompt, and effective steps to ensure that sex discrimination does not continue or recur

2023 Proposed Requirements, continued:

• The grievance process is completed before imposing sanctions
• District prohibited from disciplining a party, witness, or other participant for making a false statement or for engaging in consensual sexual conduct based solely on the determination of whether sex discrimination occurred
• Parties may choose to participate in informal resolution process, if one is provided by the District.
• Grievance procedures must describe the range of possible supportive measures and a range or list of disciplinary sanctions and remedies for sex-based harassment complaints.
• District may add provisions so long as they apply equally to the parties

Written grievance procedures – requirements

• MUST TREAT BOTH COMPLAINANTS AND RESPONDENTS EQUITABLY
• By providing remedies to a complainant if respondent is found responsible and by following the prescribed grievance process when imposing discipline upon a respondent.
• The remedies must be designed to restore or preserve equal access to the school’s education program or activity.
• Unlike the supportive measures put in place pending the grievance process, remedies can be punitive or disciplinary against the respondent.

Written grievance procedures – requirements

• MUST REQUIRE OBJECTIVE EVALUATION OF EVIDENCE
• The school’s grievance process must ensure an objective evaluation of all relevant evidence – including inculpatory and exculpatory evidence
• Credibility determinations cannot be made on the basis of a person’s status as complainant, respondent, or witness.
• STAFF MUST BE TRAINED AND HAVE NO BIAS OR CONFLICT OF INTEREST
• Individuals involved in the process – such as the Title IX Coordinator, Investigators, Decision-Makers, or Facilitators or formal or informal resolution efforts – must not have any bias or conflict of interest.
• These individuals also must be trained. Training materials cannot rely on sex stereotypes and must promote impartial investigations and adjudications and must be posted on the District’s website and available for public inspection.

​

Attributes Required of all Title IX Personnel

• IMPARTIAL
• Free from bias
• Treating all parties equally, fairly, and justly
• Non-discriminatory
• Basing decisions on objective criteria, not bias or prejudice
• FREE OF BIAS
• Prejudice in favor or against one thing, person, or group as compared with another

• HAVE NO CONFLICT OF INTEREST
• Conflict between your private interests and your official responsibilities
• Having official responsibilities that involve things that might be helpful or harmful to you
• BOTTOM LINE: Start with a clean slate; Keep an open mind; Don’t rely on sex stereotypes; and Seek the truth.

Written grievance procedures – requirements

• MUST BEGIN WITH A PRESUMPTION OF INNOCENCE
• Under the grievance procedures, the Respondent must be presumed to be not responsible so that any finding of responsibility only comes at the conclusion of a grievance process.
• MUST INCLUDE REASONABLY PROMPT TIME FRAMES
• The grievance process must include reasonably prompt time frames for resolving complaints of sexual harassment.
• Temporary delays are permitted only for good cause. Good cause can include law enforcement activities, the absence of a party or witness, the absence of the party’s advisor of choice, or the need to provide language assistance or accommodations of disabilities.

Written grievance procedures – requirements

• DESCRIPTION OF RANGE OF OUTCOMES
• The grievance process must describe or list the range of possible remedies and disciplinary sanctions that could occur following a finding of responsibility.
• STANDARD OF EVIDENCE
• The grievance process must state which standard of evidence the school will use to reach a determination regarding responsibility, to be used for all sexual harassment proceedings.
• Schools may choose between preponderance of the evidence standard and clear and convincing evidence standard.
• Whichever standard the school chooses, it must be the same in all formal complaints of sexual harassment whether the respondent is a student or employee.

Written grievance procedures – requirements

• MUST CONTAIN A RIGHT TO APPEAL
• The grievance procedures must include a right to appeal the result of the grievance process and include information about how to invoke the right to appeal.
• Schools must offer an appeal to every party on certain bases, and the school has the option to expand the bases on which appeal may be taken so long as they are applied equally to both parties.
• DESCRIPTION OF RANGE OF SUPPORTIVE MEASURES
• The grievance process must describe the range of supportive measures available to complainants and respondents.

Written grievance procedures – requirements

• USE OF PRIVILEGED INFORMATION
• The grievance process must explain that no information protected by a legal privilege (such as the attorney-client privilege or the doctor-patient privilege) can be used during an investigation unless the person holding the privilege has waived it.
• Neither a party nor the school is allowed to seek, permit questions about, or allow the introduction of evidence that is protected by a recognized privilege.
• Individuals may always opt to waive their own privilege if they wish to do so, but they cannot be required to do so.

Emergency Removals

• A District can remove a respondent from the school’s education program or activity on an emergency basis if the respondent poses an immediate threat to anyone’s physical health or safety. There are additional requirements for emergency removal proceedings that the school to consider when instituting this process – IDEA, 504, etc.
• If the respondent is an employee, the rules do not prevent the school from placing the respondent on administrative leave during the investigation.

Overarching Principles of the Process

• The grievance process itself cannot discriminate against a complainant or a respondent on the basis of sex.
• Practices must apply equally to both complainants and respondents – either of which can be male or female – and cannot discriminate as between men and women, notably with respect to credibility determinations. In other words, school representatives cannot believe or disbelieve a party simply because of that party’s sex.

Investigations

• Initiated by a formal complaint by an individual or the Title IX Coordinator.
• School must provide initial written notice to the parties
• When an investigation is initiated, the District must provide the parties with written notice of certain information
• The notice must include notice of the District’s grievance process.
• It must also include notice of whether there is an opportunity to participate in informal resolution. The school does not have to offer information resolution processes, but if it does, then that fact must be mentioned in the initial notice to the parties.

Investigations

Contents of Initial Written Notice, continued:

• The actual allegations (who, what, and where) and the facts which, if true, would constitute sexual harassment.
• A statement of the presumption of innocence.
• A statement that the parties are entitled to an advisor of their choice. The advisor can be an attorney, but does not have to be.
• A statement that the parties can request to inspect and review certain evidence.
• Information regarding the code of conduct and false statements.
• NOTE: THE WRITTEN NOTICE MUST BE PROVIDED BEFORE ANY SUBSTANTIVE INTERVIEW WITH THE RESPONDENT OCCURS.

Mandatory Dismissals

• While the District must send written, initial notice for and must investigate every formal complaint, the District must dismiss a complaint (or some of the allegations within it) if:
• The complaint does not describe conduct that meets the definition of sexual harassment;
• The complaint alleged sexual harassment that did not occur in the school education program or activity;
• The complaint alleges sexual harassment that did not occur within the United States;
• Note: the school may still have reason to investigate and address alleged misbehavior that violates its code of conduct in these complaints, but outside the scope of the Title IX grievance process.

​

Discretionary Dismissals

• A District may dismiss a complaint or portion of a complaint when:
• the Complainant notifies the Title IX Coordinator in writing that the Complainant wishes to withdraw the formal complaint or some of its allegations;
• the Respondent is no longer enrolled or employed by the school; or
• if specific circumstances prevent the school from gathering evidence sufficient to reach a determination about the allegations.
• Note: the District can choose to continue the investigation if it believes a discretionary dismissal is not appropriate.

Dismissal Procedures

• Whenever the District dismisses a formal complaint, or any allegations in it, the District must promptly send written notice of the dismissal and the reasons to all parties.
• Both parties have the right to appeal the dismissal decision.

Gathering Evidence

• As an investigation proceeds, the school must give both parties specific, equal rights and protections – which apply whether the Complainant filed the complaint or the Title IX Coordinator began the investigation by signing the complaint.
• When the Title IX Coordinator signs the complaint, the District does not treat him or her as the complainant or a party to the grievance process. The Coordinator must always remain impartial to the Complainant and the Respondent.
• The school is not allowed to access a party’s personal records if they are maintained by a physician, psychiatrist, psychologist, or other professional for the purpose of treatment to the party, without the party’s written consent.

Gathering Evidence

• School has ongoing duty to allow the parties to prepare and must provide an equal opportunity for the parties to have witnesses and evidence, including expert witnesses, as well as inculpatory and exculpatory evidence.
• The school cannot restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.
• The school must present the same opportunities to parties to have others present during the grievance proceedings, including access to the party’s advisor of choice for any meetings or hearings.

Gathering Evidence

• The school must provide written notice of the date, time, location, participants, and purpose of all hearings, interviews, or other meetings, with sufficient time for the party to prepare.
• The school must provide equal opportunity for the parties and their advisors to inspect and review the evidence obtained by the school as a part of its investigation, if the information is directly related to the allegations raised in the formal complaint.
• The school must give a party reasonable opportunity to respond to the evidence after the school has provided it.

Investigative Reports

• After gathering evidence, the investigator prepares a preliminary investigative report on the allegations in the formal complaint. The report should fairly summarize the evidence the investigator has gathered about the alleged incident.
• The investigator must give the parties 10 days to respond to the evidence in writing. If a response is submitted, the investigator must consider that response before finalizing the investigative report.
• The investigative report may then be finalized and provided to the parties.
• That report must be circulated to the parties at least another 10 days before any determination of responsibility, or 10 days before a hearing, if a hearing happens

Hearings

• For K-12, the school has the option, but never an obligation, to hold a live hearing where the parties ask questions and give evidence to the decision-maker in the case. K-12 schools may choose, but are not required, to provide live cross examination or other hearing procedures outlined in the Title IX rules for post-secondary institutions.
• Even without a live hearing, however, the school must
• give the parties equal opportunity to submit relevant, written questions to witnesses and the other party
• Provide the answers to each party; and
• Provide limited opportunity for follow up – all before the decision maker reaches a determination.
• Decision makers review the questions to insure they are relevant before submitting to the other party and explain any decision to exclude a question.
• Questions and evidence about a complainant’s prior sexual history are NOT relevant, with two limited exceptions:
• Where admitted to prove someone other than respondent committed the sexual harassment; or
• When it relates to sexual behavior between complainant and respondent and is offered to prove consent.

Decision Making: The Decision-Maker

• A school has wide latitude to use
• a single individual,
• a panel of individuals, or
• or multiple individuals who each adjudicate specific portions of the grievance process.
• Schools may use existing personnel, hire new personnel, or delegate functions of a decision maker to an outside contractor, consortium, regional center, or other group of schools, but the District has the continued obligation to ensure compliance.
• Any individual designated as a decision-maker may not have a conflict of interest or bias.

​

Decision Making: Objective and Unbiased

• The school’s decision-maker must objectively evaluate the relevant evidence and reach conclusions about whether the Respondent is responsible for the alleged sexual harassment.
• The decision-maker should use independent judgment. Consequently, the decision-maker cannot be the same person who conducted the investigation and cannot be the Title IX Coordinator.
• The decision-maker must be free from conflicts of interest or bias against complainants or respondents, and must receive special training on how to decide what evidence is relevant.
• The decision-maker weighs the relevant information and decide whether it meets the school’s standard of evidence for sexual harassment allegations.

Decision Making: Written Determination

After the evidence has been weighed, the decision-maker’s determination must be written, in a single document, and must include

• The portion of the school’s policies that was violated
• A description of the procedural steps that were taken to reach that conclusion
• Findings of Fact
• Conclusions drawn after applying facts to the applicable school policy
• Statement and rationale for the ultimate determination of responsibility for each allegation
• Any disciplinary sanctions the school will impose on respondent and state whether the school will provide remedies to the complainant
• A statement and rationale for any remedies for complainant addressing how the remedies will restore or preserve equal access
• A statement of the school’s procedures that give the parties a right to appeal the initial determination regarding responsibility and the permissible bases for appeal.

Decision Making: After the Decision

• The decision-maker must send the written determination to the parties simultaneously, along with information on how to appeal the determination.
• A school has discretion to set deadlines for when an appeal must be filed, bearing in mind the obligation to conclude the entire grievance process and bring resolution to the situation for both parties within a reasonably prompt time frame.
• The Title IX Coordinator is responsible for implementing any remedies contained in the written decision.

After the Decision: Finality and Appeals

• The decision is final if either (1) neither party appeals in the time allotted for appeals; or (2) at the conclusion of the appeal.
• Appeals:
• The School must offer both parties the opportunity to appeal the determination.
• Appeals can be taken from two different points in the process:
• After dismissal before the grievance process, either mandatory or discretionary; and
• At the end of the grievance process and issuance of the decision-maker’s written determination.

Grounds for Appeal

The final regulations set out several bases for appeal. A school can add additional bases, so long as they apply equally to both parties. The bases for appeal in the regulations are:

• A procedural irregularity affected the outcome of the matter;
• New evidence has been discovered that was not reasonably available at the time of the determination of responsibility or dismissal; or
• There was a conflict of interest on behalf of the Title IX Coordinator, an investigator, or the decision-maker, and that conflict affected the outcome.

​

Appellate Process

• The school must notify both parties in writing and implement appeal procedures equally.
• Both parties must have an opportunity to submit a written statement supporting or challenging the outcome.
• The person who decides the appeal cannot be the same person who reached the determination regarding responsibility, or the investigator, or the Title IX Coordinator.
• After considering the parties’ written statements, the decision-maker on appeal has to issue a written decision and send it to the parties simultaneously.
• The school’s determination about whether the respondent is responsible for the sexual harassment allegations becomes final after appeal.

Informal Resolution

• The school can offer informal resolution in appropriate cases
• EXCEPTION: never appropriate when Respondent is a school employee accused of sexually harassing a student
• Informal resolution can be attempted only if both parties voluntarily agree to participate.
• A school can never force, intimidate, threaten or coerce any party to participate in an informal resolution process.
• If information resolution proceeds, the school must provide a facilitator who is free from conflicts of interest or bias and who has received special training.
• The school must still provide the parties with written notice of the allegations, notice of their rights, information about whether an informal process is confidential, and information about withdrawing from the process at any time before an agreement is reached.

Record Keeping

The regulations impose upon the school a duty to maintain records regarding the grievance process which extends for 7 years and includes several categories of records:

• Records of a school’s investigation – including any determination of responsibility, remedies, and disciplinary action.
• Records of any appeal and the materials associated with the appeal.
• Records of any informal resolution process.
• All materials used to train Title IX Coordinators, Investigators, Decision-Makers, and any person who facilitates an informal resolution. These materials must also be posted on the school’s website or made available for public inspection if there is no website.
• Records of supportive measures taken in response to a report of a complaint of sexual harassment.
• Records connected with claims that are dismissed voluntarily or otherwise.

Retaliation Prohibited

• No school or person is allowed to retaliate against a person for exercising rights under Title IX.
• Any person retaliated against may file a complaint with the school and the school must have procedures in place for the prompt and equitable resolution of such complaints.
• The school should keep the identities of parties and witnesses confidential, unless disclosure of someone’s identity is required under other laws or is necessary in order to conduct the grievance process.

Retaliation Prohibited – Code of Conduct

• OCR believes that charging a person (potential complainant) with code of conduct violations for the purpose of discouraging that person from pursuing a sexual harassment report or formal complaint, or exercising any other Title IX rights is considered retaliation.
• Take extra care if a code of conduct charge is for a violation unrelated to sexual harassment but arises from the same set of facts as a sexual harassment allegation, that may be prohibited retaliation.

Not Retaliation

• The final regulations state that it is NOT retaliation for a school to punish someone for making a bad-faith, materially false statement during a Title IX grievance process.
• NOTE: the School cannot draw a bad faith conclusion solely based on the outcome of the case.
• The anti-retaliation provision of the final regulations also expressly states that engaging in protected speech under the First Amendment to the U.S. Constitution never constitutes retaliation.

Title IX and Free Speech

• OCR can never require a school to violate the First Amendment.
• Title IX is not intended to regulate the content of anyone’s speech.
• OCR guidance recognizes that the offensiveness of a particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a sexually hostile environment under Title IX.
• When OCR investigates and school for a possible Title IX violation, OCR will never view a school’s attempt to suppress free speech as an appropriate response to sexual harassment.

Title IX Formal Complaint Procedures

• FFH(Legal) requires the Superintendent to develop a Title IX formal complaint process.
• Definitions – along the lines as previously discussed. Some examples:
• Days = district business days
• Education program or activity = locations, events, or circumstance over which the District exercises substantial control over both the respondent and the context in which sexual harassment occurs
• Preponderance of the evidence = more likely than not to be true

​

Formal Complaint Procedures

• District’s Response to Allegations of Sexual Harassment
• Title IX Coordinator will respond promptly and equitably to any verbal or written report of disclosure of alleged sexual harassment received from any source, including personal observation, that provides a District employee notice of the alleged conduct. The Coordinator will address anonymous reports if there is an identifiable party.
• SHIG Form 1 = Report Intake Form
• When the Coordinator determines that an allegation of sex-based harassment in a District program or activity, if proved, would meet the definition of sexual harassment under Title IX, the Coordinator will follow the procedures set forth in the regulation. For other allegations, the Coordinator will follow other appropriate District’s policies and procedures, i.e., FFH, FFI, DH, etc.

Formal Complaint Procedures

• INITIAL RESPONSE – Upon receipt of a report alleging sexual harassment, the Coordinator will promptly contact the complainant, when identified, to offer supportive measures and interact with the complainant to:
• Provide information regarding supportive measures
• Discuss the availability of supportive measures
• Consider the complainant’s wishes regarding supportive measures
• Explain to the complainant the process for filing a formal Title IX complaint
• Provide each complainant with a copy of the District’s Title IX Formal complaint process.

Formal Complaint Procedures

​

• EQUITABLE TREATMENT

​

The District’s treatment of complainants, respondents, witnesses, and any other person involved in a formal complaint process shall not discriminate on the basis of sex. All parties involved will be treated fairly, with dignity, respect, and sensitivity and without bias, prejudice, or reliance on stereotypes.

Supportive Measures

• Title IX Coordinator:
• Responsible for effective implementation
• Point of Contact for questions
• Must be offered to complainant, and as appropriate, to respondent.
• Available with or without a formal complaint
• Complainant not required to show proof of allegations

• Complainant not required to accept
• Individualized, non-punitive, offered without cost, and shall not unreasonably burden any party.
• Designed to protect safety of all parties or the District’s education program or activity or to deter sexual harassment
• SHIG Form 7 = Supportive Measures Documentation

Supportive Measures – examples:

• Counseling about inappropriate behavior and educational conversations
• Explaining to respondent in detail the district’s anti-sexual harassment policy and expectations of appropriate conduct
• Temporarily sending a student to the principal’s office
• Changing seating assignments or class assignments
• Providing other counseling
• Extending deadlines or other course-related adjustments including retaking exams or completing make up work

• Implementing mutual or unilateral restrictions on contact between parties
• Identifying specific employees as regular points of contact for each party
• Modifying class or activity schedules
• Escorting parties when on campus
• Changing campus assignments
• Increasing security or monitoring of certain areas of the campus
• Other similar measures designed to help a student stay in school and on track academically, protect the safety of a student, or deter sexual harassment

Emergency Removals

• District may remove a student respondent from the District’s education program or activity when the District determines, based on an individualized safety and risk analysis, that removal is justified due to an immediate threat to physical health or safety of any student or other individual, including either of the parties in a formal complaint, arising from the allegations of sexual harassment.
• District shall provide notice of removal to respondent.
• Removal may continue for duration of an ongoing threat.
• Removal must comply with all due process requirements under law and District policy, including IDEA and Section 504.
• Immediately following the removal, District must provide respondent with opportunity to appeal. (Refer to FO series of policies)
• Does not restrict District’s right to place an employee on administrative leave pending an investigation.

Fair Process Requirements

• NO BIAS OR CONFLICT OF INTEREST – All Title IX personnel must serve impartially and free from conflicts of interest against complainants and respondents.
• In this context, bias includes, but is not limited to, bias against an individual’s sex, race, ethnicity, sexual orientation, gender identity, disability, immigration status, or financial ability.

• PRESUMPTION OF INNOCENCE – all District actions must presume the respondent is not responsible for the alleged conduct until after a final determination in a formal complaint process.
• Respondent may face disciplinary sanctions only after a fair process determines responsibility.

FORMAL COMPLAINTS

• Complainant may file a formal complaint with Title IX Coordinator.
• TASB has created a detailed sample form for this purpose. SHIG Form 3 = Formal Complaint Shell Form.
• If Coordinator determines that the law requires the District to initiate an investigation under the formal complaint process, the Coordinator may, without complainant’s consent, sign a written complaint to initiate the process. SHIG Form 4 = Coordinator’s Initiation of Formal Complaint.
• Complainant is not required to participate in a complaint signed by the Coordinator but retains all the rights of a complainant in the process.
• Copies of any documents that support the complaint should be attached.
• The Coordinator will coordinate the assignment of duties to ensure that all obligations under Title IX are completed in a timely manner.

FORMAL COMPLAINTS

• TIME FRAME – absent good cause for delay, the formal complaint process from receipt of formal complaint to determination of responsibility should be completed within 60* days. [*can vary from District to District]
• CALCULATION AND MODIFICATION
• Day of filing = Day 0 for calculation of deadlines.
• Strict compliance with time frame expected unless modified by parties’ written mutual consent or extended by District for good cause.
• If extension granted to one party, same extension must be grated to the other party.
• If District temporarily delays or extends, Coordinator shall provide written explanation of the good cause for same to all parties.
• Permissible reasons: absence of party, party’s advisor, or witness; concurrent law enforcement activity; need for language assistance or accommodation of disabilities; other good cause determined by Coordinator.

FORMAL COMPLAINTS

• NOTICE OF ALLEGATIONS -- Upon receipt of a formal complaint, the Coordinator will provide written notice to the complainant [SHIG Form 5] and respondent [SHIG Form 6] about the allegations of sexual harassment and allow sufficient time for the parties to prepare a response before any initial interview with the assigned investigator.
• NOTICE MUST CONTAIN
• Allegations of the potential sexual harassment, as defined by law, including sufficient details known at the time such as identity of parties, alleged conduct, and date(s) and location(s) of alleged incident(s);
• Statement that the District must by law, presume the respondent is not responsible and that a determination of responsibility will be made at the conclusion of the process;
• Notice that each party may choose an advisor of their choice who may be, but is not required to be, an attorney;
• The right of each party to examine and review evidence;
• The standard of evidence that will be used;
• Notice of the Title IX formal complaint process including procedures for informal resolution and appeal of final determination; and
• Any provision of District code that prohibits knowingly making false statements or knowingly submitting false information during the formal complaint process.
• Coordinator may attach copy of Policy FFH to the notice of allegations.

REASONS FOR DISMISSAL

MANDATORY DISMISSAL

Complaint must be dismissed when the allegations, if proved,

• Do not meet the definition of sexual harassment;
• Did not occur against a person in the United States; or
• Did not occur in the District’s education program or activity.

​

DISCRETIONARY DISMISSAL

Complaint may be dismissed if:

• The complainant notifies the Coordinator in writing that the complainant wishes to withdraw the complaint or any allegation;
• The respondent is no longer enrolled or employed;
• If specific circumstances prevent the District from gathering evidence sufficient to reach a determination; or
• The complainant no longer has any involvement with the District.

PROCESS FOR DISMISSAL

• NOTICE: Upon dismissal of a formal complaint or an allegation therein, the Coordinator must promptly provide written notice to both parties. [SHIG Form 2] Dismissal of the formal Title IX complaint does not preclude action under other provisions of the code of conduct.
• APPEAL: Complainant may appeal the written dismissal of formal complaint or allegations within a formal complaint on the following bases:
• Procedural irregularity that affected the outcome;
• New evidence not reasonably available at the time of the determination and that could affect the outcome; or
• The Title IX Coordinator, investigator, or decision maker had an impermissible conflict of interest or bias.

EVIDENTIARY ISSUES

• STANDARD OF EVIDENCE = Preponderance of the Evidence
• OBJECTIVITY – When evaluating relevant evidence, whether the evidence is inculpatory (serves to show responsibility) or exculpatory (serves to clear of responsibility), an investigator and a decision-maker must remain objective. Credibility determinations may not be based on an individual’s status as complainant, respondent, or witness.
• PRIVILEGED INFORMATION – If a party seeks or uses information protected by a legally recognized privilege, the party must provide written documentation indicating that the person holding the privilege has waived the privilege and consents to the use for the purpose of the formal complaint process.

INVESTIGATIONS

• Investigators: The Title IX Coordinator may serve as investigator, appoint a District employee as investigator, or, in consultation with the Superintendent, appoint an external investigator, to investigate the allegations in a formal complaint.
• Burden: The District, not the parties, has the burden of proof and the burden to gather information sufficient to reach a determination.
• Time Frame: Absent good cause, the investigation should be completed within 30* days from the date the formal complaint was filed. [*may vary in other Districts]; however, Investigator may take additional days in accordance with law, board policy, or district procedures.

INVESTIGATIONS

• GATHERING EVIDENCE: Investigator meets promptly with each party to conduct an initial interviews, gather information, and collect evidence. Parties may submit evidence, testimony, witnesses, or other information they wish the investigator to consider. Parties may also present fact or expert witness testimony in the form of written statements.
• DEADLINES/RESTRICTIONS: Must apply equally to both parties.
• NOTICE: Investigator must provide to any party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of any investigative interview or other meetings, with sufficient time for the party to prepare.
• ADVISORS: Each party may be accompanied by an advisor of the party’s choice during the interview with the investigator or other meetings during the formal complaint process.

INVESTIGATIONS

• CONFIDENTIALITY: District may require the parent/guardian of a minor student to sign a FERPA release allowing District to release student information to the designated advisor. District shall inform advisors that confidential information received during the formal complaint process, including evidence received for inspection and review and the investigation report, may be used only for purposes of the Title IX formal complaint process and may not be further disclosed or disseminated. Any restriction or requirement regarding an advisor must apply equally to all parties.
• INSPECTION OF EVIDENCE: Investigator will, prior to the conclusion of the investigation, make available to all parties the for inspection and review the evidence submitted by the parties or obtained as a part of the investigation that is directed related to the allegations made in the formal complaint. Includes evidence the decision-maker may choose not to rely upon when reaching a determination of responsibility as well as inculpatory and exculpatory evidence. Before completing the investigation report, the investigator will send to each party and the party’s advisor, if any, the evidence subject to review and inspection in an electronic format or hard copy. Each party must be allowed 10 days from receipt of same to inspect and review and submit a written response that the investigator will consider when completing the final investigation report.

Investigations – Best Practices

• Prepare:
• Read what has been provided; Make notes of questions you need answered
• Know the official definition of sexual harassment and keep it the center of your investigation
• Make a list of witnesses and documents you need – update and adapt as you go
• Make a list of questions before each interview – update and adapt as you go.
• When Conducting Interviews:
• Explain ground rules at the outset; hold all parties and advisors to the same standards.
• Maintain control of each interview.
• Ultimate goal: finding the truth and solving the disputed issues of fact
• Remember the investigator is not the decision-maker, only a seeker of facts
• Finish interview with an open ended question: Is there anything I haven’t asked or you haven’t already mentioned that you think I should know about the situation?

INVESTIGATION REPORT

The investigator will prepare an investigation report [SHIG Form 8] that fairly summarizes all relevant evidence and may include the following content:

• Identification of the allegations potentially constituting sexual harassment;
• Procedural steps taken by Title IX personnel from the receipt of the formal complaint through the conclusion of the investigation report;
• Responses of each party to the allegations in the formal complaint;
• Evidence obtained by the District;
• Relevant evidence considered by the investigator;
• The parties’ responses to the evidence after review and inspection;
• Findings of fact; and
• Identification of any District policies or codes of conduct implicated by the facts, including referrals of FFH for investigations for reports other than Title IX, FFI, or other District processes initiated as a result of the investigation.

The investigator will simultaneously provide the investigation report to both parties and the Title IX Coordinator who immediately will assign a decision-maker and provide the decision-maker with a copy of the report.

Determination of Responsibility

• A decision-maker designated by the Title IX Coordinator will make an independent determination regarding a respondent’s responsibility for alleged sexual harassment. The decision-maker cannot be the Title IX Coordinator nor the investigator who investigated the complaint at issue.
• Live hearing not required in K-12 setting.
• The determination of responsibility may not be issued earlier that 10 days from the date the parties received the final investigation report from the investigator.
• After the parties receive the final investigation report and before a determination regarding responsibility, the decision-maker will notify each party of the opportunity to submit written, relevant questions that a party wants asked of any party or witness noted in the investigation report. The decision-maker shall ensure that the questioning is relevant, respectful, and non-abusive. The decision-maker may set a reasonable and equitable deadline for providing answers in response. In consultation with the Title IX Coordinator, the decision-maker may extend the time line for good cause. A party or witness is not required to respond to any questions posed by the other party. As determined by the decision-maker, the parties may reasonably exchange additional, limited follow up questions.

Determination of Responsibility

• Prior Sexual Behavior – In reaching a final determination, the decision-maker will not consider relevant any questions and evidence about the complainant’s prior sexual predisposition or prior sexual behavior unless: (1) the questions and evidence are offered to prove that someone other than respondent committed the conduct alleged; or (2) if they concern specific incidents of complainant’s prior sexual behavior with respondent and are offered to prove consent.
• The decision-maker must explain to the party proposing the questions any decision to exclude a question as not relevant.

Determination of Responsibility

• WRITTEN DETERMINATION – the decision-maker will issue a determination regarding responsibility for the alleged conduct in a reasonably prompt manner after the date all questions, answers, and supporting documentation were requested to be submitted to the decision-maker. The written determination [SHIG Form 9] will include:
• Identification of the allegations potentially constituting sexual harassment;
• Description of procedural steps from receipt of complaint through determination;
• Findings of fact supporting the determination;
• Conclusions regarding the application of the District’s applicable code of conduct or other policy to the facts;
• Statement of rationale for, the result as to each allegation, including a determination of responsibility, any Title IX disciplinary sanctions to be imposed, and whether remedies designed to restore or preserve equal access to the District’s education program or activity will be provided to complainant; and
• Procedures and permissible bases for appeal.

​

Appeals

• Either party may appeal the written determination regarding responsibility or a dismissal of a formal complaint or any allegations therein on the following bases:
• Procedural irregularity that affected the outcome of the matter;
• New evidence not reasonably available at the time of the decision that could affect the outcome of the matter;
• The Title IX Coordinator, investigator, or decision-maker 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.
• Title IX does not require the District to accept appeals based on any other reasons.

Appeals

• To initiate an appeal, a party must file a written request for appeal with the Title IX Coordinator within 5 days of the party’s receipt of the final determination.
• The Coordinator will review the request and assign an appropriate appellate decision-maker. If the reason for appealing is not mandatory, the District may dismiss the appeal.
• If the appeal is not dismissed, the Coordinator will designate an appellate decision-maker to proceed.
• The decision-maker on appeal may not be the initial decision-maker in the case, the investigator, or the Title IX Coordinator.

Appeals – TASB Model

• Title IX coordinator will notify the non-appealing party in writing that an appeal has been filed.
• Appeal procedures must be applied equally for each party.
• Both parties will be given a reasonable, equal opportunity to submit a written statement in support of or challenging the dismissal or determination of responsibility.
• Appeals of Dismissal – The appellate decision-maker will review and issue a written decision explaining why the appeal is denied or granted. [SHIG Form 10 = Dismissal of Appeal] The written decision will provide the rationale for the District’s response and either instruct the Title IX Coordinator to resume the formal complaint process or inform the appealing party of other options. Copy of the decision shall be provided to both parties.

Appeals

• Appeals of Final Determinations of Responsibility – if an appeal is filed, the determination does not become final, and the District may not proceed with administering Title IX disciplinary sanctions or remedies until the date the District provides both parties with the written result of the appeal.
• If an appeal is not filed, the determination of responsibility becomes final on the date on which appeal is no longer considered timely.
• For an appeal to be fully effective, the District must wait to act on the determination and maintain the status quo between the parties through supportive measures until the determination is final.
• The written response of the appellate decision-maker will describe the result of the appeal and the rationale for the result. A copy will be provided simultaneously to both parties.
• Once the appellate decision-maker issues a written decision, the District will begin implementing the disciplinary sanctions or remedies.

Remedies

• If the formal complaint process results in a finding that respondent is responsible for the alleged sexual harassment, the District must provide remedies to the complainant that are designed to restore or preserve equal access to the District’s education program or activity.
• The Title IX Coordinator is responsible for implementing sanctions or remedies.
• In addition to individualized services previously described as supportive measures, remedies, which may be disciplinary and punitive for respondent, may include the following:
• Suspension
• Expulsion
• Any disciplinary measure provided in the code of conduct
• Other as determined by the District’s policy

Informal Resolution

• If a formal complaint has been filed (other than a complaint alleging sexual harassment of a student by an employee), and before reaching a determination regarding responsibility, the Title IX Coordinator may offer, but may not require, a party to participate in a voluntary, informal resolution process, such as mediation.
• Either party also may request information resolution in writing to the Coordinator who will promptly notify the other party of the request. The other party is not required to participate. If a party declines or at any time withdraws from the informal resolution process, the Coordinator will notify the other party that the process has terminated.
• Before facilitating or designating a facilitator for an informal resolution process, the Coordinator will:
• Provide both parties written notice that contains at least the following information:
• The allegations;
• Requirements of information resolution including the circumstances under which it precludes the parties from resuming formal complaint process arising from the same allegations; provided, however, that at any time before a final agreement is reached, either party may withdraw from the informal resolution process and resume the formal complaint process; and
• Any consequences resulting from participating in the informal resolution process, including the records that will be maintained and could be shared.
• Obtain the parties’ voluntary, written consent to the informal resolution process.

Miscellaneous

• Training – District will provide all Title IX personnel with appropriate training for their responsibilities including the definition of sexual harassment, the scope of the District’s education program or activity; as applicable to assigned duties: how to conduct and investigation; the formal complaint process; how to serve impartially and avoid prejudgment, conflicts of interest, and bias.
• Records Retention -- at least 7 years and accord with District record retention schedule
• Confidentiality – Keep information confidential as required by law except as necessary to provide supportive measures, to conduct proceedings, when disclosure is required by law, when permitted by FERPA. However, the District may not restrict the ability of the parties to discuss the allegations under investigation or to gather and present relevant evidence. A complainant’s identity, if known, must be disclosed to the respondent once a formal complaint is filed by complainant or signed by the Title IX Coordinator.
• Required Reporting – Personnel must remain mindful of when state law requires reporting to law enforcement, CPS, SBEC, or another entity, and must do so in compliance with law or board policy.

What additional resources are available?

• From TASB Legal Services eSource:
• TASB has created sample administrative procedures for Title IX formal complaints.
• TASB also has created a Sample Title IX Formal Complaint.
• TASB model employee and student handbooks have been updated to ensure compliance.
• TASB has created a sample website posting to comply with the expanded notice and publication requirements.
• From OCR
• Q&A: https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/sex.html
• Technical Assistance: https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/crt-ta.html

​

Title IX Update �September 2023

Randall J. Cook

Hardy Cook & Hardy, P.C.

2080 Three Lakes Parkway

Tyler, Texas 75703

Phone: 903.561.8400

Email: randy@hardylaw.com

​

This presentation is provided for educational and general information purposes only and contains information intended to facilitate a general understanding of the law. This presentation is not an exhaustive treatment of the law on this subject and is not a substitute for the advice of an attorney. Consult an attorney to apply these legal principles to specific fact situations.