Title IX Compliance: a New Road Map

The Law Office of Lisa Gordon Stella, PLLC

Lisa Gordon Stella, Esq.

Legal Counseling, Mediation, Training and Workplace Investigations

Lisa@lgstellaLaw.com

(919)274-5719

www.lgstellalaw.com

July 29, 2020

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Objectives

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• How to use your” tools”
• Outline responsibilities of Title IX Team
• Coordinator
• Investigator
• Decisionmaker
• Appeals Panel
• Understand Title IX Process

Toolkit

• Title IX Notice: On your website; posted where other legal postings go
• Fact Sheet: Also on website and available in your front office
• Title IX Policy: In your handbooks and on your website
• Title IX Reporting and Grievance Policy: In your handbooks
• Investigator Questions: Resource
• Title IX Coordinator Role and Responsibilities: Resource
• Report: Resource
• Reporting Form: Resource
• Step by Step Guide: Resource

Roadmap

Training Requirement

• Title IX personnel (including faculty and staff and all mandatory reporters) must go through training on: 
• new definitions (e.g., of sexual harassment)
• the scope of the school’s education program or activity
• how to conduct an investigation and the grievance process (including hearings, appeals, and informal resolution processes, as applicable)
• how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias
• issues of relevance

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New training obligations are significant, and schools should take prompt action to implement the needed training infrastructure with the help of the Title IX Coordinator and others.

Overtones of New Regulations

• Focus on due process, including:
• Equitable treatment of accuser and accused.
• Eliminating immediate disciplinary actions taken against accused.
• Slowing down of handling of Title IX cases (e.g. time given to parties to review the case file, time given to review and ask questions regarding the investigative report, etc.).
• K-12 cases have tended to be handled faster than college/university cases due to school administrations' ability to more efficiently summon students.
• New notice requirements, for example, prevent front offices from simply calling a respondent down to talk about allegations, as they may have done before.

Scope of Responsibility

• NOTE: a school may address sexual harassment affecting its students or employees that falls outside Title IX’s jurisdiction in any manner the school chooses, including providing supportive measures or pursuing discipline
• This includes issues occurring outside narrow sexual harassment definition, education programs or activities, as well as issues occurring outside of the US.

• “Actual knowledge”
• of “sexual harassment” (as newly defined)
• that occurred within the school’s “education program or activity”
• includes locations, events, or circumstances over which the recipient exercised substantial control over the respondent and the context in which the sexual harassment occurred 
• Note that this is a broad definition. E.g. did conduct occur in location/context where school:
• Owned premises 
• Exercised oversight, supervision or discipline
• Funded, sponsored, promoted or endorsed event 
• against a “person in the United States.”

Actual Knowledge

• Actual knowledge means notice of sexual harassment or allegations of sexual harassment to a School’s Title IX Coordinator, or any official of the School who has authority to institute corrective measures on behalf of the recipient.
• For K-12 Schools, this means that ALL teachers and staff are required to report allegations of misconduct that they have witnessed or heard about to the Title IX Coordinator.

Once you have Knowledge, �Response Must Not Be Deliberately Indifferent

• Deliberately indifferent means in a way that is clearly unreasonable in light of the known circumstances.
• This "deliberate indifference" standard governs schools' responses to Title IX sexual harassment.
• To avoid being deemed "deliberately indifferent," schools' mandatory responses must:
• Provide supportive measures (discussed in the following slide).
• Include prompt contact by Title IX coordinator to complainant.
• Follow a grievance process before imposing discipline or sanctions.
• Not restrict constitutional rights.
• Observe meticulous record keeping requirements in order to protect against accusations of deliberate indifference.

Key Definitions

• Complainant means an individual who has reported being the victim of conduct that could constitute sexual harassment, or on whose behalf the Title IX Coordinator has filed a formal complaint.
• Note: parents may file complaints for their children.
• Respondent means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.
• Recipient means the institution charged with receiving and handling complaints, i.e., the school.
• Formal complaint means a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the school investigate the allegation of sexual harassment. 

New Sexual Harassment Definition

• Sexual Harassment means conduct on the basis of sex that falls under one or more of the following:
• 1) Quid pro quo harassment. An employee conditioning an educational aid, benefit, or service on an individual’s participation in unwelcome sexual conduct.
• 2) Unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity (i.e., hostile environment).
• Note: THIS IS NARROW
•  3) Sexual assault as defined in the Clery Act, or dating violence, domestic violence, or stalking as defined in the Violence Against Women Act.

Scope of Responsibility�If Conduct Not Covered By Title IX

• The narrower definition of sexual harassment means that many K-12 cases may not fall under the new Title IX definition.
• Schools will need to act within their own codes of conduct or other policies to respond to cases and ensure they do not worsen to the levels described in the definition. 
• A school may address sexual harassment affecting its students or employees that falls outside Title IX’s jurisdiction in any manner the school chooses, including providing supportive measures or pursuing discipline.

Establishing a Title IX Team

• New regulations expressly prohibit the Single Investigator Model, where the investigator is also the decision-maker determining responsibility in Title IX cases.
• Thus, the decision-maker must be separate from the Title IX Coordinator or investigator.
• Rationale: one person cannot effectively serve as detective, prosecutor, judge, and jury.
• As such, schools should consider splitting roles for handling Title IX issues.

4-part Title IX team: Title IX Coordinator, Investigator, Decision-maker, and Appeals Board

Role and New Significance of Title IX Coordinator

• The employee designated by a recipient (the school) to coordinate its efforts to comply with Title IX responsibilities must be referred to as the “Title IX Coordinator” 
• The new regulations broadly expand a school’s obligation to ensure it not only has a Title IX Coordinator, but its educational community knows how to report to the coordinator.

Community Awareness of Title IX Coordinator: Notice in your Toolkit

• Schools must notify students, employees, applicants for admission and employment, parents or legal guardians of elementary and secondary school students, and all unions, of the name or title, office address, e-mail address, and telephone number of the Title IX Coordinator.
• Schools must prominently display on their websites the required contact information for the Title IX Coordinator.
• Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct), in person, by mail, by telephone, or by e-mail, using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report.
• Such a report may be made at any time, including during non-business hours, by using the telephone number or e-mail address, or by mail to the office address, listed for the Title IX Coordinator. 

Title IX Coordinator Responsibilities: Toolkit

• The Title IX Coordinator is responsible for monitoring the overall implementation of policies and compliance with Title IX in all areas covered by the regulations. 
• The major responsibility is the prevention of sexual harassment and discrimination. Other major monitoring duties include, but are not limited to, the following: 
• Admissions (Admissions and Recruitment) 
• Educational Programs and Activities 
• Financial Assistance, Employment Assistance, Health Services and Insurance,
• Employment (Employment Criteria, Recruitment, Compensation, Job Classification, Fringe Benefits, Marital or Parental Status, Advertising, Pre-employment Activities)�

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Title IX Coordinator Responsibilities

• Other areas of consideration include: 
• Participating in the development and implementation of the school’s sexual harassment policy. Be aware of new needs which may dictate changes or revisions in existing policies or practices. 
• Assisting faculty, counselors and administrators in complying with Title IX, and when a need arises, planning remedial actions. 
• Making your presence known in the community by disseminating civil rights information or by speaking at parent-teacher group meetings, social or professional organization meetings, and other community functions. 

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Title IX Coordinator Responsibilities

• Serving as a resource on Title IX/gender issues. 
• Monitoring and evaluating the school’s Title IX compliance efforts and making recommendations for any appropriate changes, including assisting/facilitating needed training for faculty and staff with respect to Title IX regulations.
• Providing updated information to the school on Title IX implementation and issues (e.g. impact of new regulations on school policy, and faculty/staff training). 
• Identifying and disseminating information about Title IX educational resources (organizations, individuals, print, internet, and audio-visual). 

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�Role of the Investigator: Toolkit

• In Title IX cases, the investigator is primarily tasked with facilitating interviews of the complainant, witness(es), and respondent, documenting and making the concerned parties aware of the status of investigation proceedings, and issuing an investigative report summarizing evidence before a determination regarding responsibility is made.
• The investigator will work closely with the Title IX coordinator to execute all duties outlined above in accordance with the Title IX grievance process.
• The investigator may be a faculty member, administrator, or other actor (such as a hired attorney) depending on the circumstances of the complaint. 

Role of the Decision-maker

• In Title IX cases, the decision-maker is primarily tasked with issuing a determination regarding responsibility after reviewing the evidence and findings of the investigation.
• The decision-maker may be a faculty member, administrator, or other actor (such as a school board member) depending on the circumstances of the complaint. 

Role of the Appeals Board

• The new regulations dictate that schools must offer both parties an appeal from a determination regarding responsibility, and from a school’s dismissal of a formal complaint or any allegations therein, on the following bases: 
1. procedural irregularity that affected the outcome of the matter; 
2. newly discovered evidence that could affect the outcome of the matter; and
3. Title IX personnel had a conflict of interest or bias that affected the outcome of the matter.
• NOTE: schools may also offer an appeal equally to both parties on additional bases 
• The job of the appeals board is to review the case and determination and issue a ruling at the conclusion of their review. 
• The appeals board may consist of faculty, administrators, or other actors (such as school board members) depending on the circumstances of the appeal. 

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Handling Title IX Complaints

• With the roles of the people involved in Title IX cases made clear, the following slides provide a full walkthrough of the required grievance process for formal complaints.
• In order to appropriately respond to Title IX complaints filed by or on behalf of a student or staff member, the following procedure is recommended in compliance with the new regulations:

Handling Title IX Complaints

Step 1: Assess the Situation - Immediately

• Review the written complaint and ask the complainant any clarifying questions you feel are necessary. If the complaint is verbal, ask the complainant to put it in writing. 
• If the complainant refuses to put his/her complaint in writing, prepare a written statement of what you were told. 
• Notify the Title IX Coordinator of the complaint or incident that was brought to your attention. Consult with the Title IX Coordinator and determine:
• Who should conduct the investigation 
• Initial investigation strategy
• Determine mandatory and discretionary reporting obligations (e.g. law enforcement if potential criminal activity).
• Note that allegations in any formal complaint must be investigated, and written notice of the allegations must be sent to both parties (complainants and respondents) upon receipt of a formal complaint.

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Step 2: Evaluate Appropriate Interim Measures – Immediately and Ongoing

• In consultation with the Title IX Coordinator, determine whether interim non-disciplinary, non-punitive measures should be put into place, before the investigation is completed, to protect or support the complainant and/or respondent. Interim measures should: 
• be considered on a case-by-case basis
• not unfairly penalize the complainant or the respondent
• consider both the complainant’s and the respondent’s rights to access educational programs and activities
• Appropriate “supportive measures” to consider include, but are not limited to, the following: 
• Physical separation of the complainant and the respondent
• Offer medical, counseling or other support services to the complainant
• No contact orders
• Support services for bringing forth and defending allegations of sexual harassment/ misconduct
• Any other measures requested by the complainant or respondent

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Step 3: Establish Timelines and Initiate an Investigation 

• Notify the complainant of the school policy that you will be following to process his/her complaint, as well as the timeline for completing the investigation. 
• Notify the respondent that a complaint has been filed against him/her along with additional information, as appropriate. 
• Send written notice to the parties (complainant and respondent) of any investigative interviews, meetings, or hearings. 
• Update the timeline, as needed, and keep the parties appraised of any delays or extensions. 
• Document any delays in the investigation. 
• Keep the Title IX Coordinator updated on the timelines and any delays. 

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Step 4: Interview Complainant, Witnesses, and Respondent

• The interview process is similar for all three parties, with several key differences. General guidelines for interviews are as follows:
• Carefully determine who should interview the complainant/witness(es)/respondent (you may wish to consider the age, gender, and existing comfort level of the parties in choosing from potential interviewers).
• Obtain all facts regarding the incident. 
• Ask broad, open-ended questions to narrow questions.
• Preserve evidence and documentation provided by the parties. This may include emails, screen shots, pictures, or physical evidence. 
• Ask for the names of other potential witnesses. 
• Allow the complainant/witness(es)/respondent to have an advisor (who may be an attorney) or support person present. 
• Maintain neutrality. 
• Listen calmly and respectfully.

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Step 4: Interview Complainant, Witnesses, and Respondent

• Use “Funneled” Questioning 
• Open-ended questions 
• Aim for all relevant evidence 
• Make sure the witness answers the questions fully 
• Ask, “Do you remember anything else?” 
• Summarize so witness can offer facts that were left out 
• Identify other ways to refresh witness’s memory 
• Encircle knowledge with wrap-up question 

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• What? Who? Where? When? 
• Don’t disrupt train of thought 
• Use active listening:
•  Don’t be wed to your outline 
•  Listen to subtle changes and clarify 
• Follow up on cues 
•  Watch for eye contact 
•  Gestures 
•  Body language 

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Step 4: Interview Complainant, Witnesses, and Respondent

• General guidelines for interviews, continued:
• Depending on the circumstances, you may want to request a written statement. If so, make sure it is signed and dated. 
• Do not promise confidentiality. However, every effort should be made to keep the identity of the involved parties confidential to avoid retaliation.
• Do not use, rely on, or seek disclosure of information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.

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Be Sure to Ask the Right Questions

• Use “Funneled” Questioning
• What? Who? Where? When?
• Don’t disrupt train of thought

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• Use active listening:
• ⎻  Don’t be wed to your outline
• ⎻  Listen to subtle changes and clarify
• Follow up on cues
• ⎻  Watch for eye contact
• ⎻  Gestures
• ⎻  Body language

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Step 4: Interview Complainant

For the COMPLAINANT:

• Exercise compassion and sensitivity.
• Allow the complainant to narrate without interruption; follow up with clarifying open-ended questions.
• Note: this strategy may need to be modified depending upon the complainant’s age and willingness to cooperate.
• Remind the complainant that the school prohibits retaliation and what to do if they feel retaliated against. 

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Step 4: Witnesses, and Respondent

• For the WITNESS(ES):
• Witnesses should not be interviewed together.
• Remind witness(es) that the School prohibits retaliation and what to do if he/she feels retaliated against. 
• For the RESPONDENT:
• Caution the respondent against retaliation. 
• Ensure that you communicate to the respondent that there is a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.

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Step 4: Interview Complainant, Witnesses, and Respondent

Step 5: Prepare a Summary or Report

• Note first that the school must send the parties, and their advisors, all evidence directly related to the allegations, in electronic format or hard copy, with at least 10 days for the parties to inspect, review, and respond to the evidence.
• The school must send the parties, and their advisors, an investigative report that fairly summarizes relevant evidence, in electronic format or hard copy, with at least 10 days for the parties to respond.
• After the school has sent the investigative report to the parties and before reaching a determination regarding responsibility, the decision-maker(s) must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party. 
• Discuss your conclusions and next steps with the Title IX Coordinator. 

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Step 6: Issue Investigation Findings

• Relevance Determinations for Decision-maker
• Decision maker must determine whether questions are relevant and explain any decision to exclude. 
• Questions may only be excluded based on relevance. 
• Questions and evidence about complainant’s sexual predisposition or prior sexual behavior, unless to prove that someone other than respondent committed the conduct alleged or, if concerning specific incidents of complainant’s conduct with respondent, offered to prove consent, are not relevant. 
• The regulations do provide rape shield protections which generally prohibit lines of questioning that go into a complainant's past sexual behavior.
• But, when prior sexual history can be relevant is a point to consider (e.g., when involving respondent)
• Points to Consider: 
• Who will be the decision maker? 
• How will the decision maker be trained in relevance? 

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Step 6: Issue Investigation Findings

• Prepare an investigation findings letter for the complainant and respondent. 
• Detail the steps taken during your investigation and the evidence considered, including: 
• How the issue was brought to your attention and what actions you took
• Description of who you interviewed and what they told you
• Description of the documents you reviewed 
• Assessment of the credibility of each witness

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Step 6: Issue Investigation Findings

• Further, the letters should include the following: 
• The findings of fact based on the evidence gathered, using the standard of evidence set forth in the school policy 
• Conclusions of law about whether the alleged conduct occurred 
• Disposition of the complaint (aka determination regarding responsibility) 
• Rationale for the disposition as to each allegation 
• Corrective actions taken, including disciplinary actions taken against the respondent
• Whether remedies will be provided to the complainant
• Notice to both parties of their right to appeal the decision 

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�Appeals Process

• The new regulations dictate that schools must offer both parties an appeal from a determination regarding responsibility, and from a school’s dismissal of a formal complaint or any allegations therein, on the following bases: 
• procedural irregularity that affected the outcome of the matter. 
• newly discovered evidence that could affect the outcome of the matter.
• Title IX personnel had a conflict of interest or bias that affected the outcome of the matter.
• NOTE: schools may also offer an appeal equally to both parties on additional bases. 

Step 7: Record Keeping

• Title IX regulations require the school to keep the following records for 7 years:
• Sexual harassment investigation documents, including any determination regarding responsibility, any audio or audiovisual recording or transcript, any disciplinary sanctions imposed on the respondent, any remedies provided to the complainant
• Appeals and results therefrom
• Informal resolution and results therefrom
• All materials used to train coordinators, investigators, decision-makers, and persons who facilitate an informal resolution process (such materials must also be made available on school website)
• The school should meticulously keep records in case it must ever document how its behavior was not “deliberately indifferent” in a Title IX proceeding.

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Informal Resolution

• Schools, in their discretion, can offer informal resolution options, such as mediation or restorative justice.
• In order to pursue this option:
• Both parties must give voluntary, informed, written consent. 
• Schools cannot require pursuing informal resolution as a condition of enrollment or employment.
• Schools cannot offer informal resolution unless a formal complaint has been filed.
• Schools cannot offer informal resolution for allegations that an employee sexually harassed a student.
• Note: At any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to formal complaint.

Retaliation Prohibited

• Expressly prohibits retaliation against any individual for exercising Title IX rights: 
• Protections for individuals making a complaint, testifying, or otherwise assisting.
• Prohibiting charges against an individual for another code of conduct violation not involving sex discrimination or sexual harassment arising out of same circumstances.
• Requirements for confidentiality of all individuals involved.
• Notable exceptions: 
• exercise of First Amendment Rights.
• making a materially false statement during a proceeding. 
• Any person retaliated against can file a complaint with the school, and the school must address the complaint promptly and equitably, as with Title IX complaints.
• NOTE: Schools should make every effort to keep the identifies of parties and witnesses confidential to avoid retaliation complaints.

Conclusion

• New regulations effective August 14, 2020.
• Recognize and begin preparing any needed policy and process revisions.
• Recognize and begin preparing for needed training.
• Recognize and be prepared for issues and complaints that may still come up despite COVID-19 and social distancing (e.g. cyberstalking, online harassment, inappropriate texting, etc.).

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Questions?