�Title IX�for K-12 Students

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Obligations and Responsibilities of Schools

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John Leombruno, Esq.

The Arnold Law Firm, LLC

What is Title IX?

Title IX of the Education Amendments Act, 1972 reads:

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

What is Title IX?

The Title IX statute applies to persons in the United States with respect to education programs or activities that receive Federal financial assistance.

Under the Final Rule, schools must respond when sexual harassment occurs in the school’s education program or activity, against a person in the United States.

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What is Title IX?

The Title IX statute and existing regulations contain broad definitions of a school’s “program or activity.”

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Education program or activity includes locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurred, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution (such as a fraternity or sorority house).

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What is Title IX?

Title IX applies to all of a school’s education programs or activities, whether such programs or activities occur on-campus or off-campus.

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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.

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Recent Changes in Title IX Law

• DOE released new Title IX Regulations on May 6, 2020

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• First significant changes to Title IX since 1975

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• Effective date for new regulations was August 14, 2020

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EDUCATIONAL ACTIVITY

Schools must address allegations of sexual harassment that occur in “the school’s education program or activity, against a person in the United States.”

“Education program or activity” is broadly defined to include locations, events, or circumstances over which the school exercises substantial control over both the respondent and the context in which the sexual harassment occurs.

Examples: School-funded, sponsored, or promoted trips, sporting events , school dances, extracurricular programs or activities.

Buildings or other locations that are part of the school’s operations, including remote learning platforms.

The operations of a school may include computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of, the school

SUBSTANTIAL CONTROL��

• Example scenarios of a school exercising substantial control:
• An incident of sexual harassment between two students in a private hotel room which occurred in a context related to a school-sponsored activity, such as a school field trip or travel with a school athletics team.
• An incident that occurred in a student’s home, such as where a teacher employed by a school visits a student’s home ostensibly to give the student a book but in reality to instigate sexual activity with the student.
• A student using a personal device to perpetrate online sexual harassment to another student during class time.

DENYING EQUAL ACCESS TO PROGRAM OR ACTIVITY

• EXAMPLES:
• Skipping class to avoid respondent
• Decline in performance or grade point average
• Focus/concentration problems in class
• Young student who starts wetting bed or crying before/after school due to incidents on campus
• Anxiety/depression/etc.
• Withdraw from activities (sports, clubs, etc.)

MORE ON DENIAL OF ACCESS:

While the previous examples help illustrate an effective denial of access, no concrete injury is required to prove an effective denial of equal access.

Complainants do not need to have dropped out of school, failed a class, had a panic attack, or otherwise reached a ‘breaking point’ or exhibited specific trauma symptoms

A complainant does not need to have already suffered loss of education before being able to report sexual harassment

Effective denial of equal access to education also does not require that a person’s total or entire educational access has been denied

Title IX conduct is NOT:

Definitions You Need to Know:��Sexual harassment is defined as conduct on the basis of sex that satisfies one (1) or more of the following:�

Sexual Assault

Sexual assault means any sexual act directed against another person, without consent of the victim, including instance where the victim is incapable of giving consent.

Sexual assault includes rape, sodomy, sexual assault with an object, fondling, incest, and statutory rape.

20 U.S.C. 1092(f)(6)(A)(v) (referencing sex offenses under the FBI’s Uniform Crime Reporting System)

Domestic Violence

Domestic violence means a felony or misdemeanor crime 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 in which the crime of violence occurred; 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 in which the crime of violence occurred

34 U.S.C. 12291(a)(8)

Dating Violence

Dating violence means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim.

The existence of such a relationship shall be based upon the reporting party’s statement with consideration of the length of the relationship, type of relationship, and frequency of the interaction between the persons involved in the relationship.

34 U.S.C. 12291(a)(10)

Stalking

Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to (1) fear for the person’s safety or the safety of others or (2) suffer substantial emotional distress.

34 U.S.C. 12291(a)(30)

“SEVERE”

• Allegations of physical contact are more likely to be considered severe
• Consider the circumstances

“PERVASIVE”

• Determine if the conduct was widespread or openly practiced

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• Was there an unreasonable interference with the educational program or activity

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• Frequency of the conduct is often a variable in assessing pervasiveness
• Intensity
• Duration

“OBJECTIVELY OFFENSIVE”

Reasonable person standard

Age and relationship of complainant and respondent are considered

Number of persons involved

Frequency

Other Factors / Humiliation

Title IX Roles and Personnel

Complainant

Respondent

Title IX Coordinator (District and School-Based)

Investigator

Decision Maker(s)

Appeals Decision Maker

COMPLAINANT:

• An individual who is alleged to be the victim of conduct that could constitute sexual harassment.

RESPONDENT:

• An individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.

ADVISORS:

• The complainant and respondent are entitled to have one (1) advisor of their choosing.
• The advisor may attend any meeting or interview during the Title IX Grievance Process.
• Advisors may include: Parent, Family Friend, Attorney, Coach,Youth Pastor, etc.

COORDINATOR:

• Responsible for the Title IX process and compliance with all rules and obligations for the School
• Can also be the “investigator”

COORDINATOR/INVESTIGATOR:

• Responsible for coordinating Title IX compliance at their assigned school
• Document all Title IX complaints
• Conduct a fair and impartial investigation of formal complaints that fall within the scope of Title IX
• Implement supportive measures and remedies
• Create an investigative report that fairly summarizes relevant evidence
• Ensure Title IX investigation is complete prior to any discipline (i.e. suspension, PASS, schedule change etc.)

DECISION MAKER:

• Serve as the decision-maker in Title IX matters
• Determine whether the Code of Conduct has been violated based upon the the evidentiary standard adopted by the school
• Conduct an independent assessment of the evidence (remain uninvolved during the Title IX investigation)
• Remain free from conflict of interest and bias
• Determine appropriate discipline when a Code of Conduct violation has been found
• Draft a written determination that outlines the rationale for the finding(s)

APPEALS DECISION MAKER:

• Make a determination on a party’s request for an appeal
• Review written submissions from parties
• Review investigative report and all evidence from the underlying investigation
• Case review is limited to the grounds listed in the appeal request
• Draft a written determination that outlines the rationale for the outcome

Reporting Sexual Harassment

Any person may report sexual harassment, regardless of whether the reporting person is the alleged victim of the conduct

A report can be made in person, by telephone, by mail, or by electronic mail to the Title IX Coordinator

Regardless of who the investigator will be, the Title IX Coordinator must be informed

Knowledge of Sexual Harassment

When any school-based employee has knowledge of sexual harassment or allegations of sexual harassment, schools are obligated to respond!

• This includes food service employees, custodial staff, para--professionals, school clerks, etc.
• Title IX classifies actual knowledge as notice
• Employees must report (preferably in writing) any allegations of sexual harassment to the District Title IX Coordinator, school-based Title IX Coordinator, or appropriate district administrator

Notice related to Title IX infraction

Any time an elementary or secondary employee has notice that sexual harassment may have occurred, the school MUST respond.

Source: USDOE “Questions and Answers on the Title IX Regulations on Sexual Harassment (July 2021)”

Types of Complaints�

Formal complaints:

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A document filed by the complainant or the Title IX coordinator alleging sexual harassment against the respondent and requesting an investigation

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MUST be considered for investigation.

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Types of Complaints

• Formal complaints can be filed by the complainant, parent or legal guardian, or the school-based Title IX Coordinator and must be submitted on Title IX Complaint Form; they must be in writing and signed
• Once the formal complaint is filed, schools must immediately determine the following:
• Do the allegations meet the definition of sexual harassment?
• Did the conduct occur in an educational program or activity?
• Did the allegations occur against a person in the United States?
• If all three requirements are met, then schools must follow the grievance process
• Consolidation: allegations arising from the same facts or circumstances can be consolidated into a single formal complaint

Types of Complaints

Informal complaints (anonymous/non-specific) must be responded to in accordance with 34 U.S.C. 106.44

• If the complaint is informal, the complainant is provided the opportunity to make it a formal complaint.
• The Title IX coordinator can assist the complainant in completing the formal complaint form.

Initial Response(s) to Sexual Harassment Complaints

Overall: Schools must respond to knowledge of sexual harassment “promptly, in a manner that is not deliberately indifferent.”

Specific steps:

• Upon knowledge of sexual harassment, the Title IX Coordinator must:
• Promptly contact the complainant confidentially to discuss the availability of supportive measures
• Consider the complainant’s wishes with respect to supportive measures
• Inform the complainant of the availability of supportive measures with or without the filing of a formal complaint
• Explain to the complainant the process for filing a formal complaint
• Refrain from any discipline against the respondent without following the formal investigative process

34 C.F.R. 106.44(a)

INITIAL ASSESSMENT

Prior to any discipline being implemented the Title IX coordinator must conduct an initial assessment.

The initial assessment will determine the following: • Do the allegations fall within the Scope of Title IX?

Does the conduct meet the definition of sexual harassment?

Did the incident occur within an education program or activity?

Did the incident occur against a person in the United States?

Was a formal complaint filed?

Does the Title IX Coordinator need to fill out the complaint form?

Dismissal

Supportive Measures

Individualized services that are:

• Reasonably available
• Non-punitive/ non-disciplinary / not unreasonably burdensome
• Ensure equal educational access
• Protect safety
• Deter sexual harassment
• Free
• Examples: counseling, extension of course-related adjustments, modification of schedules,
• no-contact directives, leaves of absence, etc.
• You should document any services provided, or services offered and not provided
• Title IX Coordinator is responsible for implementing and tracking supportive measures

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• 34 C.F.R. 106.30

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Grievance Process

Must be followed if:

1. a formal complaint has been filed from the start, OR

2. is filed after final response from Title IX coordinator.

Grievance Process

WARNING!!!

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Discrimination on the basis of sex. A recipient's treatment of a complainant or a respondent in response to a formal complaint of sexual harassment may constitute discrimination on the basis of sex under title IX.

34 U.S.C. 106.45(a)

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Grievance Process Requirements

(i) Treat complainants and respondents equitably

(ii) Require an objective evaluation of all relevant evidence

(iii) Require that the Title IX Coordinator, investigator, decision-maker, or any person

designated by a recipient to facilitate an informal resolution process, does not have a

conflict of interest or bias for or against the complainant or respondent

(iv) Include 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

(v) Include reasonably prompt time frames for conclusion of the grievance process,

including reasonably prompt time frames for filing and resolving appeals

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Grievance Process Requirements

(vi) Describe the range of possible disciplinary sanctions and remedies or list the possible

disciplinary sanctions and remedies that the recipient may implement following any

determination of responsibility;

(vii) State that the standard of evidence to be used to determine responsibility is the

preponderance of the evidence, apply the same standard of evidence for formal complaints

against students as for formal complaints against employees, including faculty, and apply the

same standard of evidence to all formal complaints of sexual harassment;

(viii) Include the procedures and permissible bases for the complainant and respondent to

appeal;

(ix) Describe the range of supportive measures available to complainants and respondents;

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(x) Not require, allow, rely upon, or otherwise use questions or evidence that constitute, 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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Notification to Authorities

If the suspected harassment might constitute a crime, it must be immediately reported to law enforcement. If there is uncertainty, err on the reporting side.

If the suspected harassment might involve child abuse, it must be immediately reported to the Department of Child and Family Services. If uncertainty, still report.

Removal due to Emergency Situation

A school may remove a respondent from an education program or activity on an

emergency basis if the school:

• Undertakes an individualized safety and risk analysis (threat assessment);

• Determines an immediate threat to the physical health or safety of any student or other individual arising from the allegations justifies removal; and

• Provides the respondent with notice and an opportunity to challenge

• This provision may not be construed to modify any rights under the Individuals with Disabilities Education Act,

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Notice of Allegations

In response to a formal complaint, schools must provide written notice to all known parties and follow the specified grievance process before the imposition of any disciplinary sanctions against the respondent

Notice should be provided as soon as possible

Notices must include:

The identities of parties involved;

The conduct allegedly constituting sexual harassment;

The date and location of the alleged incident;

A statement that the respondent is presumed not responsible for the alleged conduct;

The school’s grievance process;

A statement that a determination regarding responsibility is made at the conclusion of the grievance process

A statement informing the parties that they may have an advisor of their choice who may be, but is not required to be, an attorney

A statement advising parties that they may inspect and review evidence; and

A statement informing the parties of any provision in the recipient’s Code of Student

Conduct that prohibits knowingly making false statements or knowingly submitting false information

Investigations of Formal Complaints

(i) Ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the recipient and not on the parties provided that the recipient cannot access, consider, disclose, or otherwise use a party's records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional's or paraprofessional's capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the recipient obtains that party's voluntary, written consent to do so for a grievance process under this section (if a party is not an “eligible student,” as defined in 34 CFR 99.3, then the recipient must obtain the voluntary, written consent of a “parent,” as defined in 34 CFR 99.3);

Investigations (cont’d)

(ii) Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence;

(iii) Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence;

(iv) Provide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney, and not limit the choice or presence of advisor for either the complainant or respondent in any meeting or grievance proceeding; however, the recipient may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties;

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Investigations (cont’d)

(v) Provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate;

(vi) Provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the recipient does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation. Prior to completion of the investigative report, the recipient must send to each party and the party's advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and the parties must have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report. The recipient must make all such evidence subject to the parties' inspection and review available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination; and

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Investigations (cont’d)

(vii) Create an investigative report that fairly summarizes relevant evidence and, at least 10 days prior to a hearing (if a hearing is required under this section or otherwise provided) or other time of determination regarding responsibility, send to each party and the party's advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response.

Written Determination

After review, the Decision Maker must provide a written determination

regarding responsibility including findings of fact, conclusions as to whether

the alleged conduct occurred (meets the standard), rationale for results, and

any discipline (respondent) and remedies (complainant).

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Decision-maker must issue a written determination to the parties

simultaneously

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The school-based Title IX Coordinator is responsible for implementing

remedies stated in the written determination

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Written Determination (cont’d)

• Identification of the allegations potentially constituting sexual harassment;
• A description of the procedural steps taken from the receipt of the formal complaint through the written determination, including any notifications to the parties, interviews with parties and witnesses, site visits, and methods used to gather other evidence;
• Findings of fact supporting the determination;
• Conclusions regarding application of the Code of Student Conduct/SBP to the facts;
• The result and rationale as to each allegation;
• A determination regarding responsibility as to each allegation;
• Any disciplinary sanctions imposed on the respondent by the school;
• Whether remedies will be provided by the school to the complainant; and
• Permissible procedures and grounds for the complainant and respondent to appeal.

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Appeals

8. (i) A recipient must offer both parties an appeal from a determination regarding responsibility, and from a recipient's dismissal of a formal complaint or any allegations therein, on the following bases:

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

Appeals (cont’d)

(ii) A recipient may offer an appeal equally to both parties on additional bases.

(iii) As to all appeals, the recipient must:

• (A) Notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties;
• (B) Ensure that the decision-maker(s) for the appeal is not the same person as the decision-maker(s) that reached the determination regarding responsibility or dismissal, the investigator(s), or the Title IX Coordinator;
• (C) Ensure that the decision-maker(s) for the appeal complies with the standards set forth in paragraph (b)(1)(iii) of this section;
• (D) Give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome;
• (E) Issue a written decision describing the result of the appeal and the rationale for the result; and
• (F) Provide the written decision simultaneously to both parties.

Informal Resolutions

A recipient cannot offer, or require, an informal resolution process unless a formal complaint is filed.

However, prior to reaching a determination, the recipient may have an informal resolution process (such as mediation) IF notice is provided to the parties (along with the allegations), and parties have the knowledge that they can withdraw at any time and continue with the grievance process. The recipient also must obtain the parties' voluntary, written consent to the informal resolution process, and not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.

Obligations for Record Keeping

Schools must maintain records related to any investigation for seven (7) years, including

records of:

• Any actions taken in response to a report of sexual harassment;

• Any actions taken in response to a formal complaint of sexual harassment;

• Any supportive measures provided;

• Each sexual harassment investigation;

• Any determination regarding responsibility;

• Any audio or audiovisual recording or transcript;

• Any disciplinary sanctions imposed on the respondent;

• Any remedies provided to the complainant;

• Any appeal and written appeal decision; and

• All materials used to train school-based Title IX Coordinators, investigators, decision-makers, and

appeals decision-makers.

Obligations for Record Keeping (cont’d)

Copies of all records should be sent to the appropriate District Title IX Coordinator at the conclusion of the process.

If the respondent is found responsible, the records should also go into their discipline file.

Retaliation

No school or other person may intimidate, threaten, coerce, or discriminate against any individual for the purposes of interfering with any right or privilege secured by Title IX, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing

Complaints alleging retaliation should be sent to the District Title IX Coordinator

CONSOLIDATION

Formal complaints involving allegations of sexual harassment arising from the same facts or circumstances may be consolidated:

Against more than one (1) respondent

If multiple complainants file a complaint against multiple respondents

If one (1) party files a complaint against the other party

EMERGENCY REMOVAL

• A school may remove a respondent from an education program or activity on an emergency basis if the school:
• 1) Undertakes an individualized safety and risk analysis;
• 2) Determines an immediate threat to the physical health or safety of any student or other individual arising from the allegations justifies removal; and
• 3) Provides the respondent with notice and an opportunity to challenge the decision within two (2) school days following removal

This provision may not be construed to modify any rights under the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act.

The School Threat Assessment Team shall be notified

Conflict of Interest and Bias

A conflict of interest is defined as a conflict between the private interests and the official or professional responsibilities of a person in a position of trust. It could also encompass the conflict between competing duties.

Explicit bias refers to attitudes and beliefs we have about a person or a group on a conscious level.

Implicit bias refers to the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.

Know your Title IX Coordinator (District)

But wait! There’s more!!...

Investigations regarding bullying and Florida’s Hope Scholarship Program

WHY ARE WE TALKING ABOUT BULLYING IN A TITLE IX TRAINING?

Section 1006.147 �Jeffrey Johnston Stand Up For All Students Act

Prohibits the bullying or harassment of any student or employee of a public K-12 educational institution during any school related program or activity, bus, or electronic means

Provides definitions for bullying (cyberbullying) which include: teasing, social exclusion, threat, intimidation, stalking, physical violence, theft, sexual, religious or racial harassment, public or private humiliation, destruction of property

Requires districts to adopt and review (at least every three years) a policy prohibiting bullying and harassment of students that is in substantial conformity with the DOE’s model policy.

Policy must include procedures for investigation, receiving reports, notification to parents, definitions, consequences for violations, reporting data, etc...

WHAT IS YOUR POLICY?

FL’s Hope Scholarship Program��Know the law under Section 1002.40, F.S.

• This program allows students, subjected to an incidence of violence or bullying, the opportunity to
• Transfer to another school, or
• Apply for scholarship funds to assist in enrolling and transferring to a private school

How is “incident” defined under the law? It’s all about bullying, right?

• Not entirely…under Section 1002.40 (3), F.S., the word “incident” includes (but is not limited to):
• Battery
• Harassment
• Hazing
• Bullying
• Kidnapping
• Physical attack
• Threat or intimidation
• Fighting at school

Know the two basic obligations for schools…

����See Section 1002.40(6), F.S., which includes…

What happens when an incident of bullying is reported at our school?

First…

Provide a copy of the incident report to the parent(s) of the student and investigate the incident to determine whether it needs to be reported to the FLDOE

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Second…

Provide both the parent of the alleged offender and the superintendent with a copy of the report within 24 hours of the incident

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Third…

• At the conclusion of the investigation or within 15 days of the incident being reported, the school must notify the parent of the program and offer the parent an opportunity to…
• enroll his or her student in another public school or
• to apply for a scholarship to enroll in and attend a private school

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Does the bullying incident need to be substantiated before the school notifies the parent of the Hope Scholarship Program?

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NO

Under Rule 6A-6.0951 of the Florida Administrative Code…

• The school district MUST timely notify parent(s) of the Hope Scholarship Program AND provide the parent(s) with a completed Hope Scholarship Notification Form—REGARDLESS of the outcome of the investigation

Can our school alter the Hope Scholarship Notification Form?

• NO. If a district substantively alters the form, it may be rejected and cause unnecessary delays

So…then what is the purpose of the district’s investigation?

• The purpose of the district’s investigation is to determine whether the district must report the incident to the department under Section 1006.09(6), F.S., and to determine whether training or corrective action needs to be taken at the school
• The purpose of the investigation is NOT to determine whether a student is eligible for the Hope Scholarship Program

FLDOE Model Policy Against Bullying:�Cyberbullying

• Definition: systematically and chronically inflicting physical hurt or psychological distress on one or more students through (among other things): email, internet postings, the creation of a webpage, instant messaging, social media, or any transfer of signs, symbols, writing, images, sound, and/or data through digital, electronic, and other mediums

What are the details of conducting an investigation when there is a report of bullying?

If a report of bullying incident is received

Documentation

• All interviews with parties and witnesses should be fully documented with appropriate FLDOE forms

Required reporting of incidents

• All school employees are required to report alleged violations to the principal or the principal’s designee
• The principal is required to establish and prominently publicize how to report bullying
• Persons who promptly report in good faith and in compliance with the procedures of the policy are immune from a cause of action