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Title IX: Responding to Discrimination on the Basis of Sex in K-12 School Systems

Administrator Academy #3752

Stephanie Jones

@EdLawSteph1

Elizabeth Kelly

@ElizabethK_91

krihaboucek.com

@krihabouceklaw

Oakbrook Terrace Office

2 Trans Am Plaza Dr., Suite 450

Oakbrook Terrace, IL 60181

Southern Illinois Office

3 Club Centre Court Suite D�Edwardsville, IL 62025

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Background: Title IX of the Education Amendments Act of 1972 (20 U.S.C. § 1681)

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History

When Title IX Applies

Formal

Complaint

Investigation

Decision on Complaint (Hearing)

Appeal

Miscellaneous

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“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”�- 20 U.S.C. § 1681(a)��Sexual misconduct constitutes sex-based discrimination.

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Big Picture Overview: What Is the Purpose of Title IX?

In 1972, the Education Amendments Acts were passed and signed into law. Title IX of these Acts—now simply referred to by the shorthand “Title IX”—prohibits educational institutions that receive federal funds from discriminating on the basis of sex. At the time it passed this law, Congress was primarily concerned with equal access for men and women to school admission, school-related activities (like sports), and employment in schools. But in the nearly 50 years since, courts have declared that sex-based discrimination also encompasses sexual misconduct, including sexual harassment, assault, and violence. Title IX protects students and school employees from sexual misconduct as a form of sex-based discrimination and the harm that it causes.

We all agree, students and employees deserve protection from sexual misconduct at school or work. So when we think about designing and implementing policies that align with Title IX’s requirements, let’s keep this greater purpose in mind. We want to create policies that protect students and employees, and we want to create policies that provide remedies for the harm that sex-based discrimination causes.

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Title IX of the Education Amendments Act of 1972

20 U.S.C. §1681

Signed on June 23, 1972

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History

1972 : Title IX passed and signed into law

1975 : DOE issued first Regulations to implement Title IX (34 CFR Part 106 et seq.)

Addressed equal opportunities for men and women in hiring, admissions, athletics, etc.
Did not specifically address sexual harassment as a form of sex discrimination

1997, 2001, 2011, 2014, 2015, 2017 : DOE’s Office for Civil Rights issued policy guidance documents to address sexual misconduct as a form of sex discrimination

Mid-2017 : DOE started drafting proposed Regulations

Nov. 29, 2018 : DOE published “Notice of Proposed Rulemaking”

2019 : DOE held committee hearings, listening sessions about proposed regulations

May 6, 2020 : DOE issued Final Regulations (& 2000+ pages explaining them...)

Aug. 14, 2020* : Final Regulations must be fully implemented

*In early June, 17 states (including IL)+ D.C. filed a lawsuit against DeVos and the DOE seeking to block implementation of the final regulations; in May, the ACLU joined with other organizations to file their own lawsuit to block the final rules

Historical Context: How Did We Get Here?

As we just noted, Title IX passed back in 1972. The Department of Education then enacted the first regulations to implement Title IX in 1975. These regulations outlined schools’ obligations with respect to nondiscrimination in admission and recruitment, access to education programs or activities (including access to health insurance, housing, and athletics, among others), and hiring and employment. But they had not been updated for 45 years, and they did not say anything about schools’ responsibility to investigate or remedy sexual harassment as a form of sex-based discrimination.

Historically, though, courts have identified sexual harassment and assault as forms of sex discrimination. The Department of Education’s Office of Civil Rights periodically issued policy guidance regarding schools’ obligations to its students and employees to investigate and remedy allegations of sexual misconduct as a civil rights matter under Title IX. The 2011 “Dear Colleague” Letter, 2014 Q&A document, and 2015 “Dear Colleague” Letter amped up schools’ responsibilities.

First, the 2011 Dear Colleague stated that if a student filed a complaint with the school alleging sexual misconduct, regardless of where the conduct occurred, the school had to follow its established procedures to process the complaint. The previous guidance also stated that if a school knows, or reasonably should know, about possible sexual misconduct, then the school MUST promptly investigate to determine what occurred and then take appropriate steps to resolve the situation, to resolve the situation, regardless of who notified the school. Finally, the previous guidance required that schools use a “preponderance of the evidence” standard when determining if the alleged misconduct occurred. The “clear and convincing” standard was deemed too high for alleged civil rights violations. The 2014 Q&A was a comprehensive 53-page document outlining schools’ responsibilities regarding notice, investigations, hearings, confidentiality, and interim measures. The 2015 Dear Colleague Letter focused on the appointment of a Title IX Coordinator and that person’s training and responsibilities.

Very early in the Trump administration, Secretary DeVos revoked the 2011 and 2014 Title IX guidance documents. She announced the Department’s intention to go through the long, formal rule-making process to enact updated Title IX Regulations. As you can see from this timeline, the full process has taken about three years. Unlike the previous guidance documents, these Regulations have the force of law, unless and until they are either 1) replaced by laws passed by Congress, or 2) overturned by the federal courts. In the current political climate, neither is particularly likely—Congress and the courts defer quite a bit to the federal agencies when they go through the full formal regulation process. The lawsuits that were filed by states and by organizations like the ACLU, even if successful, will take a long time to work their way through the courts. So, we will likely be living with these Regulations for a long time to come.

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Original Focus: Sex Equity

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Illinois Sex Equity Rules

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Sex Equity Policy

“It is the policy of the State of Illinois and the State Board of Education that no person shall be subjected to discrimination on the basis of sex in any program or activity supported by school district funds.”

Rules largely aimed at ensuring equal access to opportunities and equal treatment

Compare to new Title IX Regulations aimed at addressing Sexual Harassment

Requires schools to have written policies on sex equity and a grievance procedure for investigating complaints of alleged discrimination on the basis of sex

“Uniform Grievance Procedure” + “Non-discrimination” + “Harassment” policies all in place to meet this requirement

Supplement to Title IX obligations

Title IX is the floor/baseline of what a school must do
Sex Equity Rules elevate and clarify expectations

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Applying The Sex Equity Rules

Sports / Extra-Curricular Activities:

Required to offer equal opportunities to participate in athletic programs / activities

Different rules for contact v. non-contact activities

“The nature and extent of the athletics programs offered by a system shall accommodate the interests and abilities of both sexes to a comparable degree”

Factors looked at here =

Selection of sports offered; scheduling of games and practices, ratios of coaches to athletes; quality of coaching and officiating; supplies and equipment; budget

Facilities:

Okay to have single-sex locker rooms, bathrooms, shower facilities

Transgender Student Rights – Equal access to ALL students to choose the restroom, locker room, shower facility they prefer

Classes:

All courses open to all students; advertised to attract all students

Can segregate students for portions of a class or class sessions when discussing human sexuality content
PE  can be segregated for purpose of participating in contact sports

History, roles, and contributions if both sexes should be discussed in curriculum

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Scope of Title IX Under the New Regulations

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WHAT does Title IX Cover?

“Sexual harassment”: covers three classifications of sex-based discriminatory conduct:

Quid pro quo: employee offers some kind of aid/benefit/service in exchange for unwelcome sexual conduct
Any incident of sexual assault, dating violence, domestic violence, or stalking, as defined in the Clery Act / Violence Against Women Act
Unwelcome conduct that is:

Based on sex;
So severe AND pervasive AND objectively offensive;
That it effectively DENIES a person equal access to educational program or activity.

34 CFR § 106.30(a)

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Example Scenarios:

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Example 1:��A fifth grader tells her teacher that a student in her class is trying to touch her chest and her private areas, and saying things to her like “I want to get in bed with you” and “I want to feel your boobs.” The student says the classmate also put a door stop in his pants and tried to rub up against her in the hallway. This kind of behavior occurred nearly every day over several months. The student tells her teacher this is why her grades have dropped, that she is always nervous and anxious in school now. The girl’s mother also met several times with the principal to discuss the behavior.��Does this behavior, as described, meet the definition of sexual harassment under the Title IX regulations? If so, which prong does it fit, and why?

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Example 2:��A male student in seventh grade is the target of bullying by football players. On multiple occasions, the players pushed the student against a locker, ridicule him, threaten him, and say things like he “would be better off dead” or that he “should commit suicide.” Given what is said to the student, teachers suspect that he is the target of bullying because he is perceived as “not masculine enough” and not presenting himself in the same way as other male students at the school. On one occasion, the student was bullied in a classroom, and when he asked to leave the classroom to go to the guidance counselor’s office, his teacher told him that he “needed to stop being a baby.”��Does this behavior, as described, meet the definition of sexual harassment under the Title IX regulations? If so, which prong does it fit, and why?

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Details are directly based on Lansberry v. Altoona Area Sch. Dist., 318 F.Supp.3d 739 (W.D. Penn. 2018). These were real incidents of severe bullying experienced by a student identified as W.J.L. The bullying escalated to such an extreme point that this student took his own life. An investigation into the school’s Title IX policies showed that many other students at the school were the targets of bullying based on perceptions of being LGBTQ, as well as incidents of male students inappropriately touching female students. Multiple school instructors, paraprofessional staff, and administrators had not heard of Title IX and did not know who served as the Title IX Coordinator for the district.

Somewhat surprisingly, the court here actually granted the school’s motion to dismiss the Title IX claim. In the court’s view, the plaintiff (the deceased student’s father) did not provide enough specific facts to support the allegation that sexual harassment of his son took place. It was too much of a leap to assume that the bullying occurred because of gender or sex-based stereotypes. But clearly, in this case, the escalation of incidents over time should have been brought to the Title IX Coordinator’s attention for investigation, and the school should have made an effort to stop the harassment.

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Example 3:��A female high school student is the only female student on the school’s wrestling team. Over the course of about three years that the student was on the wrestling team, the (male) coach made the following comments:� - When the female student was wrestling with a male student, the coach said to him, “How does it feel knowing that’s probably one of the only women you’ll ever have on top of you?” Another time, while the same two students were wrestling, the coach said to the male student, “she’ll be the only girl you’ll touch.”� - To the female student directly, the coach said, “You’ll have to be a ‘boy’ on the team,” at least twice. He also said that she would have to have “strap-ons” [referring to prosthetic penises] at least four times.� - The coach asked the student if she was having her menstrual cycle during a wrestling match, because he could see her “pad” through her singlet, and then laughed about it with another coach.��Does this behavior, as described, meet the definition of sexual harassment under the Title IX regulations? If so, which prong does it fit, and why?

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Details are directly based on Moeck v. Pleasant Valley Sch. Dist., 179 F.Supp.3d 442 (M.D. Penn. 2016). Ultimately, the court found that there were “fewer than ten sexually-tinged comments over the course of two or three years. Such sporadic incidents are not sufficiently pervasive to establish a sexual harassment claim. Moreover, the statements are mere offensive utterances. While they are offensive and inappropriate, the statements do not address plaintiff in a sexual way. Significantly, she was not sexually propositioned, physically threatened or touched in a sexual manner. [ . . . ] The record establishes that the coaching staff were not discriminatory—they ‘harassed’ everyone on the team, male and female. They did not harass because of sex but rather, harassed everyone regardless of their sex. As noted above, the harassment when directed at plaintiff specifically was tinged with references to her sex. Plaintiff, however, has not established the comments were aimed at her because of her sex. The coaches treated her like everyone else, poorly and immaturely. The record does not support the assertion that the coaches treated them in that manner because of anyone’s sex. Instead, the record indicates that they treated everyone the same regardless of sex. If anything, the interaction with the male students may have been even more sexually-tinged with the coach asking the male students about their sexual activity, but not while plaintiff was present. So while the actions of the coaching staff were vulgar and inappropriate, we find that they were not sexual harassment.”

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Title IX vs. Illinois Sexual Harassment

Illinois: "Sexual Harassment” is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.

Title IX: “Title IX Sexual Harassment” is defined as Conduct on the basis of sex that satisfies one or more of the following: (1) A District employee conditions the provision of an aid, benefit, or service on an individual’s participation in unwelcome sexual conduct; (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

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WHO are the parties involved?

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

Title IX Coordinator: schools must designate a Title IX Coordinator to coordinate all the school’s efforts to comply with the Title IX Regulations

Investigator: individual(s) who investigate(s) allegations sexual harassment made in a formal complaint and create(s) investigative report; may be Title IX Coordinator, but not in all circumstances (more on this later)

Decision-maker: individual(s) who make(s) a determination of responsibility based on investigative report, evidence, statements, and any hearings as to alleged sexual harassment made in a formal complaint; cannot be the same person(s) as the Title IX Coordinator or Investigator (more on this later)

Appeals Decision-maker: individual(s) who review(s) the appeal of any determination of responsibility; cannot be the same person(s) as the Title IX Coordinator, Investigator, or original Decision-maker (more on this later)

34 CFR §§ 106.8, 106.30(a), 106.46(b)(5)-(8)

Who Title IX involves:

When there is a formal Title IX complaint, you have at least two parties– the Complainant on one side, who is alleged to be the victim, and the Respondent on the other side, who is alleged to be the perpetrator. Of course, within a single incident, there could be more than one Complainant or more than one Respondent, and Title IX does allow you to combine complaints when an incident involves multiple people.

The primary figure at the center of the process is the Title IX Coordinator—this is nothing new in itself. The Title IX Coordinator is ultimately responsible for making sure the school carries out its responsibilities as laid out in the Title IX regulations. The Title IX Coordinator will be the “clearinghouse” for all formal complaints of alleged sexual harassment, as well as the coordinator for supportive measures. If a grievance process plays out in full, the Title IX Coordinator will also ensure that the remedies and any sanctions are applied to the parties.

Next—and this is new in these Regulations—you have the Investigator. We’ll talk more about this person during the discussion of the grievance procedure, but basically this person will investigate the allegations made in a formal complaint. Many times, this will be the Title IX Coordinator, but sometimes, you might need to bring in a separate investigator.

Next, there is going to be a “Decision-maker” who will review all the information gathered and make a determination of responsibility. The Decision-maker could be a single person, or it could be a group of people who work together, like a jury. But the Regulations are clear that neither the Title IX Coordinator NOR the Investigator can be a Decision-maker or participate in the decision-making process.

Finally, there is a separate “Appeals Decision-maker” who will review any appeals after the original Decision-maker has given their decision. Again, this has to be a completely new person who hasn’t participated in any other part of the process.

Although not explicitly included here on the slide, you should also consider the personnel who would offer/implement any informal resolutions to Title IX complaints within this list. Your schools are not required to offer informal resolutions as an alternative pathway for complainants to resolve their complaints with respondents. However, if you do choose to offer informal resolutions (which we’ll talk about later), then those individuals who facilitate these processes must be trained on Title IX as well. They’re another part of the response team.

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WHERE does Title IX Apply?

“Educational Programs or Activities”: includes—

Locations, events, or circumstances over which the school exercised substantial control over both the respondent AND the context in which the sexual harassment occurs; and
Any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.

“Against a person in the United States”:

Sexual harassment that occurs abroad does not fall within the purview of Title IX and its implementing Regulations.
BUT schools can choose to respond to sexual misconduct that occurs abroad via alternative means in Student/Employee Codes of Conduct.

34 CFR §§ 106.30(a), 106.44(a)

Geographic scope of a formal complaint:

Title IX also imposes geographic limits on a school’s responsibility to investigate allegations of sexual harassment. The relevant locations are much more restricted than they were under the previous guidance. Now, the conduct must have occurred AT locations or during events or circumstances where the school exercised substantial control over the respondent AND the context. For example, this would clearly include school buildings, grounds, facilities, and campuses. But it also includes field trips, school buses, sporting events, and residence halls, etc., because schools exercise substantial control over these contexts. But this does NOT include students’ homes, nor independently-owned and rented off-campus apartments, where many college and university students live.

An important exception to this off-campus housing rule, though, would be fraternity and sorority houses, IF a university officially recognizes these organizations. Even if the university doesn’t own or control the house, if the university recognizes the student organization in some way, then the Regulations include conduct that takes place there.

The regulations are not explicit about online sexual harassment and whether that falls within the scope of Title IX. According to the Department, what constitutes the “educational program or activity” is a “fact-specific inquiry.” But an educational program or activity could reasonably include “computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of, [the school].” (See 85 Fed. Reg. at 30202). We also have to weigh the “substantial control” factor—if a student is using a personal phone in class and sending sexually harassing messages, then that’s likely occurring in an environment where the school has substantial control. But if the student is at home and using a personal device, and not logged into any school network or program, then that’s most likely outside the context where a school can exercise control.

Secondly, another geographic limitation: Title IX only applies to conduct against a person in the United States. So allegations of sexual harassment that took place abroad does not fall within the purview of Title IX. In the last 15 years, there have been conflicting district court opinions on whether Title IX applies to universities’ study abroad programs. Now that these Regulations have come out, courts will likely defer to the Department’s geographic restriction, unless the Supreme Court overturns them, which it probably won’t. For now, schools, and especially colleges and universities with extensive international programs and research activity, need to think about how to address allegations of sexual harassment through other channels. The Regulations DO allow for schools to address allegations of sexual harassment that occurs abroad through its procedures in Student and Employee Codes of Conduct. But this is separate from Title IX. Similarly, elementary and secondary schools that occasionally offer international trips should still develop policies to prevent or respond to any type of sexual harassment that could occur outside of the U.S. It might not be obligated by Title IX, but schools still have an ethical and moral obligation to its students and employees that does not stop at the border.

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Does Title IX Apply?

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HOW Do Schools Fulfill Their Title IX Obligations?

General Response: A school with actual knowledge of sexual harassment in an education program or activity against a person in the United States must respond promptly and in a manner that is not deliberately indifferent.

“Deliberately indifferent”: clearly unreasonable in light of known circumstances
Must treat complainants and respondents equitably
Must offer supportive measures to an alleged victim
Must not impose disciplinary measures against Respondent until full grievance process carried out (more on this later)

34 CFR §§ 106.6(d)-(h), 106.44(a)

Maintaining other Legal Obligations: While responding to Title IX allegations, schools should not compromise other rights including:

First Amendment: e.g., freedom of speech
Fifth/Fourteenth Amendments: due process rights
FERPA requirements
Title VII obligations
Parents’ rights to act on behalf of minor child
State laws and regulations

BUT if State law conflicts with federal law, then federal law preempts State law

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How should schools approach the Title IX process?

Before diving into the details of the grievance process, we have a few key principles to guide schools on how they should respond to allegations of sexual harassment in general.

When a school has actual knowledge of allegations of sexual harassment that falls within the scope of Title IX, the school must respond promptly, and in a manner that is “not deliberately indifferent.” That means a school can’t respond in a way that is “clearly unreasonable in light of known circumstances.” Basically, a school can’t just ignore credible allegations—it must do something. But that something depends on the circumstances. An appropriate response will nearly always include offering “supportive measures” to an alleged victim, as a starting point. We’ll talk about that in a moment. If a school with actual knowledge chooses to take no action at all in response to allegations, the school must document WHY it took no action, and why this was not “clearly unreasonable in light of known circumstances.”

The appropriate response must also treat the alleged perpetrator as innocent until proven guilty. So any measures taken to support the alleged victim cannot include any disciplinary or punitive actions against the alleged perpetrator until 1) a formal Title IX complaint is filed, and 2) the FULL grievance process plays out.

Finally, the school must also preserve other constitutional and statutory rights of the parties afforded to them by law. Note the First Amendment protections. The long explanation of the regulations emphasizes First Amendment rights a lot. Schools cannot restrict parties’ speech in ways that violate the First Amendment. So when you think about the supportive measures you put in place during the Title IX process, they can’t include a blanket “gag order” on any of the involved parties. BUT, you can still keep your existing Student and Employee Codes of Conduct in place and enforce any violations according to your Codes of Conduct. It may be a fine line to balance, especially amongst older students or employees and their use of social media.

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Supportive Measures: What are they?

Supportive Measures: non-disciplinary, non-punitive individualized services* offered free of charge as appropriate and reasonably available, in order to restore equal access. Title IX Coordinator helps get these resources. Examples:

Counseling
Extension of deadlines
Modification of work/class schedules
Campus escort services
Mutual restrictions on contact*
Changes in housing/work locations
Leaves of absence
Increased security

*Must NOT unreasonably burden the other party; remain confidential

34 CFR §§ 106.30(a), 106.44(b)

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How should schools approach the Title IX process? (cont’d)

We mentioned “supportive measures” in the previous slide. We’ve listed some of the most common types of supportive measures that schools can consider to support an alleged victim. You might also have other possible supportive measures available at your school. It’s very important to note that ANY alleged victim can work with a school to receive supportive measures as appropriate. There are probably other examples you could think about for your schools. But in any case, an alleged victim does NOT need to file a formal complaint to receive supportive measures. Even if a formal complaint is filed and dismissed, the Complainant can continue to receive supportive services.

Also, as previously mentioned, the supportive measures cannot be punitive against an alleged perpetrator until the full grievance procedure has played itself out. This means that supportive measures cannot unreasonably burden another person until that person is judged to be guilty of the allegations. In the past, some schools may have moved an alleged perpetrator of sexual harassment out of a class or possibly suspended their attendance while an investigation took place. This cannot happen under the new regulations, unless that person poses an immediate danger to others’ physical safety—we’ll come back to this situation later.

We also want to mention that supportive measures could potentially be extended to a Respondent, after a formal complaint is filed and the Respondent is aware of the allegations and investigation. Supportive measures must be offered equitably to both Complainants and Respondents when a formal complaint is filed.

The filing of a Formal Complaint of allegations of sexual harassment within the scope of Title IX triggers the full investigation and grievance procedures. We’ve now addressed the definitions and scope of Title IX under the new regulations. We’ll transition now into discussing the Title IX Formal Complaint and grievance procedures.

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Key Principle: Impartiality

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Impartiality

We all have biases, whether conscious or unconscious

Resist the urge to categorize
Reflect critically on your own identity and experience
Recognize when your identity and experience may affect your judgment
Hold yourself accountable

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Impartiality

An impartial party puts aside one’s preconceived beliefs or the urge to judge
Listen equally to all sides and focus on understanding the viewpoints of all involved

Listening impartially to others takes time
Listening impartially requires awareness of one’s own biases
Listening impartially means asking questions that open up dialogue, rather than close it down

Strategies like summarizing what you have heard and reflecting back can help you avoid your biases and ensure you are correctly understanding the person you’re questioning
Acknowledge where differences between accounts/perspectives exist; rather than seek to smooth over differences, seek more details
Take care that your words, tone of voice, and body language are neutral

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Title IX Formal Complaints & Grievance Procedures

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Basic Response Requirements

Objective evaluation of all relevant evidence, both inculpatory and exculpatory
No conflicts of interest/bias of Title IX Coordinator, Investigator(s), Decision-maker(s)
Presumption of innocence until proven guilty

Training for Title IX Coordinator, Investigator(s), Decision-maker(s) on the Regulations and impartiality
Same standard of evidence for students and employees
Reasonably prompt timelines for procedures
Equitable treatment for all parties

Clear descriptions of grievance & appeals procedures, range of disciplinary sanctions & remedies
Supportive measures available to Complainants and Respondents at any point
Can’t require production of legally privileged evidence

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Actual Knowledge

Requirements:

Can’t be “deliberately indifferent”

Possible Outcomes:

Supportive measures; no further action; OR
Complainant decides to file Formal Complaint; OR
Title IX Coordinator signs Formal Complaint

Formal Complaint

Requirements:

Notice of allegations
Notice of all procedures

Possible Outcomes:

Supportive measures AND:
Investigation, OR
Dismissal of complaint, OR
Informal resolutions, OR
Emergency removal + investigation

Investigation

Requirements:

Evidence gathering
Advisors for parties
Investigative report of facts leading to next phase

Possible Outcomes:

Complaint withdrawn
Informal resolutions
Hearing/questioning

Appeals

Determination regarding Responsibility

Hearings / Opportunity to Question

Requirements:

Postsecondary: live hearing(s)

Options:

K-12: may have live hearing OR opportunity to question other side in written form

Requirements:

Written determination
Provided to both parties

Options:

Standard of proof
Remedies
Supportive measures

Requirements:

Both parties have equal opportunity to appeal
Notice of appeal
Equal opportunity to respond

Options:

Bases for appeal

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Actual Knowledge

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Actual Knowledge

Triggered by notice of allegations of sexual harassment via

Informal verbal or written notice to relevant individual [see “actual knowledge” standard], OR
Formal Complaint filed by Complainant/signed by Title IX Coordinator [Go directly to Phase 2]

Informal notice triggers several possible responses, all of which require that school not be “deliberately indifferent” [see “deliberately indifferent” standard]:

Informal verbal or written notice

Supportive measures for alleged victim

No further action taken.

Informal verbal or written notice

Supportive measures for alleged victim

Alleged victim files Formal Complaint

Informal verbal or written notice

Supportive measures for alleged victim

Alleged victim declines to file Formal Complaint; Title IX Coordinator instead signs Formal Complaint

34 CFR §§ 106.30(a), 106.44(a)

You will need to recall the definition of Actual Knowledge discussed earlier in this presentation. When relevant individuals receive notice—i.e., before a Formal Complaint is filed—then there are several possible outcomes.

The school has to take action that is not “deliberately indifferent.” In nearly every circumstance, the first response from the Title IX Coordinator will be to work with an alleged victim to offer supportive measures designed to restore access. In some cases, this might be enough. The Complainant might not want to file a formal complaint, and the Title IX Coordinator may decide not to sign a formal complaint, either.

However, to move forward into the next phase, there has to be a formal complaint. Either the alleged victim files the formal complaint, OR, in some circumstances, the Title IX Coordinator might decide to sign a formal complaint even if the alleged victim does not wish to do so. The Title IX Coordinators will have discretion here.

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Discussion

A bus driver, on his daily route, nearly every day sees the same seventh grade girl get on at the third stop, and then two stops later, another seventh grade boy gets on and sits next to her. The first several times, she would get out of her seat and move away, but he would follow her or block her in to the seat. He appeared to be saying things that made her appear upset, but the driver couldn’t hear what they were. After a few weeks, she stopped trying to move but would stare out the window and pull her sweatshirt up over most of her face when he sat down. The bus driver asks the girl if the boy is making her uncomfortable, and she says that every day, he says he wants to “hold her down and do what he wants with her,” which makes her scared. After his route ends, the bus driver calls the school principal to tell her about this incident, and the principal relays the information to the Title IX Coordinator.

You are the Title IX Coordinator. What are your next steps, when you hear this report?

Example from earlier (could be substituted with others). This is an example where the school has actual notice of possible sexual harassment, even though the student herself did not report it.

Possibilities: call the bus driver to interview him more about the incident and learn what the details are. The Title IX Coordinator should then take some initial steps to contact the alleged victim and her parents to discuss what is going on on the bus.

The Title IX Coordinator can offer supportive measures, with possibilities such as: implementing an altered bus route so she is no longer on the same bus as the other student, asking the bus driver to keep an eye on the students and require them to sit separately, and empowering the bus driver to tell the student to stop making offensive comments if he hears them. This is an interactive, individualized process to support the alleged victim as much as possible.

The Title IX Coordinator cannot impose punitive or disciplinary measures on the other student (such as detention or suspension), because there has not been a grievance procedure with a formal determination regarding responsibility. HOWEVER, schools could consider addressing the situation through their normal Code of Conduct procedures.

The Title IX Coordinator should provide information to the student (and her parents) about the Formal Complaint process, so that they can choose whether to file a Formal Complaint.

**The Title IX Coordinator has the discretion to sign a Formal Complaint if the alleged victim declines to file one, when it would be “clearly unreasonable in light of known circumstances” for the Title IX Coordinator not to take further action. Discuss: is this one of those situations? What kind of situation might this be?

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Formal Complaint

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Formal Complaint

Requirements of Formal Complaint:

A document (electronic or physical)
Alleging sexual harassment, and
Requesting an investigation

EITHER:

Filed by a Complainant and signed by this individual [may not be anonymous]
OR
Signed by Title IX Coordinator. (see next slide)

Procedure for filing a Formal Complaint must be included in the school’s Title IX policies that are “prominently displayed” on website and/or in Student and Employee Handbooks, along with Title IX Coordinator’s contact information. Form may be provided via web portal.

34 CFR §§ 106.30(a), 106.8(b)-(c)

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2. Formal Complaint

When the Title IX Coordinator “Signs” a Formal Complaint Instead of Complainant
When would it be necessary?

If Complainant is not willing or eligible (e.g., has graduated) or identified to sign
But potential safety risk continues for other students/employees

What specific circumstances might justify the Title IX Coordinator signing a formal complaint?

The school has actual knowledge of a pattern of alleged sexual harassment by a perpetrator in a position of authority
The school wishes to investigate allegations in order to determine whether it has probable cause of employee sexual misconduct that affect school’s ESSA obligations
A Title IX Coordinator receives multiple reports of sexual harassment against the same respondent

Factors to consider

Pattern of alleged conduct, involvement of violence/weapons
Seriousness of alleged harassment, age of student harassed, prior reports
CANNOT use the “credibility” of report as a factor in deciding to sign formal complaint

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Formal Complaint

Formal Complaint triggers several possible responses:

Formal Complaint of allegations falling outside Title IX purview

School must dismiss complaint.

Supportive measures / no further action.

1

Formal Complaint of allegations falling within Title IX purview

Notice to all parties of allegations

Grievance procedures; begin investigation

2

Notice to all parties of allegations

Formal Complaint of allegations falling within Title IX purview

Parties mutually agree to informal resolution

3

Formal Complaint of allegations falling within Title IX purview

Notice to all parties of allegations

Emergency removal or administrative leave for Respondent

4

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Formal Complaint

Potential Outcome #1: Dismissal

If alleged conduct, even if proved 100% true, would not meet the definition of sexual harassment OR does not fit temporal or geographic scope of Title IX, then conduct falls outside of Title IX’s purview and school must dismiss the complaint.

School can still choose to address in other ways, such as through Code of Conduct.

School may choose to dismiss a complaint with allegations that fall within Title IX’s purview, IF:

Complainant wants to withdraw Formal Complaint, or
Respondent leaves, or
School cannot gather sufficient evidence to reach a formal conclusion.

Title IX Coordinator must provide written notice of dismissal and reasons to all involved parties

Complainant can choose to appeal dismissal.

School can continue to provide supportive measures to Complainant.

34 CFR §§ 106.46(b)(3); 106(b)(8)

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First, when the Title IX Coordinator receives a Formal Complaint, he or she will need to determine whether it actually falls within the scope of Title IX. If all the allegations, even if proven true, would fall outside the scope, then the school is required to dismiss the complaint. So, maybe the alleged conduct does not meet the specific definition of sexual harassment under Title IX—then the school must dismiss. OR, maybe the alleged conduct took place in a location outside of the school’s control, or it took place abroad—then the school must dismiss. OR else, maybe the Complainant at the time of filing had already graduated from the school, or the employee had already left the school, then the school must dismiss.

There is something of a loophole here: the regulations DO permit the school to investigate conduct that doesn’t fit within the scope of Title IX through other processes. The Student or Employee Code of Conduct might be an alternative means of addressing the situation. We advise that you look at your other conduct policies and think about whether they address scenarios where the alleged conduct is still troubling, but it doesn’t technically fit into Title IX. When a formal complaint is dismissed, the Title IX Coordinator could refer the matter to another conduct officer for another type of proceeding.

The regulations also grant discretion for the school to choose to dismiss Formal Complaint. Again, you’ll need to think about the scenarios under which your Title IX Coordinator has discretion to dismiss complaints and codify them in your policy.

Also, we’ll circle back to the appeals procedure at the end, but note that a Complainant can appeal the decision to dismiss the Formal Complaint.

You should also note that even if a formal complaint is dismissed, the school can still provide supportive measures to the Complainant as long as reasonable. When the complaint is dismissed, that doesn’t mean the healing stops—let the Complainant have agency in this on-going process.

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Formal Complaint

Potential Outcome #2: Investigation Triggered Under Grievance Procedures

If alleged conduct in Formal Complaint falls within Title IX purview, Title IX Coordinator must provide written notice to all parties who are known:

Notice of grievance process, including optional informal resolution process
Notice of the allegations of sexual harassment, including sufficient details for Respondent to prepare a response:

Identities of all involved parties, if known
Description of alleged conduct that meets Title IX definition of sexual harassment
Date/location of incident, if known
Statement that the Respondent is presumed innocent

Inform parties of their right to an advisor of their choice
Inform parties of their right to inspect/review ALL evidence
Inform parties of any provision in school’s Code of Conduct that prohibits knowingly making false statements or submitting false information

EITHER Investigation proceeds, OR parties agree to Informal Resolutions

34 CFR § 106.46(b)(2)

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Formal Complaint

Potential Outcome #3: Parties Opt for Informal Resolution

Title IX Coordinator must first receive Formal Complaint and follow notice procedures to all parties, discussed on previous slide
Requirements for Informal Resolution option:

CANNOT be compelled; parties must mutually agree
May be facilitated at any time before determination regarding responsibility reached under grievance procedures
Parties must provide written consent to informal resolution process
Before conclusion of informal resolution process, either party has the right to withdraw and return to grievance procedure; any information revealed during informal resolution process may be shared in the context of a renewed grievance procedure

School CANNOT use informal resolution for allegations of an employee’s sexual harassment of a student

34 CFR § 106.46(b)(9)

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Formal Complaint

Potential Outcome #3: Parties Opt for Informal Resolution

Options for Informal Resolution

Restorative Justice
Mediation
Arbitration
Others. . . No specific format required
**Ensure that, before offering any informal resolution, those who will conduct it are extensively trained in effective techniques

Informal Resolutions may reach agreements between the parties, facilitated by the school, that include measures similar to supportive measures for the Complainant, BUT they could also include disciplinary/punitive measures for the Respondent
Regulations allow for flexibility of Informal Resolution approach

34 CFR § 106.46(b)(9)

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Formal Complaint

Potential Outcome #4: Emergency Removal and/or Administrative Leave, Pending Outcome of Investigation & Grievance Procedures

Title IX Coordinator must first receive Formal Complaint and follow notice procedures to all parties, discussed on previous slide
Emergency Removal only possible in very specific circumstances: School must undertake an individualized safety and risk analysis and determine:

An immediate threat
To the physical health and safety of any student or other individual
Arising from the allegations of sexual harassment.

If school undertakes emergency removal, must provide Respondent with notice and an opportunity to challenge the removal immediately after removal occurs. [Consider IDEA, ADA, 504 implications for special education students]
Administrative Leave: school may place an employee on administrative leave pending the outcome of a grievance process. [Consider obligations to your union employees.]

34 CFR § 106.44(c)-(d)

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Finally, before proceeding to the investigation phase, in very specific and extraordinary circumstances, a school might decide that emergency removal is necessary. The regulations emphasize the Respondent’s due process rights and the presumption of innocence until proven guilty. Thus, to remove someone for anything less than being a real, immediate threat to physical health and safety would be against the rules. Removing someone from the school deprives them of their access to education or their employment, so it can only be done as an extraordinary measure. If you run into this situation, documentation of the individualized, fact-based safety and risk analysis will be critical. You will also need to give that student or employee the opportunity to challenge the removal immediately.

For employees accused of sexual harassment, if you have a policy on administrative leave, this could be a potential avenue to pursue. But you’ll still need to grant an opportunity for that employee to challenge the administrative leave, and you’ll need to remain compliant with applicable union contracts.

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Investigation

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Investigation

Burden on school, not parties, to gather evidence
Cannot request evidence that would be legally privileged; parties can opt to waive this privilege
Equal opportunity for parties to present witnesses

Fact
Expert

Cannot restrict ability of either party to discuss allegations or to gather evidence

Parties have equal opportunity to select advisors of their choice (may be attorney)
Must provide notice to all parties of all hearings, interviews, and meetings to allow time to prepare
Equal opportunity for parties to inspect/review any and all evidence so each party can meaningfully respond

Must send all evidence to parties before final report created
Must allow at least 10 days to respond

34 CFR § 106.46(b)(5)

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Trauma-Informed Response for Investigations��1. Understand the impact of trauma on a neurobiological, physical, and emotional level��2. Promote safety and support��3. Know positive ways to respond that avoid re-traumatization��4. Provide choice with a goal of empowerment

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~A separate training would probably be best to drill down into best practices for Title IX investigations, but this provides a “crash course” on some of the most important considerations, starting with the importance of a trauma-informed approach.

This framework for a trauma-informed response to investigations originates from https://atixa.org/resources/free-resources/whitepapers/ “ATIXA 2016 Whitepaper: The 7 Deadly Sins of Title IX Investigations.” While the regulations do not require a trauma-informed approach, practitioners recognize the benefits of such an approach as a best practice, that yields more complete investigations and will support participants in the process.

Understand the impact of trauma on a neurobiological, physical, and emotional level:

“Flight, fight, or freeze” – there are many ways the body reacts in the moment it is threatened
The body responds to trauma or perceived trauma by releasing a surge of chemicals that can stay in the body for up to 96 hours
Questioning about a traumatic event can reactivate this neurobiological response
This surge of chemicals may help explain delays in reporting, unexpected emotional affect, non-linear accounts, and fractured memories
Giving reporting parties a couple of sleep cycles before interviewing may help by allowing time for the chemicals in the body to subside

Promote safety and support

Provide a comfortable, neutral interview setting, including access to water, tissues, and things like stress balls or something else to help calm anxiety
Establish rapport with interviewee; don’t launch directly into questioning
Be clear about your role from the outset, the fact that you are an impartial investigator (who is not determining responsibility at this stage), and about what the school process can or cannot accomplish
Allow interviewee to ask questions about the process, and answer transparently
Convey sensitivity and empathy
If interviewing minors, never interview without presence of parents

Know positive ways to respond that avoid re-traumatization

Be strategic: always consider why you are asking a question, and do so in the most neutral way possible
Be transparent: if you must ask about alcohol or drugs, explain why, and explain amnesty so talking about this isn’t a barrier
Summarize what you hear the interviewee saying and repeat it back, to show you are actively listening and invites clarification
If interviewee has trouble answering, it’s okay to back off a question and come back later in another way
If you must ask about something triggering or blaming, consider least triggering way to ask (instead of “Did you try to leave?” try “Can you recall what options you considered when he closed the door behind you?”)

Provide choice with a goal of empowerment

Individuals who have experienced trauma feel they have lost control over the situation, and the ability to reestablish a degree of control is crucial for healing
Questions like “What can you tell me about what happened?” and “Where would you like to start?” leaves the interviewee in control
When you need to follow up, questions such as “Can you tell me more?” and “Can you help me understand?” are useful
Refrain from pointing out what you perceive to be poor decisions

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Investigation

How To Conduct Investigation

Plan investigation scope and timeline (must be prompt)
Identify and interview all involved parties

Interview the Complainant and the Respondent (separately) about what happened; additional interviews may be needed as evidence is uncovered
Ask open-ended questions about the incident(s) in the complaint

Allow time for follow-up questions, for more details
Do not use judgmental or projecting language in questions
Asking about how certain events made the interviewee feel is okay
Asking sensory questions may also help memory recall

Ask each person for the names of potential witnesses for additional interviews
Understand the trauma-informed approach to interviewing

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Investigation

How To Conduct Investigation

Gather any other relevant documentation available, such as documents, files, audio and video recordings, security camera footage, entry/exit logs, text messages, emails, social media posts, physical evidence, police reports, diary entries, etc.

You cannot request privileged information, such as medical records, educational records, or correspondence between a party and their lawyer—but a person may voluntarily offer this information
Think about what kinds of evidence could potentially corroborate the statements made in the interviews, and ask for if from interviewees
If a search is necessary, remember it must comply with 4^th Amendment rights

Once compiled, send all evidence to Complainant and Respondent (and their advisors) with plenty of time--at least 10 days--to meaningfully respond
Do not judge credibility of any parties or their statements, but document details that do/do not align with other parties’ accounts and other evidence

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Tips for handling witnesses

Introduce yourself and explain your purpose
Do not promise confidentiality, you cannot guarantee it
Allow witnesses to fully answer questions before you speak again
Do not put words in the witnesses mouth
Ask open ended questions first and then ask leading questions to confirm your understanding of the facts

Don’t be afraid to ask uncomfortable questions
End the interview by letting them know the following:

When you expect to be done with the investigation
What your steps are after the investigation
Whether they will be informed of the outcome of the investigation
Whether you may need to interview them a 2^nd time

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Additional Considerations for Witnesses

Should you record the interview?

Should you have the witness sign a statement?

For student witnesses, should parents be involved?

For staff witnesses, should union representatives be involved?

Should the employee be placed on leave during an investigation?

Should you involve law enforcement or DCFS?

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Interviewing the Respondent

Union members are entitled to Union representatives if the investigation could result in discipline
Ask about their knowledge of the complaint
Ask about their relationship with the complainant
Ask open ended questions and get as much detail as possible
Ask if they know of witnesses that can corroborate their side of the story

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Corey’s Law and Student Interviews

Corey’s Law, 105 ILCS 5/22-85, was passed as the result of a student suicide after the student was interview by a school resource officer and threatened with criminal charges
The law requires notice to parents before a student is interviewed by law enforcement, an SRO, or school security personnel
Must make reasonable efforts to allow parents to be present for interview

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Atwell Notice/Garrity Warning

Public employees do not have the right to remain silent. You can compel them to talk to you about the information contained in the complaint, even if the complaint involves criminal activity. However, you must give them a warning that explains that the information they share with you cannot be used against them to prosecute them.

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Collection of Other Artifacts

You have the right to search and seize items that are stored in workplace related areas (desk, file cabinets, classroom closets, district technology) as long as the employee does not have a reasonable expectation of privacy in those areas
Personal belongings that are out in the open can be viewed, but not searched
Contact Human Resources and/or your school attorney before you search the personal belongings of a school employee

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Avoid Investigation Pitfalls

Don’t assume anything – the truthfulness of witnesses, the veracity of the complaint, the guilt of the alleged respondent – until you have evidence
Don’t promise confidentiality because you cannot guarantee it
Don’t demonize the alleged victim or protect the alleged perpetrator
Stay neutral and, if you can’t stay neutral, you shouldn’t be investigating
Ensure proper documentation of the investigation

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Don’t forget…everybody lies, so don’t assume anything

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Investigation

Investigator(s) must create a final investigative report that fairly summarizes all the relevant evidence, without making a determination of responsibility.

It is not the investigator’s job to determine credibility of parties, witnesses, or evidence. It is the investigator’s job to gather the relevant evidence, and turn this over to the decision-maker to weigh credibility during next phase.

Create categories of facts that parties agree on, and facts that are in dispute, without inserting your own judgment of what is true or false
Must send full report to each party at least 10 days before any hearing
Must send full report to the Decision-maker in advance of any hearing / opportunity for parties to question each other

At any time, Complainant has right to withdraw the Complaint.

At any time, parties can mutually agree to Informal Resolutions, as applicable.

34 CFR § 106.46(b)(5)

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Discussion

You are the Title IX Coordinator for a K-12 school district. You receive a formal complaint signed by a parent on behalf of his 16-year-old son, who is a member of the high school varsity diving team. The parent’s complaint alleges that Coach Smith, who coaches both the girls’ and boys’ diving teams—as well as teaches world geography and is part of the teacher’s union—has been texting photos of his genitalia to members of the boys’ diving team, including to his son. Though the parent acknowledges that the phone number from which the texts originate is not the same as the cell phone on record for Coach Smith, the parent says that his son and his teammates feel like it couldn’t be anyone else, because it has happened to three of them, the coach has the cell phone numbers for all the team members, and the boys think the coach looks at them “weird” when in the locker room.

In small groups, create an investigation plan. What are your first steps? In what order will you arrange your investigation? Who will you notify and when? Who will you interview and when? What kinds of evidence will you look for?

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4. Hearings / Opportunity to Question

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Relevancy of Questions

Parties may only be asked relevant questions
Does it tend to make a fact more or less probable than without that information?
Is it likely to prove or disprove a fact or an allegation?
Same standard for live hearing and for written opportunity to question
Decision-maker must determine relevance of questions as they are asked, and before they are answered

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Relevancy of Questions

Questions and Their Relevance

Parties may only be asked relevant questions

Legally privileged information cannot be used
No party’s treatment records can be used without voluntary written consent
Questions about complainant’s “prior sexual behavior or predisposition” are NOT relevant and must be excluded, UNLESS offered either 1) to prove someone else committed the alleged conduct, or 2) to prove consent, because it has to do with sexual behavior between complainant and respondent*

*Prior consent to past sexual conduct does not imply future consent

Decision-maker must determine relevance of questions as they are asked, and before they are answered

34 CFR § 106.46(b)(6)(i)

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Live Hearing

Presided over by Decision-maker [individual or group]
Must be direct, oral, live questioning of parties and witnesses, including cross-examination

May be facilitated by technology, as long as simultaneous
Parties may not directly ask questions; only advisors for parties
Advisors for parties must be able to ask opposing party and witnesses all relevant questions
If a party does not have an advisor, school must appoint one

If a party/witness will not submit to cross-examination, then Decision-maker cannot use any statements or evidence from that person in making decision
Hearing must be recorded (audio or film or transcript), and made available to all parties for inspection and review after hearing

34 CFR § 106.46(b)(6)(i)

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Live Hearing

Advisors Required—but Who?

The Complainant and Respondent must both have an advisor
Each has a right to select any advisor of their choice; may be an attorney (at their own expense) but does not have to be an attorney
If a party does not have an advisor, school must appoint one.
Advisor not required to do more than relay represented party’s question to the other party/witnesses
Advisors not required to be trained in any way
Potential options?

Student affairs professionals trained on Title IX
Academic affairs professionals trained on Title IX
Human Resources representatives (as applicable)

Recommend against appointing:

Someone with special access to Title IX investigation records
Attorneys from the school’s Office of Legal Counsel
Instructors/faculty members

34 CFR § 106.46(b)(6)(i)

The question about the advisors is a big departure, and it’s a bit strange. During the hearings, because the parties are not allowed to cross-examine each other, only advisors can cross-examine or question parties/witnesses, on behalf of the person they are advising. Each party can select an advisor, and that includes their own lawyer. But, if a party doesn’t find someone on their own, then the school must appoint an advisor for that person, to serve without any fee. Here, the regulations describe that schools have very broad discretion as to whom they will appoint as advisors, and the advisors really don’t need to be trained to do anything. They are not required to be “aligned” with their assigned party, and the party can’t object to the assigned advisor if they aren’t providing their own. The advisor may decide to see themselves as an “advocate” for their party and actively work with them to suggest questions or lines of inquiry. But the advisor could be nothing more than the conduit through which the party asks the questions he/she wants to ask during the hearing. The advisor is not required to bring anything to the table.

Your school will need to consider whom it may appoint as advisors, and make sure that the appointed individual is willing to do so. Your school may also want to think about whether it wants to offer any training to advisors—we think that a basic overview of the Title IX process would be helpful, even if not strictly required.

If the represented party is not satisfied with the outcome of the hearing or the grievance process, they cannot object that their assigned advisor was not satisfactory or did not “help” them enough during the hearing. Strictly speaking, despite the title of “advisor,” the regulations do not require the school-assigned advisor to be an advocate.

See 85 Fed. Reg. at 30341-42

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Live Hearing

Technology

Upon request of any party, must permit cross-examination to occur with the parties located in separate rooms with technology facilitating the ability of all participants to see and hear the person answering questions

**Testifying party must be seen and heard by all in real time, but testifying party does not have to be able to see all other parties
(i.e., if the Complainant is testifying, Complainant must have video/audio on, but Respondent does not have to be seen by Complainant)

Hearings must still be recorded, or have a transcript of all testimony created, including when technology is used
Ensure all staff have been trained on the technology in use
Ensure technology used does expose the testimony to anyone outside those participating in the hearing

34 CFR § 106.46(b)(6)(i)

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Opportunity to Question

For K-12 schools only, and only if there is no live hearing, then must provide an opportunity for each side to ask each other written questions:

After investigative report sent to each party, each party must have the opportunity to submit written, relevant questions that it wants from any other involved party or witness
School must facilitate written back-and-forth:

Must provide the answers to all the questions requested
Must allow for additional, limited follow-up questions from each party

Same rules about relevance as in previous slide

34 CFR § 106.46(b)(6)(ii)

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Decision-maker reviews investigative report, all evidence, all statements/answers from parties and witnesses during any live hearings or opportunity to question. ��Decision-maker weighs the credibility of all relevant evidence and statements.��Next phase: Determination regarding Responsibility. . .

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Determination Regarding Responsibility

Decision-maker applies the school’s chosen standard of evidence for Title IX investigations of sexual harassment:

Option 1: “preponderance of the evidence” standard (more likely than not)

Option 2: “clear and convincing” standard (highly and substantially likely)
School must choose one of these standards for ALL sexual harassment investigations—those involving just students, just employees, and both students and employees.

To make a Determination Regarding Responsibility, the Decision-maker will weigh the evidence according to the standard the school has chosen. There are two options, and the regulations allow schools to choose which standard they will employ. BUT the school has to apply the same standard in ALL cases—it cannot go back and forth.

The “preponderance of the evidence” standard means that it is “more likely than not” that the alleged conduct occurred. In layman’s terms, it’s saying there is at least a 51% probability that this occurred. This standard is common in civil law cases with alleged violations of civil rights, like Title VII. It’s the standard that was required for Title IX violations under the Department’s Obama-era guidance.

The “clear and convincing” standard means that it is “highly and substantially likely to be true” that the alleged conduct occurred, though not quite so high as the highest standard of “beyond a reasonable doubt” used in criminal cases. In layman’s terms, the “clear and convincing” standard is something like a 75-80% probability that the conduct occurred. It’s certainly a higher standard than the “preponderance of the evidence” standard.

Your school should carefully consider the implications of using each type of standard in the Title IX grievance process, and you will need to clearly indicate the standard you are using in your policy.

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Determination Regarding Responsibility

Decision-maker issues written determination regarding responsibility that includes:

Identification of allegations of sexual harassment that meet Title IX definition
Description of all procedural steps
Findings of fact supporting the determination
Conclusions regarding application of school’s Code of Conduct to the facts
Statement of, and rationale for, result as to each allegation and determination regarding responsibility
Any disciplinary sanctions imposed on Respondent
Any other remedies and supportive measures designed to restore/preserve equal access for Complainant
Procedures and permissible bases for appeal

School must provide written determination to parties simultaneously
Title IX Coordinator implements remedies / coordinates disciplinary sanctions

34 CFR § 106.46(b)(7)

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Appeals

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Appeals

Parties can appeal:

The determination of responsibility, OR
School’s decision to dismiss complaint

Bases for appeal:

Procedural irregularity that affected the outcome
New evidence not reasonably available previously that could affect outcome
That Title IX Coordinator OR Investigator(s) OR Decision-maker(s) had a bias or conflict of interest that affected the outcome

Generally, either for or against complainants or respondents, OR
Specifically, either for or against an involved party

Another basis for appeal allowed by the school, as long as it’s equally available to either party

34 CFR § 106.46(b)(8)

We’ve almost made it to the end! After the Decision-maker has rendered the Determination regarding Responsibility, both parties have the opportunity to appeal the outcome.

The regulations spell out certain required bases for appeal. For all of the bases of appeal, there is a caveat noting that the deficiency in the process would have had to affect the outcome. For example, if there is a minor procedural irregularity—someone was supposed to have been given 10 days to respond but they argue they only had 9 days because a holiday fell during that span—then there’s probably no valid basis for an appeal. If a new witness comes forward to make statements, that witness would likely have to introduce something new that previous witnesses had not already claimed. These bases for appeal are required in the regulations and are equally available to either party.

The school might opt to include additional bases for appeal, as long as they are available equally to both parties. Consider your other procedures and appeals processes in other matters—you may want your Title IX policies to include similar bases for appeals as other matters.

For example, you may wish to allow the prevailing Complainant to appeal if the sanctions applied to the Respondent do not match the severity of the offense or the proposed remedies do not restore equal access to the Complainant. For example, if the Decision-maker rules in favor of the Complainant, and recommends only a one-week suspension for a very serious offense, but the Complainant believes the sanction does not sufficiently restore equal access to education, you may want to allow the Complainant to appeal the sanctions imposed. This would be allowed even if the Complainant “wins.” But the regulations do not require this type of appeal.

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Appeals

School must do following for an appeal:

Notify the other party in writing when an appeal is filed and on what basis
Implement appeals procedure equitably
Find new Appeals Decision-maker who

Has not been involved in the grievance process thus far, and
Has been trained and is neutral/impartial

Give both parties a reasonable, equal opportunity to submit a written statement about the outcome
Issue a written decision describing the result and rationale of the appeal
Provide decision simultaneously to all parties

34 CFR § 106.46(b)(8)

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Other Matters

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Recordkeeping

The Title IX Coordinator must keep records for 7 years of:

Formal Complaints, including

Supportive measures
Basis for school’s conclusion that its response was not deliberately indifferent
Documentation of measures designed to restore or preserve equal access
If no supportive measures provided, documentation reasons why response was not deliberately indifferent [i.e., clearly unreasonable in light of known circumstances]

Investigations
Recordings/transcripts of hearings
Determinations regarding responsibility
Disciplinary sanctions for Respondent, remedies provided Complainant
Appeals
Informal Resolutions

34 CFR § 106.46(b)(10)

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Training

All training materials used to train

Title IX Coordinator
Investigator(s)
Decision-maker(s)
Appeals Decision-maker(s)

Training must include:

Regulations
How to use technology
How to avoid prejudgment
How to serve impartially
How to determine issues of relevance of questions or evidence

Training materials must be kept for seven years AND posted publicly to school’s website for public review and scrutiny.

34 CFR § 106.46(b)(10)(i)(D)

All your training materials must be posted publicly online and available for scrutiny to the public. You can bet that in the event of an especially contentious Title IX lawsuit brought against your school, they will be reviewed by opposing counsel and challenged for their consistency with the Title IX regulations. The regulations also require that you keep training materials on file for seven years, so even if you replace and update them regularly, the older versions will need to be retained and accessible. The training also has to include more than just the regulations themselves—you have to train your staff on the technology you will use to facilitate live hearings (if this applies to you in any cases), how to avoid prejudgment and partiality, and how to determine issues of relevance of questions or evidence.

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Retaliation

Retaliation is prohibited against anyone involved in a Title IX complaint, investigation, or grievance procedure.

“The exercise of rights protected under the First Amendment does not constitute retaliation prohibited”

School can charge someone with a Code of Conduct violation for making a “materially false statement in bad faith” during grievance proceeding.

34 CFR § 106.71

Finally, just a quick note about retaliation. Like any complaint procedure, retaliation by the school in any way against a Complainant and/or a witness or a Respondent is prohibited. Likewise, the school cannot discipline someone for exercising their First Amendment rights to talk about the process and express their opinions about it. For example, if a student who is a Complainant in a Title IX grievance procedure posts publicly on their personal Facebook page that they are upset about how your school is handling their investigation, you cannot restrict their speech on this issue. Anyone involved in the process is perfectly free to express their opinions about it. HOWEVER, the matter becomes more tricky if someone makes statements online against another person involved. For example, if the Complainant posts “John Smith is a rapist, stay away from him” online and the posts spread around the school, this is a very tricky situation. This post would not qualify as harassment under Title IX’s regulations, but of course John Smith may accuse the Complainant of defamation and will probably want you to do something about it. [Attorneys may provide more guidance about what to do in this type of situation, depending on the circumstances.]

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School Board Policy Integration

Consider Policy Revisions to Align with Title IX Regulations to:

Section 2:260 – Uniform Grievance Procedure
Section 2:265 – Title IX Grievance Procedure
Section 7:10 – Equal Educational Opportunities
Section 7:20 – Harassment of Students Prohibited

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Next Steps for Schools:

Decide who will fulfill the various roles
Update policies and procedures in accordance with the Regulations

Who needs to be involved?
Approval by the Board? Committee? Unions?

Train staff
Communicate information to all stakeholders

Update website, handbooks, etc.

For any questions that arise, consult experts or counsel

So now what will you need to do to implement the new Title IX regulations?

First, you will need to determine who will fulfill the roles required in the Title IX grievance procedure. You probably already have your Title IX Coordinator, but you will need to make sure there is at least one other person trained to be an investigator. If the Title IX Coordinator signs a formal complaint, then he/she cannot be the investigator. There is also the possibility that the Title IX Coordinator, by virtue of a personal relationship, might need to recuse him or herself from an investigation, so that there is no claim of bias on either side. Next, you will need at least one person to serve as a Decision-maker, but again, it would be prudent to have more than one person capable of fulfilling this role, in case there is a situation where someone cannot serve impartially due to a personal relationship. You might also want to have multiple people trained as Decision-makers to serve on a panel who would vote on the Determination regarding Responsibility. In this case, odd-numbered panels are best, so that the panel could not be split evenly. Finally, you will need at least one person to serve as the Appeals Decision-maker, but you may want to have a backup for the same reasons regarding impartiality.

Next, you need to revise your policies and procedures to ensure they align with everything we’ve talked about today. The regulations have some clearly-defined requirements that are easy to translate into procedure. But there are numerous decision points that you might need to take to your Board—for example, as a K-12 school will you conduct live hearings or just written opportunities to question or a combination of both, depending on the situation? For colleges/universities, who will be your mandatory reporters for Title IX purposes? For all schools, which standard of evidence will you apply? What would your informal resolutions look like?

Next, you need to train your employees regarding their specific role in this process. All employees of K-12 schools will need to know the basics of what constitutes sexual harassment under Title IX and their responsibility to report any suspected sexual harassment to the Title IX Coordinator. All Title IX Coordinators, Investigators, Decision-makers, and Appeals Decision-makers must be trained on the specifics of the legal definitions, the formal complaint, and grievance procedures.

You’ll need to update your websites and your Student and Employee Handbooks to make sure the new policies are available to everyone.

As you move through this process, if you have specific questions, please don’t hesitate to reach out to counsel!

But don’t forget, these must be ready to go by August 14. That’s not a lot of time! Especially given the pressures of the pandemic. But that’s what the Department has mandated.

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@darcykriha

@nathankriha

@krihabouceklaw

krihaboucek.com

Questions?

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