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Title IX Final Regulations:�Coordinator, Investigator, Decision-Maker and Informal Resolution Facilitator Training

Region One School District�January 11, 2022

www.ctschoollaw.com

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Title IX of the �Education Amendments of 1972

“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 educational program or activity receiving Federal financial assistance.”

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Title IX: The Basics

Connecticut law also protects individuals from discrimination on the basis of sexual orientation and gender identity/expression

Applies to programs or activities operated by schools that receive federal financial assistance, including elementary and secondary schools, colleges, universities, whether public or private.
Prohibits schools receiving federal funds from discriminating on the basis of sex.

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Denial of Equal Opportunity

There are three main areas where a school may face a Title IX student issue:

Equal opportunities in sports

Access to facilities based on gender identity

Denial of access to education due to sex discrimination, the definition of which includes sexual harassment and sexual assault

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Title IX Enforcement

OCR

Federal DOE agency responsible for ensuring equal access to education and promoting educational excellence through enforcement of civil rights
Investigates allegations of discrimination and obtains remedies for complainants to address discrimination

Courts

Federal government (DOJ)
Individual legal claims
Class claims

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New Final Regulations

On May 6, 2020 the United States Department of Education issued the 2,033 page document that amended the regulations implementing Title IX of the Education Amendments of 1972 and which contained the new Final Regulations.
Final Regulations became effective August 14, 2020.
New Title IX regulation holds schools accountable for failure to respond equitably and promptly to sexual misconduct incidents.
These Final Regulations, unlike past guidance issued from the Office of Civil Rights (OCR), have the full effect of law and override any past guidance.
Final Regulations are a significant change to how Title IX is managed and include extensive procedural requirements.

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New Final Regulations – What’s New?

A definition of sexual harassment

A duty for schools to only investigate complaints of conduct that occurred within their program or activity

Adoption of an “actual knowledge” and “deliberate indifference” standard

A detailed grievance process for formal complaints of sexual harassment – specific roles for administrators in grievance process

Under the Final Regulations, if a school district has actual knowledge of sexual harassment in a district education program or activity, the district must respond promptly in a manner that is not deliberately indifferent.

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Key Personnel

Title IX Coordinators

Investigators

Decision-makers

Advisors

Informal Resolution Facilitators

Appeal Decision-Makers

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Grievance Process v. Procedure

Complaints of sex discrimination involving allegations of sexual harassment

Complaints of sex discrimination that DO NOT involve sexual harassment

Grievance Procedure

Grievance Process

This process is outlined in �great detail in �the Final Regulations

Districts have more flexibility �in the details of the �grievance procedure, so long as it is prompt and equitable

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“Sex Discrimination”

Increased

Flexibility

“

occurs when a person, because of the person’s sex, is denied participation in or the benefits of any education program or activity receiving federal financial assistance.

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“Sexual Harassment”

Increased

Flexibility

“

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

An employee of the District conditioning the provision of an aid, benefit, or service of the District on an individual’s participation in unwelcome sexual conduct (i.e., quid pro quo);
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 programs or activities; or
“Sexual assault”* (20 U.S.C. 1092(f)(6)(A)(v)), “dating violence”* (34 U.S.C. 12291(a)(10)), “domestic violence”*� (34 U.S.C. 12291(a)(8)) or “stalking”* (34 U.S.C. 12291(a)(30)).

*These definitions can be found in Appendix A of the Shipman & Goodwin model Administrative Regulations.

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“Actual Knowledge”

If any employee is on notice of sexual harassment, the employee must alert the administration as promptly as possible.

Increased

Flexibility

“

In elementary and secondary schools, the District is deemed to have actual knowledge when notice of sexual harassment or allegations of sexual harassment:

is given to the Title IX Coordinator
is given to any official of the District
is given to any employee of an elementary or secondary school.

The District must respond to “actual knowledge” of sexual harassment.

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“Deliberate Indifference”

Be prompt

Treat the parties equitably

Include offering supportive measures to the complainant and ensuring that the Title IX Coordinator contacts the complainant to discuss supportive measures (even if no formal complaint has been filed)

Consider the complainant’s wishes with regard to supportive measures

Explain the process for filing a formal complaint and the grievance process

Follow the grievance process before making a responsibility determination and before imposing any disciplinary sanctions

Implement remedies designed to restore or preserve educational access

Once the District has “actual knowledge” of sexual harassment, it must respond in a way that is not “deliberately indifferent.” Response must:

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More Definitions

Increased

Flexibility

“

Complainant means an individual who is alleged to be the victim of conduct that could constitute sexual harassment.

Respondent means an individual who has been alleged to be the perpetrator of conduct that could constitute sexual harassment.

Formal complaint means a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the Administration investigate the allegation of sexual harassment.

A “document filed by a complainant” means a document or electronic submission that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint.

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More Definitions

Increased

Flexibility

“

Employee means:

a teacher, substitute teacher, school administrator, school superintendent, guidance counselor, school counselor, psychologist, social worker, nurse, physician, school paraprofessional or coach employed by the District or working in a public elementary, middle or high school; or
any other individual who, in the performance of his or her duties, has regular contact with students and who provides services to or on behalf of students enrolled in a public elementary, middle or high school, pursuant to a contract with the District.

This definition is taken from state law and is not included in the Final Regulations.

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Types of Sexual Harassment

Sexual assault, dating violence, domestic violence, stalking

Unwelcome conduct so severe, pervasive and offensive that �it effectively denies a person equal access to the District’s education programs or activities

Quid Pro Quo

“This for That”

Important Note: Definition of sexual harassment under Title VII (employees) and Connecticut law is broader (more protective) than this new Title IX definition.

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Quid Pro Quo

“This for That”

When a teacher or other school employee conditions an educational decision or benefit on the student’s submission to unwelcome sexual conduct.

Submission to such conduct may either be made �explicitly or implicitly.
If this occurs, it does not matter whether the student �resists and suffers the threatened harm or submits to �and avoids the threatened harm.

Quid pro quo harassment can also occur when a District employee conditions a benefit or service on another employee’s submission to unwelcome conduct.

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Severe, Pervasive, Offensive Unwelcome Conduct

When a teacher, school employee, other student, or third party engages in unwelcome conduct that is 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.

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Sex-Based Offenses

Increased

Flexibility

“

“Sexual assault” (20 U.S.C. 1092(f)(6)(A)(v)), “dating violence” (34 U.S.C. 12291(a)(10)), “domestic violence” (34 U.S.C. 12291(a)(8)) or “stalking” (34 U.S.C. 12291(a)(30)).

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Examples of Sexual Harassment

Unwanted sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature including:

Statements or other conduct indicating that a student’s submission to, or rejection of, sexual overtures or advances will affect the student’s grades and/or other academic progress.
Unwelcome attention and/or advances of a sexual nature, including verbal comments, sexual invitations, leering and physical touching.
Display of sexually suggestive objects, or use of sexually suggestive or obscene remarks, invitations, letters, emails, text messages, notes, slurs, jokes, pictures, cartoons, epithets or gestures.
Touching of a sexual nature or telling sexual or dirty jokes.
Making sexual comments, jokes or gestures (written or verbal).
Distributing sexually explicit images such as drawings or pictures, or written materials (including cyber-distribution).
Transmitting or displaying emails or websites of a sexual nature.
Calling students sexually charged names.
Spreading sexual rumors.

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Title IX Jurisdiction

The complainant must be a current student or employee or attempting to enroll in the District’s programs

Has student dropped out because of the harassment and wants to participate?

Covers sexual harassment that happens in a school’s “education program or activity”
Must occur in the United States
Includes sexual harassment by or against students or employees

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Scope of District’s Education Programs and Activities

School buildings/�on campus

At school, on school bus, on field trips, at school-sponsored activities (including athletics), academic conferences, etc.

Distance learning

For purposes of investigations and complaints of sexual harassment, education program or activity includes locations, events, or circumstances over which the District exercises substantial control over the context in which the sexual harassment occurs and the person accused of committing harassment.

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Online Sexual Harassment

A student sexually harassing another student online while off campus and not participating in the school’s programming is not covered under the new Final Regulations and there is no jurisdiction under Title IX.

Query: What if the off campus conduct is the subject of alleged harassment that occurs within the school?

The District may be required to investigate the matter under the state definition of sexual harassment or different policies (i.e. student discipline, bullying, etc.), even if not required by Title IX.

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Reporting

Any person may report sex discrimination, including sexual harassment, whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment.

All employees of the District have an obligation to report instances of sexual harassment.

Only conduct that is alleged to have occurred against a current student or employee, or an applicant, and in the United States, falls under Title IX.

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General Response to Sexual Harassment

If the District has actual knowledge of sexual harassment in a District education program

or activity…

The District is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of known circumstances.

The District must respond promptly and in a manner that is not deliberately indifferent.

The District’s response must treat complainants and respondents equitably by offering supportive measures to the complainant and by following the grievance process outlined here before the imposition of any disciplinary sanctions or other actions that are not supportive measures.

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Grievance Process for Allegations of Sexual Harassment

District receives notice or actual knowledge of sexual harassment

District offers supportive measures

Formal complaint is filed by the complainant or signed by the Title IX Coordinator

Investigation

Decision Regarding Responsibility

Appeal

Informal Resolution Process

If no agreement is reached

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Principles Under the New Final Regulations

Focus on Due Process

Treat complainant and respondent equitably
Fairness to complainant and respondent
Formal grievance process must be followed before discipline can be imposed

No Bias – Must be Neutral

Between men/women
Between complainants/respondents
Not based on stereotypes

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Title IX Coordinator: Obligations

The District must designate and authorize at least one employee to coordinate its efforts to comply with its responsibilities under Title IX. This is the “Title IX Coordinator.”
This specific title must be used to identify this individual.

Title

Must be trained on Title IX policies and procedures.
All training materials must be posted on the District’s website.

Training

Monitor the District’s compliance with Title IX.
Ensure appropriate education and training is provided.
Coordinate the response to all reports of sex discrimination and sexual harassment.

Obligations

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Title IX Coordinator: �Responsibilities within the Grievance Process

Contact each complainant (defined as a person who is alleged to be the victim of sexual harassment) to discuss supportive measures and inform the complainant of the availability of these measures with or without filing a formal complaint

Consider the complainant’s wishes regarding supportive measures

Explain to the complainant the process for filing a formal complaint

Follow grievance process before imposing disciplinary sanctions if respondent is found responsible

If respondent is found responsible, then effectively implement remedies for the complainant, designed to restore or preserve the complainant’s equal educational access

Must be impartial, unbiased, and free from conflicts

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Supportive Measures

The Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures, consider the complainants wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without filing a formal complaint, and explain to the complainant the process for filing a formal complaint.

Non-disciplinary

Non-Punitive

Individualized �(as appropriate and reasonably available)

Without fee �(to complainant or respondent)

Before or after filing of formal complaint or where no formal complaint is filed

Supportive Measures

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Supportive Measures

The Title IX Coordinator will keep supportive measures confidential unless it impairs the ability to provide the supportive measures (i.e. a no-contact order).

Supportive Measures

Supportive Measures may include

Counseling

Deadline extensions

Course-related adjustments

Schedule Modifications (work or class)

Mutual restrictions on contact between parties

Increased security

Increased monitoring

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Emergency Removal

While the District must go through the grievance process before imposing any disciplinary sanctions or other actions that are not supportive measures, the District can remove a student respondent on an emergency basis.

The District must undertake an individualized safety and risk analysis and determine that an immediate threat to the physical health or safety of any student or other individual arising from the allegation justifies removal.

The respondent must be provided with written notice and an opportunity to challenge the decision immediately following removal.

This does not change any rights students have under the IDEA, Section 504, or the ADA.

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Emergency Removal/Administrative Leave

Similarly, the District may place an employee respondent on administrative leave during the pendency of the grievance process.

This does not change any rights employees have under Section 504 or the ADA.

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“Formal Complaint”

Increased

Flexibility

“

Formal complaint means a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the recipient investigate the allegation of sexual harassment.

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Formal Complaint

The filing of a formal complaint triggers the beginning of the formal grievance process.

Inform Complainant

Ensure Jurisdiction under Title IX

Signing of Formal Complaint

Title IX Coordinator will inform complainant about the right to file a formal complaint
But, will not encourage or discourage a person to file a formal complaint

At the time of filing, the complainant must be participating or attempting to participate in the District’s education program or activity
Formal complaints can be filed by a student’s parent or the Title IX Coordinator.

When the Title IX Coordinator signs a formal complaint, he/she is NOT the complainant or otherwise a party

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When Should Title IX Coordinator Sign a Formal Complaint?

There may be times when a complainant does not want to file a formal complaint. The Title IX Coordinator may respect the complainant’s wishes if doing so is not clearly unreasonable in light of the known circumstances.
If the Title IX Coordinator deems it clearly unreasonable in light of the known circumstances to not proceed with the formal grievance process, the Title IX Coordinator must sign a formal complaint. Thus, the formal grievance process would begin.

Query: Under what circumstances may a �decision not to sign a complaint be considered “clearly unreasonable?”

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Grievance Process: Basic Requirements

The filing of a formal complaint is the first step in the formal sexual harassment grievance process. The process must treat complainants and respondents equitably by:

Providing Remedies to �Complainant if/when �Respondent is Found Responsible

Remedies must be designed to restore or preserve equal access to the District’s education program or activity
Remedies may include supportive measures; however, remedies need not be non-disciplinary or non-punitive and need not avoid burdening the respondent

Disciplinary Sanctions ONLY�Following Grievance Process

Grievance process must be followed before any imposition of any disciplinary sanctions or other actions that are not supportive measures against a respondent
Grievance process must be reasonably prompt
Presumption of innocence

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Grievance Process: Basic Requirements

Evaluation of Evidence

The grievance process requires an evaluation of all relevant evidence – including both inculpatory and exculpatory evidence.
Credibility determinations may not be based on a person’s status as a complainant, respondent, or witness.

Without Bias or �Conflict of Interest

The designated Title IX Coordinator, investigators, decision-makers, and informal resolution facilitators must not have a conflict of interest or bias against complainants or respondents generally, or an individual complainant or respondent

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“Conflict of Interest”

Increased

Flexibility

“

A conflict of interest occurs when it is proven that the Title IX Coordinator, investigator(s), and/or decision-maker(s) have personal, financial and/or familial interests that affected the outcome of the investigation.

Definition of “conflict of interest” is not included in the Final Regulations. This definition is taken from other areas of the law and is intended to be illustrative of the concept.

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“Bias”

Increased

Flexibility

“

Bias occurs when it is proven that the Title IX Coordinator, investigator(s), and/or decision-maker(s) demonstrate actual bias, rather than the appearance of bias. Actual bias includes, but is not limited to, demonstrated personal animus against the respondent or the complainant and/or prejudgment of the facts at issue in the investigation.

Definition of “bias” is not included in the Final Regulations. This definition is taken from other areas of the law and is intended to be illustrative of the concept.

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Grievance Process: Evidentiary Standard

Preponderance

Clear and Convincing

More highly probable to be true than not

Higher standard

Clear and convincing evidence

More likely than not

Preponderance of the evidence standard

Districts may choose one of these two standards to be used to determine responsibility, but the same standard must be used for all complaints of sexual harassment, no matter if it is against a student or employee

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Notice of Allegations

Upon receipt of a formal complaint of sexual harassment, the District must provide a written notice to the known parties and provide the parties with a copy of the grievance process.

If, in the course of an investigation, the District decides to investigate allegations about the complainant or respondent that are not included in the notice, the District must provide an additional notice.

The information to be included in the notice can be found in the Final Regulations
Sample notice is included in the Shipman & Goodwin LLP model administrative regulations

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Dismissal of a Formal Complaint

The Title IX Coordinator must dismiss any formal complaint that

Would not constitute sexual harassment (under the definition in the Final Regulations) even if proved,
Did not occur in the District’s education program or activity, or
Did not occur against a person in the United States.

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Dismissal of a Formal Complaint

The Title IX Coordinator may dismiss a formal complaint or any allegations therein, under the following circumstances:

The complainant notifies the Title IX Coordinator in writing that they would like to withdraw the formal complaint or any allegations therein,
The respondent is no longer enrolled in or employed by the District, or
Specific circumstances prevent the District from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.

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Dismissal of a Formal Complaint

Upon a dismissal for any �reason, the District must promptly and simultaneously send written notice of the dismissal and reason(s) for it to each party. Either party can appeal the dismissal.

A dismissal does not preclude �action by the District under the Student Discipline policy, Code of Conduct for students and/or employees, or any other applicable rule, policy, and/or collective bargaining agreement.

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Investigation

Burden of proof

Equal opportunity for parties

No restrictions on either party

Upon a formal complaint being filed, one or more investigators will be assigned to gather relevant evidence and draft an investigative report.

Burden of proof and of gathering evidence sufficient to reach a responsibility determination rests on the District and not on the parties.
The District must obtain voluntary, written consent (or consent of a parent/guardian) to obtain medical records to be used in the grievance process.

The investigator(s) must provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.

The investigator(s) may not restrict the ability of either party to discuss the allegations under investigation or to gather and present evidence.

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Investigation: Right to an Advisor

Both the complainant and the respondent must have the same opportunities to have others present during any part of the grievance process, including an opportunity to be accompanied by an advisor of their choice. This person can be, but is not required to be, an attorney.

The District 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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Investigation

Date

Time

Location

Participants

For any meeting or investigative interview, the investigator(s) must provide a written notice to any party whose participation is invited or expected. The notice must include:

Purpose

The investigator(s) must provide sufficient time for the party to prepare �to participate.

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Conducting a Thorough Investigation

Conduct Investigation Interviews�

Interview of the parties

What happened? When did it happen? Where did it happen? Have you talked to others about what happened? Did you write down what happened?

Witness interviews/statements

Do you know what is alleged to have happened? Where were you when it happened? Do you know the respondent and/or complainant? For how long and how would you describe your relationship with them (friend, acquaintance, etc.)?

Listen carefully to answers. Ask follow up questions.
Start with broad, general questions, then narrow the questions. Avoid yes/no questions.

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Conducting a Thorough Investigation

Notify parents

Review video footage, documents and other physical evidence�

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Investigation: Review of Evidence

The investigator(s) must provide both parties an equal opportunity to inspect and review any and all evidence obtained as part of the investigation that is directly related to the allegations in the formal complaint.
This includes any evidence upon which the investigator(s) does not intend to rely and any inculpatory or exculpatory evidence.
The investigator(s) must send to each party (and the party’s advisor, if any), the evidence subject to inspection and review in either electronic format or hard copy.
The parties must have at least 10 days (10 school days in the Shipman & Goodwin model Administrative Regulations) to submit a written response.
The investigator(s) must consider these written responses prior to completing the investigative report.

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Investigation: Investigative Report

The investigator(s) must create an investigative report that fairly summarizes the relevant evidence and must send the report to each party (and the party’s advisor, if any) in electronic format or hard copy.
Each party can then provide a written response to the investigative report.

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Decision-Maker

The District shall appoint a decision-maker(s), who must be someone other than the Title IX Coordinator or the investigator(s).
The investigator(s) and the decision-maker(s) shall not discuss the investigation’s facts and/or determination while the formal complaint is pending.

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Live Hearing - Optional

For example, the Title IX Coordinator may determine it is appropriate to hold a live hearing where the students are above a certain age, where the students are in high school, or where both parties request or consent to a hearing.

Upon completion of the investigative report, the District may offer, but is not required to offer, a hearing.
If the District chooses to hold a hearing (live or otherwise), the Final Regulations provide K-12 school districts significant discretion as to how to conduct such a hearing.

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Decision-Maker – Written Questions

After the investigative report is sent to the parties, the decision-maker(s) must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness.

The opportunity to submit written questions must be afforded to the parties even if the District provides a live hearing.

The decision-maker(s) must then provide each party with the answers and allow for additional, limited follow-up questions from each party.
The decision-maker(s) must explain to the party proposing the question any decision to exclude a question as not relevant.

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What is Relevant Evidence

Investigators preparing an investigative report and decision-makers allowing questions must determine if the evidence is relevant.

Evidence is relevant if it has a tendency to make something more or less probable than it would be without the evidence and it is of consequence in determining the question of sexual harassment.

Relevance is broad and can include questions about the who, what, when, and how of the allegations, as well as issues related to motive or bias, among others.
Relevant evidence includes both exculpatory and inculpatory evidence (i.e. must look at evidence that is both favorable and unfavorable to any party).

Evidence that constitutes or seeks disclosure of information protected under a legally recognized privilege �(i.e. attorney-client or doctor-patient) �cannot be required, allowed, or relied upon unless �the person holding the privilege has waived the privilege.

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Rape Shield

Investigators and decision-makers are not allowed to ask questions or seek evidence about a complainant's prior sexual acts because such acts are deemed irrelevant. The parties may not ask these questions of each other.

Unless… the evidence is used to prove:

someone other than the respondent �committed the alleged offense, or
specific incidents of past sexual behavior �between the complainant and �respondent and is offered �to prove consent.

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Consent�

Title IX does not define “consent”
Department of Education intentionally silent on this issue. Districts must provide a definition of consent and use the definition consistently.

Coordinators, investigators, decision-makers must be trained on the District’s definition of consent.

Definition may impact whether sexual harassment occurred and whether certain evidence is admissible under Rape Shield.

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Affirmative Consent�

Affirmative Consent means an active, clear and voluntary agreement by a person to engage in sexual activity with another person.
When determining whether consent for sexual activity was given, consider the following:

Was consent given by all persons who engaged in the sexual activity?
Consent may be revoked at any time.
It is the responsibility of each person to ensure that he/she has the consent of all persons engaged in the sexual activity throughout the entirety of the sexual activity.
The existence of a prior or current dating/sexual relationship between the parties, in and of itself, is not determinative of consent.

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Affirmative Consent�

It is NOT a valid excuse that the respondent:

believed they had consent because the respondent was intoxicated or reckless or failed to take reasonable steps to ascertain consent; or
believed they had consent if the respondent knew or should have known that the complainant was unable to consent because the complainant was unconscious, asleep, incapacitated because of drugs or alcohol, or otherwise unable to communicate; or
believed they had consent if the respondent knew or should have known that the complainant was unable to consent due to the age of the complainant or the age difference between the parties.

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Decision-Maker: Responsibility Determination

Decision-makers must weigh the relevant evidence and decide whether it meets the standard of evidence to demonstrate that sexual harassment occurred.

Preponderance of the evidence standard = more likely than not responsible.
Clear and convincing evidence = highly probable to be true

The decision must be based on an objective evaluation of the evidence, and the decision-maker must be able to explain his/her rationale based on the evidence.

Decision-makers need to use independent judgment and be free from conflict of interest and bias.

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Decision-Maker: Responsibility Determination

The decision-maker(s) will issue a written determination regarding responsibility. The written determination will include:

identification of the allegations potentially constituting sexual harassment;

a description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held (if applicable);

findings of fact supporting the determination;

conclusions regarding the application of the District’s code of conduct (student discipline policy) to the facts;

a statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the District will impose on the respondent, and whether remedies designed to restore or preserve equal access to the District’s education program or activity will be provided by the District to the complainant; and

the District’s procedures and permissible bases for the complainant and respondent to appeal.

The written determination will be provided to both parties simultaneously.

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Decision-Maker: Disciplinary Sanctions

Student Respondents

Student respondents found responsible may be subject to discipline up to and including expulsion.

Employee Respondents

Employee respondents found responsible may be subject to discipline up to and including termination of employment.

Other Respondents

Other respondents may be subject to exclusion from the District’s programs, activities and/or property.

Criminal Referrals

In appropriate circumstances, the District may make a criminal referral.

Remedies

Remedies must be designed to restore or preserve equal access to the District’s education programs or activities.

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Appeals

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;

Procedural irregularity that affected the outcome of the matter; or

The Title IX Coordinator, investigator(s), and/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.

Either party can appeal from a responsibility determination or a dismissal of a formal complaint on the following bases:

The District may add other bases for appeal so long as they are offered equally to both parties.

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Appeals

Provide notice to the other party in writing and implement appeal procedures equally for both parties;

Ensure that the decision-maker(s) for the appeal is not the investigator(s), Title IX Coordinator, or decision-maker(s) for the responsibility determination;

Give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome;

When an appeal is filed, the District must:

Supportive measures for either or both parties may be continued throughout the appeal process.

Issue a written decision describing the result of the appeal and the rationale for the result; and

Provide the written decision simultaneously to both parties.

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Informal Resolution Process

Provide parties written notice disclosing allegations

Note requirements of informal resolution process

At any time prior to reaching a responsibility determination, the District has the option of suggesting to the parties an informal resolution process, such as mediation, to resolve the formal complaint. The District is not required to offer this process. Prior to facilitating an informal resolution to a formal complaint, Title IX Coordinator will:

Note any consequences from participating in the informal resolution process

Obtain voluntary, written consent from both parties to engage in informal resolution

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Informal Resolution Process

The informal resolution facilitator must be someone other than the investigator or decision-maker (if already assigned) and must be free from conflicts of interest, bias, and must serve impartially.
May be the Title IX Coordinator
Prior to agreeing to any resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint.
If a satisfactory resolution is reached through this informal process, the matter will be considered resolved. If these efforts are unsuccessful, the formal grievance process will continue.

NOTE: This process is not available to resolve a formal complaint that an employee sexually harassed as student.

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How To Serve Impartially

NOTE: Different treatment of complainants and respondents due to sex-based stereotypes about how men and women behave with respect to sexual violence violates Title IX.

Everyone designated as an investigator, decision-maker, appeal decision-maker, informal resolution facilitator, or Title IX Coordinator must serve impartially and must avoid prejudgment of the facts at issue, conflicts of interest, and bias.
Investigators and decision-makers cannot evaluate or collect evidence in a way that is based on stereotypes or that favors complainants over respondent or men over women

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Retaliation

Retaliation against any individual who complains of sexual harassment is strictly prohibited. The District must take actions designed to prevent retaliation as a result of filing a complaint. Complaints alleging retaliation may be filed according to the grievance procedures for sex discrimination.

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Record Keeping

The District must maintain for a period of seven (7) years records of:

Each sexual harassment investigation including any determination regarding responsibility, any disciplinary sanctions imposed on the respondent, and any remedies provided to the �complainant designed to restore or preserve �equal access to the District’s education program �or activity;
Any appeal and the result therefrom;
Any informal resolution and the result from that�resolution; and
All material used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process. The District will make these training materials publicly available on its website.

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Record Keeping

If the District has actual knowledge of sexual harassment in an education program or activity of the District, and for any report or formal complaint of sexual harassment, the District must create and maintain for a period of seven (7) years records of any actions, including any supportive �measures, taken in response to a report �or formal complaint of sexual harassment.

The District must document the basis for its �conclusion that its response was not deliberately �indifferent, and document that it has taken �measures designed to restore or preserve equal access to the District’s education program or activity. If the District does not provide a complainant with supportive measures, then the District must document the reasons why such a response was not clearly unreasonable in light of the known circumstances.

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Scenario:

A second grade student kisses another second grade student on the cheek on the playground.

How do you respond?

What information do you want to know?

Is this sexual harassment?

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Scenario:

On numerous occasions over a period of several months, an eighth-grade student touches another student from behind in the lunch line and makes sex-based jokes, remarks and gestures.

How do you respond?

What information do you want to know?

Is this sexual harassment?

Is it bullying?

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Scenario:

A female student complains that a male student (1) hikes his shorts up in gym class so that his private parts are exposed; (2) stands up on his chair in class so that his back side is close to her face; (3) plays an inappropriate and sexual song in Spanish class that makes her uncomfortable; and (4) throws his body on her and other students while playing tag at recess. The female and male student are friends and sit together, voluntarily, every day at lunch.

How do you respond?

What information do you want to know?

Is this sexual harassment?

Is it bullying?

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Scenario:

Throughout the boys’ varsity lacrosse season, the team captain makes sex-based remarks toward another member of the team, calling the student “gay” and “queer.” These names are also written in the bathroom stalls in the locker room. The victim complains to one of the assistant coaches. The assistant coach tells the victim that the captain’s behavior is just “boys being boys” and reminds the victim that he needs to “toughen up” to play varsity lacrosse. The victim subsequently quits the team.

How do you respond?

What are appropriate next steps for the students? For the assistant coach?

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Scenario:

Parents of student in your school recently disclosed to the guidance counselor that their daughter was sexually assaulted off campus by a male student at your school. The counselor encourages the filing of a police report, refers the student to rape counseling, and provides a waiver for all final exams. The counselor also informs the principal. Other students in the school learn about the report and begin to harass the victim at school and on social media. The counselor is able to identify one of the alleged harassers. The parents and student are not informed of any investigation or the outcome of any review of the matter by any district personnel.

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Did the district handle this appropriately?

Is this harassment?
If yes, what type of harassment?
Is this bullying? Teen dating violence?
Assess the counselor’s actions – what, if anything, would you do differently?
Assess the principal’s actions – what, if anything, would you do differently?

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Connecticut Bullying Law

Connecticut | New York | Washington, DC | www.shipmangoodwin.com

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2019 Changes to Bullying Law Effective July 1, 2021 – Public Act 19-166

No longer a requirement that both the alleged perpetrator and alleged victim be students attending school in the same district.
Removes requirement that the act be “repetitive”
Establishes a new harassment-like standard, which requires that the act be “severe, persistent, or pervasive.”

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“Bullying” in Connecticut

Increased

Flexibility

“

An act that is direct or indirect and severe, persistent or pervasive, which (A) causes physical or emotional harm to an individual, (B) places an individual in fear of physical or emotional harm, or (C) infringes on the rights or opportunities of an individual at school.

This new definition was part of changes to the bullying law in 2019

and became effective on July 1, 2021

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“Bullying” includes:

A written, oral or electronic communication or physical act or gesture

based on any actual or perceived differentiating characteristics, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity or expression, socioeconomic status, academic status, physical appearance, or mental, physical, developmental or sensory disability, or by association with an individual or group who has or is perceived to have one or more of such characteristics.

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“Cyberbullying”

Increased

Flexibility

“

Cyberbullying is explicitly defined as “…any act of bullying using the internet, interactive and digital technologies, cellular mobile telephone or other mobile electronic devices, or any electronic communications.”

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“Teen Dating Violence”

Increased

Flexibility

“

Teen dating violence means “any act of physical, emotional or sexual abuse, including stalking, harassing and threatening, that occurs between two students who are currently in or who have recently been in a dating relationship.”

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Bullying�MUST�be investigated�when it occurs…

On school grounds

At a school-sponsored or school-related activity, whether on or off school grounds

At a school bus stop or on a school bus or other vehicle owned, leased or used by district

Through the use of an electronic device or mobile device owned, leased or used by local or regional Board of Education, AND

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AND�Bullying�MUST�be investigated�when it occurs…

Outside of the school setting if any of such bullying fulfills any of the following 3 characteristics:

Creates a hostile school environment for the victim

Infringes on the rights of the victim at school OR

Substantially disrupts the education process or the orderly operation of a school

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When the Investigation is Complete…

No written report required. However, district must have procedures to document and maintain records of complaints and investigations.
Must have list of verified incidents.
Within 48 hours of the completion of the investigation, school officials must notify parents of any student who commits a verified act of bullying and the parents of any student against whom such act of bullying was committed.
Notify parents, verbally and by electronic mail, if such parents' or guardians' electronic mail addresses are known, that such parents or guardians may refer to the plain language explanation of the rights and remedies available under sections 10-4a and 10-4b published on the Internet web site of the local or regional board of education

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When the Investigation is Complete…

Parents of a student whom such act was directed must be invited to a meeting where the school communicates the measures being taken by the school to ensure student safety and prevent further acts of bullying.
Parents of a student who commits any verified act of bullying must be invited to a meeting to discuss specific interventions undertaken by the school to prevent further acts of bullying.
Meetings with each set of parents should be separate and distinct.

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What are my responsibilities for intervention?

When acts of bullying are verified, school officials must develop “student safety support plans for students against whom an act of bullying was directed that address safety measures the school will take to protect such students against further acts of bullying.”

When there are repeated verified acts of bullying against a single individual student or recurrently perpetrated bullying incidents by the same individual, school officials must develop case-by-case interventions that may include both counseling and discipline.

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What are appropriate consequences for bullying?

The notification to parents of a student who committed a verified act of bullying must include “a description of the response of school employees to such acts and any consequences that may result from the commission of further acts of bullying.”
Consider need for:

Increased supervision
Separation of students involved
Computer restrictions/loss of privileges
Counseling
Formal discipline (ISS, OSS, expulsion)

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How should I handle allegations that could require both a Title IX and a bullying investigation?

Use the more prescriptive/protective procedures
Inform parents that you will be investigating under both Title IX and Connecticut’s bullying law
Remember to adhere to the specific procedural requirements of the bullying law

List of verified incidents.
Within 48 hours of the completion of the investigation, school officials must notify parents of any student who commits a verified act of bullying and the parents of any student against whom such act of bullying was committed.
Notify parents or guardians that they may refer to the plain language explanation of the rights and remedies available under sections 10-4a and 10-4b published on the Internet web site of the local or regional board of education.
Parents of a student whom such act was directed must be invited to a meeting where the school communicates the measures being taken by the school to ensure student safety and prevent further acts of bullying.
Parents of a student who commits any verified act of bullying must be invited to a meeting to discuss specific interventions undertaken by the school to prevent further acts of bullying.

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Questions?

�

These materials have been prepared by Shipman & Goodwin LLP for informational purposes only. They are not intended as advertising and should not be considered legal advice. This information is not intended to create, and receipt of it does not create, a lawyer-client relationship. Viewers should not act upon this information without seeking professional counsel.

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