1 of 86

Title IX Training Powhatan Co. Public Schs. July 22, 2025

LaToya H. Croxton lcroxton@sandsanderson.com (804) 783-7243

2 of 86

  1. Training Requirement Overview (2020 Regulations)
  2. Title IX and its Implementing Regulations
  3. Identifying Sex Discrimination and Sexual Harassment
  4. Responding to Knowledge of Sex Discrimination and Sexual Harassment
  5. Grievance Process
  6. Requirement of Impartiality

2 | ©2025 Sands Anderson PC

3 of 86

Specific Requirements for Training

3 | ©2025 Sands Anderson PC

All Title IX Coordinators, investigators, decision-makers, and informal resolution process facilitators must be trained on:

  • Definition of sexual harassment prohibited by Title IX.
  • Scope of the school division’s education program or activity.
  • How to conduct an investigation and grievance process - including appeals and informal processes.
  • How to serve impartially (avoiding prejudgment of facts, conflicts of interest, and bias).

4 of 86

Specific Requirements for Training

4 | ©2025 Sands Anderson PC

Decision-makers must also receive training on:

  • Issues of the relevance of questions and evidence, including when questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant.

​

Investigators must also receive training on:

  • Issues of relevance to create an investigative report that fairly summarizes relevant evidence.

5 of 86

Title IX and Its Implementing Regulations

6 of 86

Title IX

6 | ©2025 Sands Anderson PC

  • Title IX of the Education Amendments of 1972 states that:

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.

  • Title IX requires that agencies promulgate regulations to provide guidance to recipients of federal financial assistance who administer education programs or activities on Title IX enforcement.
    • 2020 – USDOE adopted regulations that focused more on school divisions’ response to sexual harassment, a form of discrimination on the basis of sex, and the processes by which school divisions responded to such claims.

7 of 86

Policy JB: Sex Discrimination

7 | ©2025 Sands Anderson PC

  • Prohibits discrimination on basis of sex, sexual orientation, race, creed, color, national origin, gender, gender identity, ethnicity religion, disability, ancestry, marital or parental status, or any other unlawful basis.

8 of 86

School Board Policy JFHA/GBA

8 | ©2025 Sands Anderson PC

  • Prohibits harassment against students, employees or others on the basis of sex, sexual orientation, gender, gender identity, race, color, national origin, disability, religion, ancestry, age, marital status, pregnancy, childbirth or related medical conditions, military status, genetic information or any other characteristic protected by law or based on a belief that such characteristic exists, hereinafter referred to as protected group status, at school or any school-sponsored activity.
  • Violation for any student or school personnel to harass a student or school personnel on protected group status.
  • Violation for any school personnel to tolerate harassment based on a student’s or employee’s protected group status.

9 of 86

Potential Consequences of Non-Compliance

9 | ©2025 Sands Anderson PC

  • U.S. Department Of Education, Office for Civil Rights (“OCR”) Investigation
    • Investigates and enforces compliance with Title IX
    • “Voluntary” corrective action, including OCR oversight, monetary reimbursement
    • Loss of federal funding
  • Referral to U.S. Department of Justice (“DOJ”) for Enforcement
    • 2024: Justice Dept secured $4.14M settlement with UMBC to pay $4.4M where it allowed former head coach to sexually harass male student-athletes and discriminate against female student-athletes for years.
  • Private Lawsuit for Injunctive Relief or Monetary Damages
    • 2018: Dartmouth College sued for $70M. Settled for $14M where male professors in science department engaged in widespread sexual harassment of female college and graduate students.

10 of 86

Identifying Sex Discrimination and Sexual Harassment

(2020 Regulations)

11 of 86

Who is Protected by Title IX?

11 | ©2025 Sands Anderson PC

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.

“Person” includes:

  • Students
  • Employees
  • Applicants for employment, and
  • Other individuals participating or attempting to participate in the education program or activity.

12 of 86

What is Sex Discrimination?

12 | ©2025 Sands Anderson PC

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.

“Sex Discrimination” includes:

  • Sexual Harassment
  • Exclusion from participation on the basis of sex
  • Denial of benefits on the basis of sex
  • Other discrimination on the basis of sex, e.g., differential treatment
  • Discrimination based on pregnancy
  • Retaliation

13 of 86

Two Different Processes

13 | ©2025 Sands Anderson PC

  • Sexual Harassment is only one type of “sex discrimination.”
    • If sexual harassment alleged meets Title IX’s definition of “sexual harassment,” then the Title IX Grievance Process under Policy JFHA/GBA (Section IX) must be followed.
    • If sexual harassment alleged does not meet Title IX’s definition of “sexual harassment,” then Complaint Procedures under Policy JB and Policy JFHA/GBA (Section III) must be applied.
  • Other Forms of “Sex Discrimination” (e.g., Differential treatment; discrimination based on pregnancy; denial of benefits on the basis of sex)
    • Complaint Procedures under Policy JB and Policy JFHA/GBA (Section III) must be

applied.

    • Also includes claims of harassment based on sex that do not meet Title IX’s definition of sexual harassment.

14 of 86

Sex Discrimination

14 | ©2025 Sands Anderson PC

Other Forms of Sex Discrimination

Policy JB (Section II)

Sexual Harassment

Does Not Meet Definition

Policy JFHA/GBA (Section III)

Meets Definition of Sexual Harassment Under Title IX

Policy JFHA/GBA (Section IV)

15 of 86

Definition of Sexual Harassment Prohibited by Title IX

15 | ©2025 Sands Anderson PC

34 C.F.R. § 106.30/Policy JFHA/GBA – Section II

Sexual harassment prohibited by Title IX means conduct on the basis of sex that satisfies one or more of the following:

  • A school employee conditioning education benefits on participation in unwelcome sexual conduct (i.e., quid pro quo); or
  • Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school's education program or activity; or
  • Sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA).

16 of 86

Sexual Harassment

16 | ©2025 Sands Anderson PC

“Quid Pro Quo”

“Unwelcome Conduct” Standard Specific Offenses

17 of 86

Definitions for Specific Offenses

17 | ©2025 Sands Anderson PC

  • “Sexual assault” as defined in 20 U.S.C. 1092 (f)(6)(A)(v)
  • “Dating violence” as defined in 34 U.S.C. 12291(a)(10)
  • “Domestic violence” as defined in 34 U.S.C. 12291(a)(8)
  • “Stalking” as defined in 34 U.S.C. 12291(a)(30)

​

The school division does not have to consider whether these types of misconduct were so severe, pervasive, and objectively offensive that they effectively denied a person equal access.

18 of 86

Definition of Sexual Assault

18 | ©2025 Sands Anderson PC

Includes the following sexual acts directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent:

  • Rape - (Except Statutory Rape) The carnal knowledge of a person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity
  • Sodomy - Oral or anal sexual intercourse with another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity
  • Sexual Assault With An Object - To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity
  • Fondling - The touching of the private body parts of another person for the purpose of sexual gratification without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity

​

https://ucr.fbi.gov/nibrs/2018/resource-pages/nibrs_offense_definitions-2018.pdf

*List not exhaustive

19 of 86

Hypotheticals:

#1: Male 2nd grader sitting next to a female 2nd grader with his hand down the front of her pants

#2: Two male 1st graders touching each other's private body parts #3: Male 7th grader slaps the rear end of a classmate

#4: Male teacher buys gifts for three female students but no male students

19 | ©2025 Sands Anderson PC

20 of 86

Responding to Sex Discrimination Claims that Do Not Qualify as Sexual Harassment Under Title IX

20 | ©2025 Sands Anderson PC

21 of 86

Policy JB or JFBA/GBA: Sex Discrimination – Complaint Procedure

21 | ©2025 Sands Anderson PC

Steps

  1. Report
  2. Investigation
  3. Action by Superintendent
  4. Appeal

22 of 86

Policy JB or JFHA/GBA (Sec. III)

Step 1 of Complaint Procedure: Report

22 | ©2024 Sands Anderson PC

  • May be filed by victim or any student or employee who has knowledge of conduct which may constitute prohibited discrimination
  • File with Compliance Officers designated in policy or any school personnel
  • Reporting Forms should be used but not required
  • Should be filed within 15 school days of occurrence
  • Confidentiality provisions
  • Policy JB Discrimination Claims □ Principal must forward report to Compliance Officer.
  • Policy JFHA/GBA Claims □ Any school personnel must report to Title IX Coordinator.

23 of 86

Policy JB or JFHA/GBA (Sec. III)

Step 2 of Complaint Procedure: Investigation

23 | ©2025 Sands Anderson PC

  • By Whom? – School personnel or third party designated by PCPS
  • When? ASAP, but not later than 14 school days after receipt of report by Compliance Officer. May extend timeline but must give notice.
  • Compliance Officer must:
    • Acknowledge receipt of complaint in writing to both parties;
    • Determine whether interim measures should be taken;
    • Conduct or oversee investigation – Interview witnesses; Inspect relevant documents/information; and
    • Issue a written report to the superintendent upon completion or School Board if superintendent involved.

24 of 86

Policy JB or JFHA/GBA (Sec. III)

Step 2 of Complaint Procedure: Investigation

24 | ©2025 Sands Anderson PC

Written Report Must Include:

  • Determination of whether the allegations are substantiated,
  • Whether Policy JB or JFHA/GBA was violated,
  • Recommendations for corrective action, if any.

25 of 86

Policy JB or JFHA/GBA (Sec. III)

Step 3 of Complaint Procedure: Action by Superintendent

25 | ©2025 Sands Anderson PC

  • Superintendent or designee must issue a decision in writing within 5 school days of receiving the Compliance Officer’s report.
  • Decision must include:
    • Whether Policy JB or JFHA/GBA was violated; and
    • What action, if any, should be taken.
  • If prohibited action occurred, School Board shall take prompt, appropriate action to address and remedy the violation as well as prevent any recurrence.

26 of 86

Policy JB or JFHA/GBA (Sec. III)

Step 4 of Complaint Procedure: Appeal

26 | ©2025 Sands Anderson PC

  • Losing party has right to appeal within 5 school days of receiving the decision.
  • Notice of appeal must be filed with superintendent, who shall forward the record to the School Board.
  • School Board must make decision within 30 calendar days of receiving the record.
  • School Board may ask for oral or written arguments from the aggrieved party, the superintendent, and any other relevant individual.
  • Written notice of the School Board’s decisions will be given to both parties.

27 of 86

Policy JFHA/GBA (Sec. III): Informal Procedure

27 | ©2025 Sands Anderson PC

  • Applies to sexual harassment claims that do not meet Title IX definition of “sexual harassment”
  • If both parties agree, principal or principal’s designee or supervisor may arrange for them to resolve the complaint informally with the help of a counselor, teacher, or administrator.
  • Each must be informed that they have the right to abandon the informal procedure at any time in favor of the initiation of the Compliance Officer Formal Procedures.
  • Principal/designee/supervisor must notify both parties in written when complaint resolved, and notice must state whether prohibited harassment occurred.

28 of 86

What is the School Division’s Obligation When it Receives a Complaint of Other Sex Discrimination?

28 | ©2025 Sands Anderson PC

Question:

How should a school respond to complaints alleging sex discrimination that do not include sexual harassment allegations?

Answer:

Schools must respond to complaints alleging discrimination based on pregnancy, different treatment based on sex, or other forms of sex discrimination using the “prompt and equitable” grievance procedures that schools have been required to adopt and publish since 1975 when the original Title IX regulations were issued.

See Question and Answers on the Title IX Regulations on Sexual Harassment (July 20, 2021).

29 of 86

Responding to

“Sexual Harassment” Claims that Meet Title IX Definition

30 of 86

What Triggers a School’s Obligation to Respond?

30 | ©2025 Sands Anderson PC

  1. Actual knowledge
  2. Of sexual harassment or allegations of sexual harassment
  3. That occurred in school division’s own program or activity
  4. And in the United States

31 of 86

“Actual Knowledge”

31 | ©2025 Sands Anderson PC

  • A report to a Title IX Coordinator will always give schools actual knowledge.
  • In K-12, “notice” of sexual harassment or allegations of sexual harassment provided to any employee at the school gives the school division actual knowledge.
  • Any individual may report sexual harassment, not just the individual allegedly subjected to misconduct.

32 of 86

“Of Sexual Harassment or Allegations of Sexual Harassment”

32 | ©2025 Sands Anderson PC

  • Allegations of conduct that could constitute sexual harassment if proved are sufficient to trigger an obligation to respond.
  • In Virginia, allegations of sexual grooming may be sufficient to trigger an obligation to respond.
    • Doe v. North Carolina State, 125 F.4th 498 (4th Cir. 2025).

33 of 86

Conduct Within School Division’s Own Program or Activity, in the United States

33 | ©2025 Sands Anderson PC

  • Includes “any location, event, or circumstance over which the school division exhibits substantial control over both the alleged harasser and the context in which the harassment occurred,” so long as the conduct occurred in the United States.

34 of 86

Conduct Within School Division’s Own Program or Activity, in the United States

34 | ©2025 Sands Anderson PC

Question: Which settings are covered by the 2020 amendments?

Answer:

  • Buildings or other locations part of school’s operations, including remote learning platforms.
  • Off-campus settings if the school exercised substantial control over the respondent and the context in which alleged conduct occurred (ex. field trip).

See Question and Answers on the Title IX Regulations on Sexual Harassment (July 20, 2021).

35 of 86

Conduct Within School Division’s Own Program or Activity, in the United States

35 | ©2025 Sands Anderson PC

Practice tip:

  • Any sexual harassment that occurs in a school’s program or activity must be responded to even if it is related to or happens subsequent to sexual harassment that occurred outside the school division’s program or activity.

36 of 86

What is the School Division’s Obligation When It Has Actual Knowledge of Sexual Harassment?

36 | ©2025 Sands Anderson PC

  • Must respond in a way that is not “deliberately indifferent”
    • Defined as “clearly unreasonable in light of the known circumstances.”
    • Division will be held liable if non-compliant.
  • Must treat the complainant and respondent equitably
  • Title IX Coordinator must offer supportive measures
    • Definition: non-disciplinary, non-punitive, individualized services, offered as appropriate and without charge to a complainant or a respondent before or after the filing of a formal complaint, or where no complaint has been filed.
  • Title IX Coordinator must activate grievance process when a formal complaint

is filed

  • Once a formal complaint is filed, use of an informal resolution process may be considered.

37 of 86

Supportive Measures to Consider

37 | ©2025 Sands Anderson PC

  • Placement of students in different classes
  • Provide complainant with escort or different transportation services
  • Counseling
  • Academic, emotional, and social support
  • Mutual No Contact directives
  • Extension of deadlines
  • Safety plan
  • Offending employee placed on administrative leave
  • Emergency removal

38 of 86

What Should the Response Be for Employees Generally?

  • All employees must be able to recognize sexual violence and harassment of students by other students or school employees.
  • All employees should be able to recognize “grooming behaviors” by other employees or other third parties (volunteers, coaches, etc.).
  • All employees must know to report suspected harassment or grooming behaviors to the principal or Title IX Coordinator.
  • Failure to do so can contribute to liability of the Division under Title IX.

Practice Tips:

  • If there is any possible interpretation of conduct as sexual harassment (or other sex discrimination), consult with your Title IX Coordinator.
  • Do not discipline the student prior to consulting with your Title IX Coordinator.

38 | ©2025 Sands Anderson PC

39 of 86

Hypotheticals

39 | ©2025 Sands Anderson PC

#1: Student tells a teacher that a male 12th grade student had sent nude pictures of himself to her friend - a female 9th grade student - over winter break

#2: A grandmother files a Title IX complaint alleging that an 11th grade male student had posted an altered photo on social media with the face of her grandson - a male 10th grader - next to a picture of male genitalia with language suggesting the student’s sexual orientation

40 of 86

Grievance Process

40 | ©2025 Sands Anderson PC

41 of 86

Four Major Stages of Grievance Process

41 | ©2025 Sands Anderson PC

  1. Evaluation
    • Identification of Complaint
    • Consideration of Dismissal
    • Notice of Allegations
  2. Investigation
    • Collect Evidence
    • Provide Access to Evidence
    • Investigative Report
  3. Determination
    • Provide Rationale for Outcome
  4. Appeal

* Option of Informal Resolution at any time between filing of formal complaint and determination.

42 of 86

Grievance Process Stage 1: Evaluation

42 | ©2025 Sands Anderson PC

43 of 86

Evaluation by Title IX Coordinator

43 | ©2025 Sands Anderson PC

  • Determine whether a formal complaint has been filed.
  • Determine whether the alleged conduct could constitute sexual harassment and whether it occurred in the school division’s education program or activity. If not, dismiss.
  • If there is a formal complaint alleging conduct that meets the definition of sexual harassment prohibited by Title IX that occurred within the school division’s education program or activity and within the United States, the Title IX Coordinator initiates the grievance process:
    • Appoints an investigator;
    • Sends a Notice of Allegations to the parties.

44 of 86

What Triggers Grievance Process?

44 | ©2025 Sands Anderson PC

  • Receipt of a “formal complaint”
    • Formal complaint means a “document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment prohibited by Title IX against a respondent and requesting that the recipient investigate the allegation be investigated.”
    • May be filed with the Title IX Coordinator in person, by mail, or by electronic mail.
  • Formal complaint must include:
    • Allegations of conduct that satisfy the definition of sexual harassment prohibited by Title IX; and
    • Allegations of conduct that occurred within the scope of the school division’s program or activity and within the United States.

45 of 86

Potential Grounds for Dismissal

45 | ©2025 Sands Anderson PC

  • Mandatory Dismissal if the conduct alleged:
    • Would not constitute sexual harassment prohibited by Title IX even if proved,
    • Did not occur in the School’s education program or activity, or
    • Did not occur against a person in the United States.
  • Permissive Dismissal if:
    • Complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein,
    • Respondent is no longer enrolled or employed by the School Board, or
    • Specific circumstances prevent the School Board from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.

46 of 86

Notice of Allegations

46 | ©2025 Sands Anderson PC

On receipt of a formal complaint, the Title IX Coordinator gives the following written notice to the parties who are known:

•

•

•

  • Notice of the grievance process, including any informal resolution process;
  • Notice of the allegations of sexual harassment, including sufficient details known at the time (parties, conduct alleged, date, location) and with sufficient time to prepare a response before any initial interview;

A statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process;

A statement that the parties may have an advisor of their choice, who may be, but is not required to be, an attorney, and may inspect and review evidence; and

Reference to any provisions in the School Board’s Code of Conduct or the Superintendent’s Standards of Student Conduct that prohibit knowingly making false statements or knowingly submitting false information during the grievance process.

47 of 86

Grievance Process Stage 2: Investigation

47 | ©2025 Sands Anderson PC

48 of 86

Investigation Requirements Under Policy JFHA/GBA (Sec. IV)

48 | ©2025 Sands Anderson PC

  • Step 1: Collect Information/Evidence. The burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rests on the School Board and not on the parties. However, the parties have an equal opportunity to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence. The ability of the parties to discuss the allegations under investigation or to gather and present relevant evidence is not restricted.
    • Allow Advisor to be Present: The parties have the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied by an advisor. The choice or presence of an advisor for either the complainant or respondent is not limited to any meeting or grievance proceeding.
  • Step 2: Review all Evidence and Determine What Is Non-Relevant Evidence or Impermissible Evidence.
  • Step 3: Send ALL Directly Related, Permissible Evidence to the Parties: The investigator provides both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence which will not be relied upon in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation.
  • Step 4: Send Investigative Report to the Parties: The investigator creates an investigative report that fairly summarizes relevant evidence and sends to each party and the party’s advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response.

49 of 86

Investigation Step 1: Collect Information/Evidence

49 | ©2025 Sands Anderson PC

  • Documents;
  • Text messages;
  • E-mails;
  • School division video footage;
  • Cell phone recordings;
  • Photos;
  • Interviews with both parties and relevant witnesses;
  • Other evidence provided by either party.

50 of 86

Conduct Interviews

  • Conduct all interviews like a journalist - LISTEN and DOCUMENT!
  • Use open, non-leading questions.
  • Remind all interviewed of importance of confidentiality and prohibition of retaliation.
  • Obtain the names, addresses, contact info of anyone with knowledge.
  • Ask for any other supporting evidence.

​

Both Parties

  • Provide written notice of the date, time, location, participants, and purpose of all investigative interviews or other meetings with sufficient time for the party to prepare to participate.
  • Allow the parties to bring an advisor.
  • Be sure to understand both parties’ claims about what occurred and the chronology of events.

Respondent

  • Give a detailed description of what has been alleged to allow full response.
  • Inform the respondent that no conclusions have been made.
  • Consider the need for a recorded or written statement.

50 | ©2025 Sands Anderson PC

51 of 86

​

​

Sample Investigation Checklist

51 | ©2025 Sands Anderson PC

Interviewed Complainant

Interviewed Respondent

Interviewed Witnesses

Written witness statements

Interviewed complainant(s) parent(s)/guardian(s)

Interviewed respondent(s) parent(s)/guardian(s)

Examined physical evidence

Reviewed medical information (if privilege is waived)

Reviewed student records

Reviewed social history between parties

Interviewed teachers and/or school staff

Reviewed student attendance and grades

Reviewed video surveillance

Reviewed electronic/web content

52 of 86

Investigation Step 2: Review the Evidence Collected

52 | ©2025 Sands Anderson PC

  • Were you thorough?
  • Is there evidence that is not relevant?
    • Categorically not relevant – evidence of sexual history
  • Is there evidence that is not permissible?
    • Protected by legal privilege

53 of 86

Definition of Relevance

53 | ©2025 Sands Anderson PC

  • Investigators must receive training on

(1) relevance and (2) writing reports that fairly summarize relevant evidence.

  • So, what is “relevant evidence”?
    • Generally, “relevant” evidence is that evidence tending to prove or disprove an alleged fact.
    • Stated differently, it is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

54 of 86

What is Relevant Evidence?

54 | ©2025 Sands Anderson PC

  • The Preamble addresses this definition as follows:
    • “The requirement for recipients to summarize and evaluate relevant evidence, and specification of certain types of evidence that must be deemed not relevant or are otherwise inadmissible in a grievance process pursuant to § 106.45, appropriately directs recipients to focus investigations and adjudications on evidence pertinent to proving whether facts material to the allegations under investigation are more or less likely to be true (i.e., on what is relevant).” 85

F.R. 30294.

  • OCR’s September 4, 2020 “Questions and Answers Regarding the Department’s Final Title IX Rule”:
    • “The Title IX Rule does not adopt the Federal Rules of Evidence for hearings conducted under Title IX. . . .[T]he Rule uses ‘relevance’ as the sole admissibility criterion.” Q&A #7.

55 of 86

Irrelevant Evidence

55 | ©2025 Sands Anderson PC

  • Evidence that does not tend to make an alleged fact more or less likely;
  • Evidence that relates to the complainant’s “sexual predisposition or prior sexual behavior” is irrelevant.
    • Exceptions:
      • Evidence about the complainant’s prior sexual behavior is relevant if offered to prove that someone other than the respondent committed the conduct alleged by the complainant.
      • Evidence concerning specific incidents of the complainant’s prior sexual behavior with respect to the respondent is relevant if offered to prove consent to the alleged sexual harassment.

56 of 86

Impermissible Evidence

56 | ©2025 Sands Anderson PC

  • Information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege;
  • A “party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the recipient obtains that party’s voluntary, written consent to do so.”

57 of 86

Investigation Step 3: Provide All Directly Related, Permissible Evidence to the Parties

57 | ©2025 Sands Anderson PC

  • Policy JFHA/GBA: “The investigator provides both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence which will not be relied upon in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation. Prior to the completion of the investigative report, the investigator must send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and the parties must have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report.”

58 of 86

Investigation Step 4: Draft Investigative Report

58 | ©2025 Sands Anderson PC

  • Policy JFHA/GBA: Investigator must create an investigative report that fairly summarizes relevant evidence.
    • Summarize all relevant, permissible evidence collected, both inculpatory and exculpatory.
    • Highlight misconduct with specific description of the events, not generalized conclusions.
    • Do not editorialize. May make credibility determinations, but they cannot be based on party’s status as complainant, respondent or witness.
    • Make use of evidentiary attachments, such as photos, e-mails, texts, screen shots, videos, handwritten documents, etc.
  • Identify specific allegation(s) investigated.
  • Include notice of the right to respond to the report/submit written relevant questions to other party through the decision-maker.

59 of 86

Additional Potential Investigative Report Elements

59 | ©2025 Sands Anderson PC

  • Description of Procedural Steps Taken
    • Written notice
    • Selection of investigator and investigative approach
    • Relevant school board policies/code of conduct provisions
    • Pre-investigation gathering of relevant evidence
    • Witness interview dates
    • Delivery of directly related evidence
    • Parties’ written responses to directly related evidence
  • Findings of Fact and Credibility Determinations

​

* These elements are only required in the determination; however, the investigator may also include them in the Investigative Report to assist the decision-maker. The decision-maker will decide whether to adopt them.

60 of 86

Investigation Step 5: Send Investigative Report

60 | ©2025 Sands Anderson PC

  • Policy JFHA/GBA: The investigator sends the investigative report to each party and the party’s advisory, if any, in an electronic format or a hard copy, for their review and written response.
  • Investigative report will be be provided to the parties within 35 days from the date the formal complaint is filed.

61 of 86

Grievance Process Stage 3: Determination

61 | ©2025 Sands Anderson PC

62 of 86

Separate Decision-Maker

62 | ©2025 Sands Anderson PC

  • The decision-maker cannot be the same person as the Title IX Coordinator or the investigator.
  • Must issue a written determination regarding responsibility.

63 of 86

Opportunity to Submit Written, Relevant Questions

63 | ©2025 Sands Anderson PC

  • Policy JFHA/GBA: “After the investigator has sent the investigative report to the parties and before reaching a determination regarding responsibility, the decision-maker must afford each party the opportunity to submit written, relevant questions that the party wants to be asked of any party or witness, provide each party with the answers, an allow for additional, limited follow-up questions from each party.”

64 of 86

Findings of Fact

64 | ©2025 Sands Anderson PC

  • For each fact in dispute, weigh the evidence and argument submitted by the parties – including making credibility determinations – and make a determination: a “finding of fact.”
  • The Preamble states that the decision-maker should be looking at consistency, accuracy, memory, credibility, implausibility, inconsistency, unreliability, ulterior motives, and lack of credibility. 85 FR 30315 and 30330.
    • Consider all witness statements; detail and consistency in stories; corroboration; changes in complainant’s behavior after alleged incident; and potential sources/causes of such changes.
  • Determine what evidence is worthy of belief and its importance along with necessary and reasonable inferences.
  • Rely on direct evidence whenever possible.

65 of 86

Determination of Responsibility/Non-Responsibility

  • The decisionmaker must determine whether the requirements for a finding of sexual harassment have been met by applying the recipient’s identified standard of proof (e.g., preponderance of the evidence).
    • Ex: Does the preponderance of the evidence support a finding that the conduct was unwelcome, that the conduct was severe, that the conduct was pervasive, that the conduct was objectively offensive, and that the conduct effectively denied the complainant equal access to the education program or activity?
    • Ex: Does the preponderance of the evidence support a finding of each element of sexual assault?
  • A recipient MUST begin with a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.

65 | ©2025 Sands Anderson PC

66 of 86

Written Determination of Responsibility/Non-Responsibility

66 | ©2025 Sands Anderson PC

  • Must Include:
    • Identification of the allegations potentially constituting sexual harassment;
    • Description of the procedural steps taken;
    • Findings of fact supporting the determination;
    • Conclusions regarding the application of the recipient’s code of conduct to the facts;
    • A statement of, and rationale for, the result as to each allegation, including:
      • A determination regarding responsibility,
      • Any disciplinary sanctions the recipient imposes on the respondent, and
      • Whether remedies designed to restore or preserve equal access to the recipient’s education program or activity will be provided by the recipient to the complainant.
    • The recipient’s procedures and permissible bases for the complainant and respondent to appeal.

67 of 86

Sanctions and Remedies

67 | ©2025 Sands Anderson PC

  • Disciplinary Sanctions: The decisionmaker has disciplinary authority and may impose disciplinary sanctions on the respondent.
    • Be cautious of potential implications for students with an IEP or Section 504 Plan.
  • Remedies: The decisionmaker may also identify remedies that will be provided to a complainant. For example:
    • Ensuring that a complainant can move safely between classes by providing a campus escort;
    • Changing class schedules and extracurricular activities to ensure complainant and respondent are separated;
    • Providing access to counseling services;
    • Providing academic resources and support;
    • Any other remedies it deems appropriate.

68 of 86

Intersection of Title IX and IDEA/504/ADA

68 | ©2025 Sands Anderson PC

  • Title IX does not trump federal disability laws.
  • Disability accommodations should be offered to both the complainant and respondent, as appropriate.
  • PCPS cannot change a student’s placement through the Title IX process without a Manifestation Determination Review, even in cases of emergency removal. If the conduct is determined to be a manifestation of the respondent’s disability, PCPS cannot change the respondent’s placement.

* Practice tip: It is helpful to consult with the complainant and/or respondent’s case manager and/or IEP team at various points in the Title IX process.

69 of 86

Provision of Written Determination

69 | ©2025 Sands Anderson PC

  • Policy JFHA/GBA: Decision will be provided within 10 working days from the date the investigative report is submitted to the decision-maker.
  • The recipient must provide the written determination to the parties simultaneously.
  • The determination regarding responsibility becomes final either on the date that the recipient provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.

70 of 86

Grievance Process Stage 4: Appeals

70 | ©2025 Sands Anderson PC

71 of 86

Appeals

71 | ©2025 Sands Anderson PC

  • Right to an appeal: Either party may appeal from a determination regarding responsibility or from a dismissal of a formal complaint or any allegations therein, on the following bases:
    • Procedural irregularity that affected the outcome of the matter;
    • New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and
    • The Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter.

72 of 86

Policy JFHA/GBA - Procedure for Appeal

72 | ©2025 Sands Anderson PC

1.

Notice of appeal must be given in writing to the Title IX Coordinator within 5 working days from the date the written determination regarding responsibility is given to the parties.

2.

The Title IX Coordinator:

  • Notifies the other party in writing when an appeal is filed and implements appeal procedures equally for both parties; and
  • Ensures that the decision-maker for the appeal complies with the standards set forth in Title IX and this

policy.

3.

The appeal decision-maker:

  • Gives both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome;
  • Reviews the evidence gathered by the investigator, the investigator’s report, and the decision-makers

written decision;

  • Issues a written decision describing the result of the appeal and the rationale for the result within 30 calendar days from the filing of the appeal; and
  • Provides the written decision simultaneously to both parties and the Title IX Coordinator.

73 of 86

Informal Resolution Process

73 | ©2025 Sands Anderson PC

74 of 86

What is an Informal Resolution Process?

74 | ©2025 Sands Anderson PC

  • 2020 Preamble: “Where the facts alleged in a formal complaint are not contested, or where the respondent has admitted, or wishes to admit responsibility, or where both parties want to resolve the case without a completed investigation or adjudication, § 106.45(b)(9) allows a recipient to facilitate an informal resolution of the formal complaint that does not necessitate a full investigation or adjudication.”
  • The 2020 Regulations do not dictate the form of the process.
  • Potential forms can include mediation, voluntary resolution agreements, or other administrative resolutions.

75 of 86

When Can PCPS Offer an Informal Resolution Process?

75 | ©2025 Sands Anderson PC

  • At any time after a formal complaint has been filed but before reaching a determination regarding responsibility, and
  • If written notice is provided to both parties that meets the regulatory requirements, and
  • If both parties voluntarily consent to the process in writing.

76 of 86

What Does the Written Notice Need to Include?

76 | ©2025 Sands Anderson PC

  • The allegations;
  • A description of the informal resolution process;
  • The requirements of the informal resolution process, including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations;
  • Any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared.

77 of 86

When Is PCPS Prohibited from Providing an Informal Resolution Process?

77 | ©2025 Sands Anderson PC

  • As a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right;
  • Before a formal complaint has been filed;
  • If the parties do not provide voluntary written consent;
  • If at any time prior to agreeing to a resolution, either party wants to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint; or
  • If the formal complaint includes allegations that an employee sexually harassed a student.

78 of 86

What is the Facilitator’s Role in Informal Resolution?

78 | ©2025 Sands Anderson PC

  • To receive training;
  • To work with the Title IX coordinator on matters where informal resolution may be appropriate;
  • To facilitate the informal resolution process;
  • To serve “impartially,” and;
  • To work with the Title IX coordinator to document the outcome of the process.

79 of 86

Policy JFHA/GBA: Informal Resolution Policy

79 | ©2025 Sands Anderson PC

  • When one party requests an informal resolution process, the other party must respond to the request within 3 days.
  • The informal resolution process must be completed within 10 days of the agreement to participate in the process.
  • Facilitated by a trained educational professional, consultant, or other individual selected by the Title IX Coordinator.
  • If the matter is resolved to the satisfaction of the parties, the facilitator shall document the nature of the complaint and the resolution, have both parties sign the documentation, receive a copy, and forward it to the Title IX Coordinator.
  • If the matter is not resolved, the formal complaint process is resumed.

80 of 86

Requirement of Impartiality

80 | ©2025 Sands Anderson PC

81 of 86

Impartiality in the Grievance Process

81 | ©2025 Sands Anderson PC

  • The Preamble includes significant discussion about potential bias and unfairness in the grievance process.
    • Examples include decision-maker’s financial and reputational interests encourage protecting the institution; inappropriately combining administrative and adjudicative roles; past role as advocate for victim’s or respondent’s rights.
    • Concerns about marginalized groups: racial minorities, LGBTQ community, disabled persons.
  • The Rule provides that a recipient’s grievance process must:
    • “Require that any individual designated by a recipient as a Title IX Coordinator, investigator,

decision-maker, or any person designated by a recipient to facilitate an informal resolution process, not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.”

    • Further, “[a] recipient must ensure that Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process receive training on . . . how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interests, and bias.”
  • Regulations state that being impartial = avoiding prejudgment of the facts at issue, conflicts of interest, and bias.

82 of 86

Preventing Biased Decisions

  • Bias may be created by differences in cultural backgrounds, age, race, religion, life experiences, and trauma.
    • Decision-makers must remain impartial, avoiding sympathy or a personal perspective on the claim.
    • Avoid sex-based stereotypes (e.g., women have regret and/or lie about sexual assault; men are sexual aggressors).
  • Decision-makers may nonetheless draw reasonable inferences from the evidence.
  • The Preamble encourages recipients to apply an objective (reasonable person), common sense approach to evaluate whether a particular person is biased.

82 | ©2025 Sands Anderson PC

83 of 86

Recordkeeping

83 | ©2025 Sands Anderson PC

Maintain the following records for a period of 7 years:

  • Each investigation of allegations of sexual harassment prohibited by Title IX, including any determination regarding responsibility and any audio/audiovisual recording/transcript, if any, required under the Title IX regulations, any disciplinary sanctions imposed on the respondent, and any remedies provided to the complainant designed to restore or preserve equal access to Board’s education program or activity;
  • Any appeal and the result therefrom;
  • Any informal resolution and the result therefrom; and
  • All materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process. These materials will also be made available on the Board’s website.

84 of 86

Recordkeeping

84 | ©2025 Sands Anderson PC

  • For each response required under 34 C.F.R. § 106.44, the Board must create, and maintain for a period of 7 years, records of any actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment prohibited by Title IX.
  • In each instance, the Board will 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 its education program or activity.
  • If the Board does not provide a complainant with supportive measures, then it will document the reasons why such a response was not clearly unreasonable in light of the known circumstances.

85 of 86

Sex Discrimination

85 | ©2025 Sands Anderson PC

Other Forms of Sex Discrimination

Policy JB (Section II)

Sexual Harassment

Does Not Meet Definition

Policy JFHA/GBA (Section III)

Meets Definition of Sexual Harassment Under Title IX

Policy JFHA/GBA (Section IV)

86 of 86

Questions?

86 | ©2025 Sands Anderson PC

Thank you for your time!

LaToya H. Croxton lcroxton@sandsanderson.com (804) 783-7243