Title IX

Decision Maker/Appellate Decision Maker Training

August 19, 2026

Stephanie Kaupa, General Counsel for School Legal Services

Title IX

“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.”

2020 🡪 2024 🡪 2020

• 2024: Federal courts in multiple jurisdictions enjoined the 2024 Title IX Rule, which amounted to a prohibition against its enforcement in 26 states.
• January 9, 2025: United States District Court for the Eastern District of Kentucky issued a decision vacating the 2024 Title IX Rule, which prohibited the United States Department of Education from enforcing it in any jurisdiction.
• January 31, 2025: Dear Colleague Letter from OCR

“[T]he binding regulatory framework for Title IX enforcement includes the principles and provisions of the 2020 Title IX Rule and the longstanding Title IX regulations outlined in 34 C.F.R. 106 et seq., but excludes the 2024 Title IX Rule. Accordingly, open Title IX investigations initiated under the 2024 Title IX Rule should be immediately reoriented to comport fully with the requirements of the 2020 Title IX Rule.”

2020 Title IX Regulations

• Significantly expanded and changed the roles and responsibilities of all staff with respect to allegations of sexual harassment
• Narrow definition of sexual harassment
• Formal Complaint process

Title IX Team and Impartiality

Title IX Team

• Title IX Coordinator
• Investigator
• Decision Maker
• Appellate Decision Maker
• (Optional) Informal Resolution Facilitator

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• All of these roles must be filled by individuals trained in Title IX. Only the Title IX Coordinator/Investigator roles can be filled by the same person. These positions can be contractors or non-district personnel.

Impartiality

• Members of the Title IX team cannot have a conflict of interest or bias against complainants or respondents, generally, or against the involved Complainant or Respondent, specifically.
• Conflict of interest
• Actual or apparent
• Can arise from conflicting relationships, duties, financial interests, etc.
• Bias/prejudice
• Actual or apparent
• Positive or negative
• Can arise from personally-held beliefs, ideals, sympathies, stereotypes, etc.

Impartiality

• Confirm that there are no conflicts of interest.
• Discard any preconceived notions or stereotypes about the parties involved.
• Assess allegations based on facts, not assumptions.
• Apply supportive measures in an equitable manner, without assuming guilt or innocence.
• Provide both parties with equal access to communication and information throughout the process.

Terminology

Sexual Harassment

• Three types of conduct on the basis of sex that constitute sexual harassment under the regulations:
1. Quid pro quo by an employee;
2. Hostile environment;
3. Conduct that meets the definitions under federal law for sexual assault, dating violence, domestic violence, and stalking.

Quid Pro Quo Sexual Harassment

• Quid pro quo: When an employee conditions the provision of a district aid, benefit, or service on participation in unwelcome sexual conduct.
• This definition applies only to actions of employees.

Hostile Environment Sexual Harassment

• Unwelcome conduct that is so severe, pervasive, AND objectively offensive that it effectively denies a person equal access to the district’s programs or activities.
• This could be student-to-student conduct, employee-to-student conduct, or employee-to-employee conduct.

Four More Types of Sexual Harassment

• The federal Clery Act and the Violence Against Women Act (VAWA) address four types of violence that are each considered forms of sexual harassment under Title IX:
• Sexual assault: Forcible or non-forcible sexual offenses under the Uniform Crime Reporting System of the FBI
• Dating violence: Violence done by a person who is, or has been, in a dating relationship with the other person
• Domestic violence: Violence by a current or former intimate partner
• Stalking: A course of conduct directed at a specific person that would cause a reasonable person to fear for personal safety of self or others; or to suffer emotional distress

Other Important Terms

• Complainant: individual who is alleged to be the victim of conduct that could constitute sexual harassment
• Respondent: individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment
• Report: verbal or written, by anyone
• Formal Complaint: written document filed by a Complainant or signed by the Title IX Coordinator alleging sexual harassment against a Respondent and requesting that the district investigate the allegation of sexual harassment
• Supportive Measures: individualized, non-disciplinary and non-punitive services offered as appropriate
• Education program or activity: any academic, extracurricular, vocational, or other education program operated by a district

Your Role as a Decision Maker

Basic Requirements for Grievance Process

• Equal access/treatment
• Objective evaluation of all relevant evidence
• Impartiality
• Presumption of innocence
• Reasonably prompt time frames
• Range of possible disciplinary sanctions or remedies
• Designated standard of evidence
• Range of supportive measures
• Protection of privilege
• Appeal process available

Title IX Formal Complaint Process

Decision Maker

• Primary duties include:
• Examining the evidence collected during the investigation.
• Evaluating the significance and reliability of the evidence.
• Drawing conclusions based on the record.
• Determining whether the Respondent is responsible under Title IX.

Determination

• Review the Investigation Report in its entirety.
• Receive and evaluate written questions submitted by the parties.
• Facilitate the exchange of relevant questions and responses.
• Permit appropriate follow-up questions when warranted.
• Consider all relevant evidence and written responses.
• Draft and issue the written determination.

Investigation Report

Review the Formal Complaint and Investigation Report thoroughly.

• Understand the allegations and the evidence supporting or refuting them.
• Seek clarification from the Investigator or Title IX Coordinator when necessary.

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Initiate the written question process.

• Parties have 10 district business days after receiving the Investigation Report to submit written questions.
• Questions must be relevant to the issues under investigation.
• Limited follow-up questions may be exchanged after the initial round of responses.

Reviewing and Weighing Evidence

Determining Relevance

• A question is generally relevant if it may assist in determining whether the alleged conduct occurred.
• Consider:
• Does the answer make a disputed fact more or less likely?
• Is that fact important to deciding whether Title IX sexual harassment occurred?
• When excluding a question as irrelevant, the Decision Maker must provide an explanation to the party who submitted it.

Note about the “Rape Shield” Provision

• Information regarding a Complainant's sexual predisposition or prior sexual conduct is generally not considered relevant.
• Exceptions include:
• Evidence offered to show that someone other than the Respondent engaged in the alleged conduct; or
• Evidence relating to prior sexual interactions between the Complainant and Respondent when offered to establish consent.

Evidentiary Standard

Clear and Convincing

This standard is met when the available evidence shows that a fact is highly probable to be true.

Determination of Responsibility

• After both parties have received the final Investigation Report and had the opportunity to exchange written questions and answers, the Decision Maker must prepare a written determination that includes:
• Clear identification of the allegations;
• A summary of the procedural steps taken throughout the investigation;
• Findings of fact that support the determination;
• Conclusions regarding whether the alleged misconduct occurred;
• Explanations for each conclusion;
• Any disciplinary sanctions or remedies being imposed; and
• Procedures and permissible bases for appeal.
• The written determination must be provided to both parties simultaneously.
• Any discipline or remedies resulting from the determination should not take effect until the appeal period expires or any appeal has been resolved.

Your Role as Appellate Decision Maker

Appellate Decision Maker

• Primary responsibilities include:
• Reviewing the complete Title IX record.
• Considering written appeal submissions.
• Evaluating whether appeal grounds have been established.
• Preparing and issuing a written appeal decision.

Appeal

• Both parties must be notified in writing about their right to appeal the determination of responsibility, but only for the following reasons:
• Procedural irregularity that affected the outcome of the matter;
• New evidence that was not reasonably available at the time the determination or dismissal was made that could affect the outcome of the matter; and/or
• A member of the Title IX team had a conflict of interest or bias that affected the outcome of the matter.
• Additional bases may be allowed, if made available equally to both parties.
• Appeals must be submitted within 15 days of the decision.
• Appeals must be reviewed by a new, impartial decision maker.

Appeal

• When an appeal is submitted, the district must:
• Notify the other party that an appeal has been filed;
• Apply appeal procedures equally to both parties;
• Assign the appeal to an individual who did not serve as the Title IX Coordinator, Investigator, or original Decision Maker; and
• Provide both parties an opportunity to submit written arguments supporting or challenging the determination.

Written Decision from Appellate Decision Maker

• The Appellate Decision Maker may base the appeal determination on the investigation record and any written materials submitted during the appeal process.
• The appeal must conclude with a written decision provided simultaneously to both parties. The decision should include:
• A summary of the allegations;
• A summary of the original determination;
• The basis or bases for the appeal; and
• The decision on the appeal and rationale for the decision.

Questions?

Stephanie Kaupa, General Counsel for School Legal Services

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Stephanie.Kaupa@wesd.org

The information in this presentation was prepared by WESD School Legal Services attorneys. It is intended to be used as general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney.