Title IX: 2020 Refresher

Fox River Grove School District No. 3 ▪ March 13, 2025�Presented by: Tina Christofalos and Michelle A. Todd

Title IX of the Education Amendments Act 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 education program or activity receiving Federal financial assistance.��

20 U.S.C.A. § 1681

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TITLE IX: BRIEF HISTORY

1972: Title IX enacted

1974: Title IX regulations issued

1980: Title IX enforcement transferred to the new U.S. Department of Education Office for Civil Rights (“OCR”)

1992: U.S. Supreme Court recognized student right to damages for sexual harassment (Franklin v. Gwinnett County Schools)

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TITLE IX: BRIEF HISTORY

1998: U.S. Supreme Court set standard for teacher-on-student harassment liability as “deliberate indifference” after “actual notice” of misconduct (Gebser v. Lago Vista School District)

1999: U.S. Supreme Court narrowed the definition of “sexual harassment” to require Gebser standard + “severe, pervasive, and objectively offensive” harassment (Davis v. Monroe County Board of Education)

Late 1990s to 2017: Several OCR guidance documents issued regarding the response of educational institutions to allegations of sexual harassment and sexual assault/violence

PRESIDENT BIDEN EXECUTIVE ORDER

On March 8, 2021, President Biden issued an Executive Order entitled “Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity”

The U.S. DOE held a virtual public hearing on Title IX and whether the regulations require changes from June 7-11, 2021

ADDITIONAL GUIDANCE

OCR Letter to Students, Educators, and Other Stakeholders (April 2021)

OCR Notice of Interpretation (June 2021)

• OCR explained that it will enforce Title IX’s prohibition on discrimination on the basis of sex against LGBTQ+ students to include (1) discrimination based on sexual orientation and (2) discrimination based on gender identity

Dear Educator Letter and Fact Sheet (June 2021)

• OCR will enforce Title IX to “prohibit discrimination based on sexual orientation and gender identity in educational programs and activities that receive federal financial assistance”

Questions and Answers on the Title IX Regulations on Sexual Harassment (July 2021) and Appendix (July 2021)

PROPOSED CHANGES TO TITLE IX REGULATIONS

June 23, 2022: U.S. DOE announced proposed changes to Title IX regulations

July 12, 2022: Proposed regulations were published in the Federal Register, beginning the 60-day comment period (September 12, 2022)

In the meantime, the 2020 Title IX regulations remain in effect

May 2020 – Amended Title IX �Sexual Harassment Regulations

TITLE IX REGULATIONS AMENDED

On May 6, 2020, the U.S. DOE released its long-awaited final rule amending Title IX regulations (34 C.F.R. Part 106)

Effective August 14, 2020

Significant changes to the Title IX grievance procedure and, thus, the way schools respond to allegations of sexual harassment under Title IX

TITLE IX REGULATIONS: GENERAL OVERVIEW

A school district can violate Title IX when “sexual harassment” occurs:

• In the district’s education program or activity;
• By any person, against any person in the United States;
• Any district employee has notice of the allegations of sexual harassment (“actual knowledge”); and
• The district is deliberately indifferent in its response.

WHAT HAS NOT CHANGED?

Obligation to investigate allegations of sexual misconduct

• Previously, districts investigated allegations under Board Policy 2:260, Uniform Grievance Procedure; or Board Policy 7:180, Prevention of and Response to Bullying, Intimidation, and Harassment

Title IX investigations of allegations not relating to sexual harassment

Rules regarding athletic participation, employment, and single-sex education

WHAT HAS CHANGED?

Terminology and Definitions

Policy, Notice, and Website Posting Requirements

Grievance Procedure and Investigation Process

Terminology

TERMINOLOGY

Sexual Harassment

Education Program or Activity

Title IX Coordinator

Actual Knowledge

Deliberate Indifference

Complainant

Respondent

Report of Sexual Harassment

Formal Complaint

Supportive Measures

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SEXUAL HARASSMENT

Previously, Title IX regulations did not refer to or define “sexual harassment”

Amended Title IX regulations explicitly define sexual harassment

SEXUAL HARASSMENT

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

• (1) 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 (quid pro quo);
• (2) Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies the person equal access to the district’s education program or activity (hostile environment); or
• (3) Sexual assault, dating violence, domestic violence, or stalking as defined under the Clery Act/Violence Against Women Act.

SEXUAL HARASSMENT: EXAMPLES

Touching

Crude jokes or pictures

Discussions of sexual experiences

Teasing related to sexual characteristics

Spreading rumors related to a person’s alleged sexual activities

Rape

Sexual battery

Sexual abuse

Sexual coercion

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EDUCATION PROGRAM OR ACTIVITY

A school district must respond when sexual harassment occurs in the district’s education program or activity, against a person in the United States

Education program or activity includes any location, event, or circumstance over which the district exhibits substantial control over both the alleged harasser and the context in which the harassment occurred

• Examples: school, field trip, extracurricular activity
• Includes via technology (email, internet, social media, etc.)

TITLE IX COORDINATOR

Districts must designate and authorize an employee to coordinate the district’s efforts to implement the law

Typically, districts do not employ a full-time Title IX Coordinator; designated employee(s) usually combine Title IX Coordinator responsibilities with other assigned duties

Consider adding “Title IX Coordinator” to existing job title of currently designated employee(s) and reviewing job duties to ensure sufficient authority and time to carry out role

ACTUAL KNOWLEDGE

When a school district has actual knowledge of sexual harassment in its education program or activity against a person in the United States, it must respond promptly and in a manner that is not deliberately indifferent

A school district has actual knowledge when any employee has notice of the allegations of sexual harassment

Notice also can include report of sexual harassment to Title IX Coordinator

ACTUAL KNOWLEDGE: REPORTING TO THE TITLE IX COORDINATOR

ALL district employees must immediately report sexual harassment allegations to the Title IX Coordinator (and building administrator/supervisor)

Failure to make or forward a report to the Title IX Coordinator (and building administrator/supervisor) may result in employee discipline, up to and including discharge

Also immediately report to DCFS if allegations raise suspicion of child abuse or neglect

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DELIBERATE INDIFFERENCE

A school district must respond promptly and in a manner that is not deliberately indifferent when it has actual knowledge of sexual harassment in an education program or activity against a person in the United States

Adopts Gebser/Davis standard, which is a higher legal standard than the previous OCR standard

The district’s response must:

• Be prompt
• Treat Complainants and Respondents equitably
• Inform Complainant of supportive measures and process for filing a Formal Complaint, by Title IX Coordinator
• Follow Title IX grievance process

COMPLAINANT

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

May or may not be the individual who reported the allegation of sexual harassment to the Title IX Coordinator or any district employee

May file Formal Complaint with the Title IX Coordinator

RESPONDENT

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

The district must have substantial control over the Respondent (alleged harasser) and the context in which the alleged conduct occurred

REPORT OF SEXUAL HARASSMENT

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

May be in person, mail, phone, email, or by any means that results in the Title IX Coordinator receiving the report

May be made at any time, including during non-business hours

May be verbal or written, and may be anonymous

To the Title IX Coordinator or any district employee

District employees must promptly forward all reports of sexual harassment to the Title IX Coordinator

FORMAL COMPLAINT

A 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

May be filed with the Title IX Coordinator in person, mail, email, or any other method made available by a district; may be a hard copy or electronic document

Must contain the Complainant's physical or digital signature, or otherwise indicate that the Complainant is the person filing the Formal Complaint

If the Title IX Coordinator signs the Formal Complaint, he/she does not become the Complainant or otherwise a party to the complaint

At the time a Formal Complaint is filed, the Complainant must be participating in or attempting to participate in a district’s education program or activity

SUPPORTIVE MEASURES

Purpose is to restore or preserve equal access to the district’s education program or activity without unreasonably burdening the other party

Include measures designed to protect safety of all parties or district’s educational environment, or deter sexual harassment

Non-disciplinary, non-punitive measures

• Removing Respondent from an activity may be considered unreasonably burdensome and punitive, unless an “emergency removal”

SUPPORTIVE MEASURES

Counseling services

Extensions of deadlines or other course-related adjustments

Modifications of work or class schedules

Hall escort

Mutual restrictions on contact between parties

Changes in work/school locations

Leaves of absences

Increased supervision of certain school areas

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Policy and Notice Requirements

NOTICE OF POLICIES AND PROCEDURES

Must provide notice of the district’s nondiscrimination policies and grievance procedures to the following groups:

• Students
• Parents/Legal Guardians
• Employees
• Unions or professional organizations holding agreements with the district
• Applicants for employment

Includes notice of Board Policy 2:260, Uniform Grievance Procedure; Board Policy 2:265, Title IX Sexual Harassment Grievance Procedure; and applicable administrative procedures

WEBSITE POSTING AND NOTICE REQUIREMENTS

Must post policies and grievance procedures on the district’s website

Must post Title IX Coordinator’s contact information (name, title, address, phone number, email) on the district’s website and print in any handbook to persons entitled to notification (see previous list)

Must post Title IX training materials on the district’s website; if the district does not have a website, must have the training materials available for members of the public to inspect

Title IX Sexual Harassment�Grievance Process

TITLE IX GRIEVANCE PROCESS

Two-fold district response:

• (1) Upon “actual knowledge” of allegation (report to any district employee):
• Title IX Coordinator promptly contacts the Complainant to discuss the availability of supportive measures and explain the process for filing a Formal Title IX Sexual Harassment Complaint
• (2) Upon receiving/filing Formal Complaint:
• Title IX Coordinator initiates Formal Title IX Sexual Harassment Complaint Grievance Process

TITLE IX GRIEVANCE PROCESS: ROLES

Title IX Coordinator: Individual authorized to coordinate the district’s compliance efforts with Title IX

Investigator: Individual designated by the Title IX Coordinator to investigate a Formal Title IX Sexual Harassment Complaint

Initial Decision-Maker: Individual designated by the Title IX Coordinator to reach a determination regarding responsibility in a Formal Title IX Sexual Harassment Complaint

Appellate Decision-Maker: Individual/group that reviews an appeal of the Initial Decision-Maker’s determination of responsibility or the dismissal of a Formal Complaint (or allegations therein)

TITLE IX GRIEVANCE PROCESS

STEP 1

INITIAL MEETING WITH COMPLAINANT

Upon notice/report of the sexual harassment allegation, Title IX Coordinator must promptly:

• Contact the Complainant (alleged victim) to discuss the availability of supportive measures
• Consider the Complainant’s wishes with respect to supportive measures
• Inform the Complainant of the availability of supportive measures with or without the filing of a Formal Complaint
• Explain the process for filing a Formal Complaint

Remember: Follow grievance process before imposing disciplinary measures on Respondent

STEP 2

FORMAL COMPLAINT

At time of filing a Formal Complaint, Complainant must be participating in or attempting to participate in the district’s education program or activity

Complainant may file a Formal Complaint with the Title IX Coordinator in person, by mail, by email, or other method made available by the district, at any time

May be a hard copy or electronic document; must contain the Complainant's physical or digital signature, or otherwise indicate that the Complainant is the person filing the Formal Complaint

FILING A FORMAL COMPLAINT

Third party reporter cannot file a Formal Complaint

However, Title IX Coordinator may sign a complaint to trigger investigation to ensure the district is not responding with “deliberate indifference”

• If the Title IX Coordinator signs the Formal Complaint, s/he does not become the Complainant or otherwise a party to the complaint

May entail implementing the formal grievance process over the Complainant’s objections

WRITTEN NOTICE OF FORMAL COMPLAINT

Upon receipt of (or signing) a Formal Complaint, the district must provide written notice to all known parties

The notice must be provided in sufficient time to give the Respondent time to prepare a response before any initial interview

WRITTEN NOTICE OF FORMAL COMPLAINT

Written notice must include:

• Notice of grievance process, including any informal resolution process
• Notice of allegations, including sufficient detail to allow Respondent to prepare a response:
• Identities of parties, if known
• Conduct alleged to be sexual harassment
• Date and location of conduct, if known

WRITTEN NOTICE OF FORMAL COMPLAINT

Statement that the Respondent is presumed not responsible for the conduct and that responsibility will be determined at the conclusion of the grievance process

Notice of the parties’ right to have an advisor of their choice (may be an attorney) and to inspect and review evidence

Notice of any provision in the district’s code of conduct (e.g., Board Policy 7:190) that prohibits knowingly making false statements or providing false information in the grievance process

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WRITTEN NOTICE OF FORMAL COMPLAINT

The district must provide additional written notice(s) to all parties if, during the investigation, the district decides to investigate allegations not included in the first written notice

Decide whether the district will conduct investigation or appoint a qualified investigator (best practice: provide written notice of investigator if appointed)

STEP 3

EMERGENCY REMOVAL

The district may remove Respondent from the education program or activity on an emergency basis to protect a student or other individual from “an immediate threat to physical health or safety” after an individualized safety and risk analysis

Must provide Respondent with notice and opportunity to challenge decision immediately following the removal (best practice: written notice)

Considerations:

• Interaction with SB 100 for Respondent-Student: must follow 105 ILCS 5/10-22.6
• Remember IDEA and Section 504 rights: emergency removal can trigger “change of placement” for Respondent-Student
• Placing Respondent-Employee on administrative leave during the pendency of a grievance process

STEP 4

DISMISSAL OF FORMAL COMPLAINT

Amended Title IX regulations establish mandatory and discretionary reasons a Title IX sexual harassment Formal Complaint, or an allegation therein, may be dismissed during or after an investigation

DISMISSAL OF FORMAL COMPLAINT

Mandatory Dismissal

If the conduct would not constitute sexual harassment as defined by the Title IX regulations, even if proved

If the conduct did not occur in the district’s program or activity

If allegations did not occur against a person in the United States

Discretionary Dismissal

If Complainant notifies the Title IX Coordinator at any time that s/he wishes to withdraw the Formal Complaint or any allegation therein

If Respondent is no longer enrolled in or employed by the district

If specific circumstances prevent the district from gathering evidence sufficient to reach a determination as to the Formal Complaint or any allegation therein (e.g., passage of several years between Formal Complaint and alleged conduct; Complainant ceases to cooperate with grievance process)

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34 C.F.R. § 106.45(b)(3)

DISMISSAL OF FORMAL COMPLAINT

If the district dismisses a Formal Complaint, or allegation(s) therein, written notice must be promptly provided to both parties simultaneously

Must include the reason(s) for mandatory or discretionary dismissal, and the right to appeal the dismissal

If dismissing a Formal Complaint, but investigating allegation(s) under different process, e.g., Board Policies 2:260 or 7:180, include in the written notice

The district must document its rationale for dismissal to show that it is not acting in a deliberately indifferent manner

STEP 5

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INFORMAL RESOLUTION PROCESS

Prohibited unless Formal Complaint is filed

Allowed at any time after a Formal Complaint is filed and during the grievance process, prior to reaching a determination regarding responsibility

Cannot involve a full investigation and adjudication of the allegations

Cannot be offered for a complaint alleging that an employee harassed a student

Not defined, but may encompass a broad range of conflict resolution strategies, including, but not limited to, arbitration, mediation, or restorative justice

INFORMAL RESOLUTION PROCESS: REQUIREMENTS

Written notice to both parties disclosing:

• Allegations
• Informal resolution process requirements
• Any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared

Both parties provide voluntary, written consent

STEP 6

TITLE IX INVESTIGATION REQUIREMENTS

When investigating a complaint and throughout the grievance process, the Investigator must:

• Ensure that burden of proof and of gathering evidence rests on the district, rather than parties
• Provide an equal opportunity for parties to present witnesses and evidence (fact and expert witnesses; inculpatory and exculpatory evidence)
• Not restrict either party’s ability to discuss the allegations or gather and present evidence

TITLE IX INVESTIGATION REQUIREMENTS

Provide the parties with the same opportunities to have others present during interviews and other parts of the grievance process, including an advisor/attorney of their choice

Provide, to a party who is invited or expected to attend, written notice of date, time, participants, purpose, and location of any investigative interviews or other meetings, with sufficient time to allow the party to prepare to participate

TITLE IX INVESTIGATION REQUIREMENTS

Provide the parties (and their advisors/attorneys, if any) an equal opportunity to inspect and review any evidence obtained during the investigation that is directly related to the allegations in the Formal Complaint

Including evidence the district does not intend to rely on in reaching a determination regarding responsibility, and inculpatory or exculpatory evidence

TITLE IX INVESTIGATION REQUIREMENTS

Prior to the completion of the investigation report, send to each party (and the party’s advisor/attorney, if any) the evidence subject to inspection and review in an electronic format or a hard copy

Provide each party with 10 days to submit a written response

Upon receipt of a party’s written response to the evidence, review the response and send a copy to the other party

Note: PRESS 2:265-AP2 specifies 10 school business days so all days within the policy and procedures are “school business days”

TITLE IX INVESTIGATION REQUIREMENTS

Prepare an investigation report that fairly summarizes all relevant evidence

Send the investigation report to each party (and the party’s advisor/attorney, if any) the investigation report, in an electronic format or hard copy, for their review and written response

The investigation report must be sent to the parties 10 days before the Initial Decision-Maker’s determination regarding responsibility

Note: PRESS 2:265-AP2 specifies 10 school business days so all days within the policy and procedures are “school business days”

TITLE IX INVESTIGATION REQUIREMENTS

At the conclusion of the investigation, Investigator sends to the Initial Decision-Maker in an electronic format or hard copy:

• Formal Complaint;
• All evidence gathered during the investigation that is directly related to the Formal Complaint’s allegations (including evidence the district does not intend to rely on in reaching a determination regarding responsibility, and inculpatory or exculpatory evidence); and
• Investigation report with any written response received from the parties.

STEP 7

INITIAL DECISION-MAKER

Cannot be the Investigator or the Title IX Coordinator

Reviews from Investigator:

• Formal Complaint;
• All evidence gathered during the investigation that is directly related to the Formal Complaint’s allegations (including evidence the district does not intend to rely on in reaching a determination regarding responsibility, and inculpatory or exculpatory evidence); and
• Investigation report, with any written response received from the parties.

Facilitates “cross examination” question and answer among parties

Issues a written determination to the parties

HEARINGS

K-12 school districts are not required to conduct live hearings

Instead, K-12 school districts must provide each party the opportunity, after the completion of the investigation report, to submit written, relevant questions that the party wants asked of another party or witness, provide each party with the answers, and provide for limited follow-up questions

“CROSS EXAMINATION” QUESTION & ANSWER

The Initial Decision-Maker:

Provides the parties with written notice of the opportunity to submit written, relevant questions that a party wants asked of any party or witness; include description of the process and timelines

Determines which questions to forward to any party or witness for answers

If any proposed questions are excluded as not relevant, provides the proposing party with a written explanation of the decision to exclude a question as not relevant

• Questions regarding a Complainant’s prior sexual behavior or sexual predisposition are not relevant, unless such questions and evidence are offered to establish that another person committed alleged conduct or that conduct was consensual

“CROSS EXAMINATION” QUESTION & ANSWER

Forwards relevant questions to any party or witness with instructions to submit answers to the Initial Decision-Maker

Upon receipt of answers to questions, provides each party with copies of the answers

Follows the same process for the additional, limited follow-up questions from each party

Timelines are not specified in the Title IX regulations; PRESS 2:265-AP2 uses 5 school business days for each step

STEP 8

DETERMINATION OF RESPONSIBILITY

The Initial Decision-Maker must apply the district’s standard of evidence and issue a written determination of responsibility simultaneously to the parties that includes:

• Allegations that potentially constitute sexual harassment as defined in the Title IX regulations
• Description of the procedural steps taken from the receipt of the Formal Complaint to the determination (including notifications, interviews, methods of gathering evidence, etc.)
• Findings of fact supporting the determination

DETERMINATION OF RESPONSIBILITY

Written Determination, continued:

• Conclusions regarding application of the code of conduct to the facts
• Statement of, and a rationale for, the result as to each allegation, including:
• A determination of responsibility;
• Any disciplinary sanctions imposed on the Respondent; and
• Whether remedies to restore or preserve equal access to the district’s education program or activity will be provided to the Complainant
• Procedures and permissible bases for the Complainant or Respondent to appeal

STEP 9

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APPEAL

Must offer to both parties for dismissal of Formal Complaint, or allegations therein, and determinations of responsibility in specified circumstances:

• Procedural irregularity
• New evidence now available that could affect the outcome and was not reasonably available at the time of the determination
• Conflict of interest or bias of the Title IX Coordinator, Investigator, or Decision-Maker

The district may offer other bases for appeal; check Board Policy 2:265

APPEAL

Title IX Coordinator, upon receipt of an appeal:

• Issues written notice to both parties:
• Informing the parties that an appeal has been filed
• Provides both parties a specified amount of time to submit a written statement in support of, or challenging, the outcome
• Promptly forwards all materials relevant to the appeal to the Appellate Decision-Maker

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APPEAL

Appellate Decision-Maker = Board of Education or Board-appointed examiner (individual or group)

Cannot be or include Title IX Coordinator, Investigator, and Initial Decision-Maker

Must be impartial, without conflict of interest or bias

Decides whether to affirm, reverse, or amend the Initial Decision-Maker’s written determination regarding responsibility or the dismissal

Issues written decision describing the result of the appeal and the rationale for the result

Written decision must be provided simultaneously to both parties

EVALUATING THE APPEAL

Review all materials relevant to the appeal, including:

• Appeal of dismissal or written determination; notice of appeal; written statements by parties (if any) in support of, or challenging, the outcome subject to appeal; dismissal written notice or written determination; all relevant evidence

Make reasoned conclusions, including as to the bases for appeal and relevant evidence

• Must do so impartially, without prejudgment or bias about the facts at issue or the parties, or generally about complainants or respondents
• Must not rely on stereotypes
• Cannot let personal relationships influence evaluation of appeal

Apply preponderance of the evidence standard

APPEAL

Timelines are not specified in the Title IX regulations

PRESS 2:265-AP2 uses:

• 10 school business days as the deadline for filing an appeal, in writing, with the Title IX Coordinator by the Complainant or Respondent after receipt of the Initial Decision-Maker’s written determination or the notice of dismissal
• 30 school business days for the Appellate Decision-Maker to make its decision
• 5 school business days after the Appellate Decision-Maker’s decision to send the written decision to both parties

Other Requirements

RECORDKEEPING

Must keep Title IX records for a minimum of 7 years

Remember student and personnel record requirements under State and federal laws

TITLE IX: TRAINING

All district employees:

• Definition of sexual harassment
• Scope of the district’s education program or activity
• All relevant district policies and procedures
• Requirement to promptly forward all reports of sexual harassment to Title IX Coordinator

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Additional training for Title IX roles—Title IX Coordinator(s), Investigator(s), Initial and Appellate Decision-Makers, and Informal Resolution Process Facilitator(s):

• How to conduct an investigation and implement the grievance process
• How to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias
• Investigators: Issues of relevance to create an investigation report that fairly summarizes relevant evidence
• Decision-Makers: Issues of relevance of questions and evidence, including when questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant

34 C.F.R. § 106.45(b)(1)(iii)

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Questions

Tina Christofalos ▪ achristofalos@hlerk.com�Michelle A. Todd ▪ mtodd@hlerk.com

This is intended solely to provide information to the school community. �It is not legal advice or a substitute for legal counsel. �It is intended as advertising but not as a solicitation of an attorney/client relationship.

www.hlerk.com @hodgesloizzi