The Title IX Sexual Harassment Regulations: �Comprehensive Training for Title IX Coordinators, Administrators, and Relevant Personnel��North Reading Public Schools��August 7, 2025�

MACAVOY, JOYCE & KOWALSKI, P.C.

55 PROVIDENCE HIGHWAY

NORWOOD, MA 02062

WWW.NMJEDLAW.COM

Title IX of the Education Amendments Act of 1972�20 U.S.C. §1681-§1688

• “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 program or activity receiving federal financial assistance.”

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• Sexual harassment is a form of sex discrimination.

MACAVOY, JOYCE & KOWALSKI, P.C.

The Title IX Sexual Harassment Regulations

The 2020 Regulations:

• The 2020 Title IX Sexual Harassment Regulations went into effect on August 14, 2020. These were the first set of federal regulations governing how schools respond to complaints of sexual harassment.
• The regulations require that schools create and implement a procedurally intensive grievance procedure for responding to and investigating reports and complaints of sexual harassment.
• The regulations prohibit the use of a single investigator/decision maker model and mandate a multi-step team

(“Title IX Team”) approach to conducting investigations and determining whether sexual harassment has occurred. The required regulatory process places emphasis on ensuring the rights of the accused in the Investigation process.

The 2024 Regulations:

The 2020 regulations were substantially revised by the Biden Administration effective August 2024 and all public schools were required to immediately develop new grievance procedures to comply with the revised requirements.

• The 2024 regulations expanded the scope of regulations to cover all forms of sex discrimination as well as sex-based harassment on the basis of sexual orientation and/or gender identity.
• The 2024 regulations eliminated many of the 2020 procedural requirements and also allowed for the use of a single investigator/decision maker model in investigating and making determinations on complaints of “sex-based” harassment.

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2024 Title IX Regulations Invalidated

On January 9, 2025, the United States District Court for Eastern Kentucky issued a decision striking down the 2024 Amendments to Title IX of the 1972 Education Amendments to the Civil Rights Act (“Title IX”), codified at 34 CFR Part 106.

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• In the decision, the District Court held that the U.S. Department of Education exceeded its authority when it expanded Title IX to prohibit discrimination on the basis of gender identity. While there were parts of the 2024 Title IX Amendments that were not at issue in the case, such as the inclusion of parent, family, or marital status and pregnancy-related conditions, the Court held that the issues raised in the case fatally tainted the 2024 Amendments as a whole and that, consequently, the 2024 Amendments are invalid and are set aside in their entirety.

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On February 4, 2025, the US DOE’s Office for Civil Rights issued a directive to all public schools to immediately cease compliance with the 2024 Title IX regulations and to revert to the definitions and procedural requirements set forth in the previous, 2020, Title IX regulations.

District’s Duty to Respond to Sexual Harassment under Title IX

• When must the district respond under Title IX?
• Whenever the district has actual knowledge, which means whenever any employee receives notice of alleged sexual harassment of a student or employees within a district education program or activity of the district in the U.S.

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• The district’s response must be prompt and not deliberately indifferent, which means not clearly unreasonable in light of the known circumstances.

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Title IX Definition of Sexual Harassment

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1. Any instance of quid pro quo harassment by a employee; or

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• Unwelcome conduct on the basis of sex that is sufficiently severe and pervasive and objectively offensive conduct, effectively denying a person equal educational access; or

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• Any instance of sexual assault, dating violence, domestic violence, or stalking as defined by the Clery Act and the Violence Against Women Act.

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Quid pro quo Sexual Harassment

An employee conditioning the provision of an aid, benefit, or service on an individual’s participation in unwelcome sexual conduct.

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Severe, and pervasive, and objectively offensive sex-based conduct

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Unwelcome conduct, on the basis of sex, determined by a reasonable person to be so severe, and pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.

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Examples

• Verbal statements
• Physical acts or gestures
• Public postings
• Electronic communications

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Clery Act �& �Violence Against Women Act (VAWA) Offenses

• Sexual Assault
• Dating Violence
• Domestic Violence
• Stalking

Sexual Assault, Dating Violence, Domestic Violence, or Stalking

• Sexual Assault:
• Under Title IX, the term “sexual assault” means an offense classified as a sex offense under the Uniform Crime Reporting System’s National Incident-Based Reporting System. This includes Rape, Sodomy, Sexual Assault With An Object, or Fondling directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent; also, unlawful sexual intercourse.

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Sexual Assault, Dating Violence, Domestic Violence, or Stalking

• 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.
• 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. In Massachusetts, pursuant to M.G.L. c. 265, § 13B, a child under the age of 14 is incapable of giving consent to indecent touching.

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Sexual Assault, Dating Violence, Domestic Violence, or Stalking

• 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.
• Incest - Nonforcible sexual intercourse between persons who are related to each other�within the degrees wherein marriage is prohibited by law.
• Statutory Rape - Nonforcible sexual intercourse with a person who is under the statutory age of consent. Age of consent in Massachusetts is 16. M.G.L. c. 265, s. 22A.

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Sexual Harassment: Recap

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Always per se sexual harassment regardless of the impact on the complainant.

Quid pro quo

Sexual assault, dating violence, domestic violence, or stalking

Sexual Harassment: Recap

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Hostile Environment sexual harassment always requires a determination of: Severity; and Pervasiveness; and Objective offensiveness; and Denial of alleged victim’s equal access to education.

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Compare & Contrast to Bullying Definition

, Bullying is defined under M.G.L. c. 71, s. 37O as:

• The repeated use by one or more students or by a member of a school staff including, but not limited to, an educator, administrator, school nurse, cafeteria worker, custodian, bus driver, athletic coach, advisor to an extracurricular activity or paraprofessional of a written, verbal or electronic expression or a physical act or gesture or any combination thereof, directed at a victim that:
• Causes physical or emotional harm to the victim or damage to the victim’s property;
• Places the victim in reasonable fear of harm to himself or of damage to his property;
• Creates a hostile environment at school for the victim;
• Infringes on the rights of the victim at school; or
• Materially and substantially disrupts the education process or the orderly operation of a school.

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Hostile Environment Definition under Bullying Statute

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• Hostile environment: a situation in which bullying causes the school environment to be permeated with intimidation, ridicule or insult that is sufficiently severe or pervasive to alter the conditions of the student's education.

Compare & Contrast to Definition of Harassment Under Statutes and Regulations Other Than Title IX

• Race, Color, National Origin
• Title VI of the Civil Rights Act of 1964, M.G.L. c. 76, §5
• Religion
• M.G.L. c. 76, §5, and Title VI of the Civil Rights Act of 1964
• Disability
• Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act
• Gender, Sexual Orientation and/or Gender Identity
• M.G.L. c. 76, §5
• M.G.L. c. 151C
• Title IX of the Education Amendments of 1972

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Compare & Contrast to Definition of Harassment Under Statutes and Regulations Other Than Title IX

“Harassment” is unwelcome conduct, whether verbal or physical, that is based on: race, age, sex, color, national origin, religion, or disability, that creates a hostile school environment.

• Examples of Harassment
• Display or circulation of written materials or pictures.
• Verbal abuse or insults
• racial slurs, sexist or homophobic comments, stereotyping conduct
• Actions or speech
• threats, physical assault, sexual assault, sexually explicit conduct.

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Hostile Environment Definition – Bullying and Non-Title IX Harassment

• A hostile environment is created when

the harassing conduct is sufficiently:

• severe, or
• pervasive, or
• persistent
• such that it denies or limits the ability of an individual to participate in, or benefit from, the services, activities or privileges provided by the school.

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Title IX Leads the Way …

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Under the Title IX regulations, if a report comes in regarding sexual harassment, you MUST go through the Title IX process first.

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If Title IX process doesn’t fit (for example, a mandatory or discretionary dismissal, or if alleged victim does not wish to pursue a formal complaint) … then you can go through state sexual harassment or bullying process.

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Scope of the District’s Responsibility under the Title IX Sexual Harassment Regulations

• What locations are covered?
• Any education program or activity of the district in the U.S.
• Education program or activity: locations, events, or circumstances over which the district exercised substantial control over both the accused and the context in which the sexual harassment occurred.

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What does this mean for other off-campus conduct (conduct within the U.S.)?

• Did the off-campus conduct take place in whole or in part at a location, event, or circumstance over which the district exercised substantial control over both the respondent and the context in which the sexual harassment occurred?

School Field Trip vs. Private Weekend House Party

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What does this mean for electronic communications/social media?

Was this a location, event or circumstance over which the district exercised substantial control over both the accused and the context in which the sexual harassment occurred?

School computer

vs.

Cell phone use at school

vs.

Cell phone use at home

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Is harassment on the basis of sexual orientation or gender identity subject to the Title IX Grievance Procedures?

• The United States Department of Education notified all public Schools on February 4, 2025, of the Department's determination that harassment on the basis of sexual orientation and/or gender identity is not subject to the Title IX Grievance Procedures.
• Complaints of harassment on the basis of sexual orientation and/or gender identity must now be investigated in accordance with the District’s Non-Title IX Civil Rights Grievance Procedure and applicable state laws.
• Harassment on the basis of sexual orientation or gender identity is still a violation of Massachusetts state law.
• M.G.L. c. 76, § 5.

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MACAVOY, JOYCE & KOWALSKI, P.C.

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What about sexual harassment that does not fit within the Title IX definitions?

• The District continues to have an obligation to respond to sexual harassment of students and employees that does not meet the Title IX definition of sexual harassment but would meet the definition under Massachusetts state law and/or Title VII (discrimination in employment based upon sex and other protected classes).
• The specific due process procedures for investigating Title IX sexual harassment formal complaints are not, however, required for sexual harassment or discrimination complaints that fall outside the scope of Title IX. For those complaints, the district should follow its standard Civil Rights Grievance Procedures and conduct a prompt and equitable investigation to comply with state law and Title VII.

MACAVOY, JOYCE & KOWALSKI, P.C.

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Sexual Harassment under Massachusetts State Law

Any sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

1. Quid pro quo: submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of the provision of the benefits, privileges or placement services or as a basis for the evaluation of academic achievement or employment; or
2. Hostile Environment: such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s education or employment by creating an intimidating, hostile, humiliating or sexually offensive educational environment.

See M.G.L. c. 151B (employment) and M.G.L. c. 151C (education)

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M.G.L. c. 76, § 5�(in part)

• “No person shall be excluded from or discriminated against in admission to a public school of any town, or in obtaining the advantages, privileges and courses of study of such public school on account of race, color, sex, gender identity, religion, national origin or sexual orientation.”

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Responding to Reports and Complaints of Sexual Harassment under the Title IX Grievance Procedures �

The Title IX Team

• Title IX Coordinator
• Investigator(s)
• Decision-Maker
• Appeals Officer
• Informal Resolution Facilitator(s)

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Title IX Team Members �Impartiality Required

A conflict of interest can create a bias for or against a party.

• Types of conflict and impartiality to consider:
• Playing too many roles in the process.
• Decision-Makers who are not impartial.
• Training materials are biased.
• All Title IX Team members must avoid prejudgment of the facts at issue and must afford the accused the presumption of innocence.

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Title IX Team has no side other than the integrity of the process!

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MACAVOY, JOYCE & KOWALSKI, P.C.

Title IX Coordinator

Every school district must appoint a District-level Title IX Coordinator:

• Can have more than one Title IX Coordinator.
• District can also appoint Deputy Title IX Coordinators (i.e., Athletics, Human Resources)

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• Title IX Coordinator’s Responsibilities:
• Leads and coordinates compliance efforts for Title IX of the entire district.
• Must have an understanding of Title IX, the Title IX Sexual Harassment regulations, and the District’s Title IX Grievance Procedures.
• Must have autonomy and independence
• Should report directly to the Superintendent.
• Cannot be the Decision-Maker or Appeals Officer.
• Can serve as the Investigator or
• Can serve as the Informal Resolution Facilitator.
• Cannot serve as both the Investigator and Informal Resolution Facilitator, but not both.

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Receipt of Report of Sexual Harassment:�Initial Contact with Alleged Victim/Parents/Guardians

Upon receipt of a report of conduct that would, if true, constitute sexual harassment under Title IX, the Title IX Coordinator must:

• Promptly contact the identified victim to explain the process for filing a Formal Title IX Sexual Harassment complaint.
• Provide the alleged victim and parents/guardians with a copy of the District’s Title IX Sexual Harassment Grievance Procedure.
• Inform the victim of the availability of supportive measures and consider the victim’s wishes with respect to those measures.
• In some limited circumstances, the Coordinator may also contact the accused respondent to provide supportive measures prior to filing of formal complaint. Not a requirement until after a Formal Title IX Compliant has been filed, however.
• Explain that supportive measures will be considered and provided regardless of whether a Formal Complaint is filed.
• Encourage victim/parents/guardians to follow up promptly to notify the District as to whether or not they intend to file a formal complaint.

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Consideration of Supportive Measures

• Document the supportive measures requested by the complainant/parents.
• Determine which supportive measures will be implemented.
• Examples: counseling; extension of deadline(s); other course-related adjustment(s); modifications of schedule (class or employment); mutual restrictions on contact between the parties; campus escort service; leave of absence from employment; increased security and monitoring of certain areas of the building/campus; other similar measures.
• No Contact Orders: most often, no contact orders will be mutual.
• Ensure the supportive measures are individualized and non-disciplinary.
• Supportive measures may not unreasonably burden the accused.

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Supportive Measures

• Must be discussed and considered for all complaints, whether formal or informal. May be provided whether the complaint is formal or informal.
• Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.
• Districts may continue supportive measures after a determination of non-responsibility.
• Supportive Measures: Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or respondent before or after the filing of a formal complaint or where no formal complaint has been filed.
• If an action is listed as a disciplinary procedure which may be applied if a respondent is deemed responsible, it cannot be employed as a supportive measure.
• Does not preclude District from implementing emergency removal under Title IX.

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Supportive Measures

• Designed to restore or preserve equal access to the District’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the recipient’s educational environment, or deter sexual harassment.
• “Unreasonable burden” on a complainant or respondent is fact-specific.
• In commentary to regulations, U.S. D.O.E. notes that schedule changes are often reasonable, but whether limiting participation in sports or extra-curriculars is unreasonable could be more fact-specific.
• District must maintain confidentiality of any supportive measures provided to the complainant or respondent, to the extent that the confidentiality would not impair the ability of the District to provide supportive measures.

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Supportive Measures: �Examples

• Counseling
• Extensions of deadlines or other course-related adjustments
• Modifications of work or class schedules
• Campus escort services
• Mutual restrictions on contact between the parties

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• Changes in work or housing locations
• Leaves of absence
• Increased security and monitoring of certain areas of the campus
• Other similar measures

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This is a non-exhaustive list and does not preclude Districts from implementing other measures that do not place unreasonable burdens on either party and are not disciplinary or punitive in nature. Carefully crafted supportive measures must be created after a fact-specific inquiry.

Documentation of Initial Contact�

• Following the initial meeting and the Coordinator’s decisions on supportive measures, the Coordinator must send written notice to the victim and the victim’s parents documenting the initial contact and the supportive measures to be implemented.
• If any requested supportive measures are denied, document why the denial was reasonable.
• Supportive measures must be kept confidential!
• Only exceptions are measures like mutual no contact orders – both parties need to be aware there is a no contact order in place so the District can enforce it.

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Discipline Outside of Title IX Process Prohibited

• “No [school district] or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by title IX or this part, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under [these regulations].”
• “Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by title IX or [these regulations] constitutes retaliation.”

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Formal Complaint Process

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Who can file a Formal Complaint?

1. Victim/target of the alleged sexual harassment
2. Parental Authority – A parent/legal guardian who retains legal rights over a student may file a formal complaint on their child’s behalf.
3. District-wide Title IX Coordinator

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• Reports filed by a Third Party – not a formal complaint
• While reports filed by a third party trigger the district’s obligation to respond, a formal complaint may only be signed by the complainant (or his/her parent/guardian) or the Title IX Coordinator.
• Anonymous Reports – not formal complaint

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Filing the Formal Complaint

• A formal complaint may be filed at any time, including during non-business hours. Complaints submitted outside of normal business hours should be deemed received on the following school working day.
• A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information for the Title IX Coordinator provided by the district, and by any additional method designated by the district.
• At the time of the filing of the formal complaint, the alleged victim must be participating in or attempting to participate in the education program or activity of the district with which the formal complaint is filed.

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Formal Complaint Process:�Filing the Formal Complaint

The Districts may consolidate formal complaints where the allegations arise out of the same facts or circumstances.

• Title IX Coordinator receives two complaints from students about Student A and Student B regarding allegations of sexual harassment by both Student A and Student B that occurred at the same time in the bathroom during Senior Prom.

🡪 Consolidate!

• Student C files a complaint of sexual harassment by D. Student D files a counter complaint of sexual harassment by Student C.

🡪 Consolidate!

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Retaliation and Discipline Outside of Title IX Process Prohibited

• “No [school district] or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by title IX or this part, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under [these regulations].”
• “Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by title IX or [these regulations] constitutes retaliation.”

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Victim Chooses Not to File Formal Complaint

• Title IX Coordinator cannot force the victim to inform the District whether they are going to file a formal complaint.
• There is no statute of limitations on a Title IX complaint.
• If they are not going to file within a reasonable period of time, consider filing complaint as the Title IX Coordinator.
• Consider best interests of community, information shared by complainant/parents, individual circumstances of the situation.
• If filing as Title IX Coordinator, use form “Notice to Complainant of Title IX Coordinator’s Decision to File a Title IX Formal Complaint” in Title IX Manual.
• Title IX Coordinator must file formal complaint on victim’s behalf if report involves an a pattern of alleged sexual harassment by an individual in a position of authority.

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Frequently Asked Question

If the Complainant does not want to file a formal complaint under Title IX and the Title IX coordinator does not find a basis to sign a complaint, can the District then proceed with school discipline under school rules violations?

• No. The grievance process must be followed before the imposition of any disciplinary sanctions or other actions against a respondent.
• Supportive measures should be offered to the complainant, and documentation of the offer and/or implementation of supportive measures and the complainant’s decision not to file a formal complaint should also be made.
• Supportive measures must be non-punitive, non-disciplinary, and not place an unreasonable burden on either party.

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Formal Complaint Filed �Initial Assessment by Title IX Coordinator

Conduct initial assessment of Formal Complaint signed by the alleged victim or the victim’s parent/guardian?

• Is the Formal Complaint subject to Mandatory dismissal?
• Is the Formal Complaint subject to Discretionary Dismissal?

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*Use “Initial Assessment of Formal Complaint” checklist in Title IX Manual to document your decision, and the “Mandatory or Discretionary Dismissal of Formal Complaint - Notice to the Parties” letters if the complaint will be dismissed (See Title IX Handbook pp. 20-24)

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Mandatory Dismissal

• Mandatory dismissal – Title IX Coordinator MUST dismiss the formal complaint if:
• Even if true, the alleged conduct would not constitute sexual harassment as defined by Title IX; or
• The alleged conduct did not occur in a District education program or activity; or
• District Education program or activity: locations, events, or circumstances over which the district exercised substantial control over both the respondent and the context in which the sexual harassment occurred.
• The alleged conduct did not occur within the United States.
• The Complainant (victim) was not, at the time of filing, enrolled in the District and was not seeking to return.

If a complaint is dismissed under Title IX, but could still violate state sexual harassment standards, then we must proceed in accordance with our Civil Rights Grievance Procedure (non-Title IX Sexual Harassment).

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Discretionary Dismissal

• Discretionary dismissal – Title IX Coordinator MAY dismiss the Formal Complaint if at any time during the investigation or hearing:
• Complainant notifies the Title IX Coordinator in writing that he/she would like to withdraw the formal complaint or any allegations in it; or
• Respondent (accused) 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 the allegations.

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*Upon any dismissal (mandatory or discretionary), Title IX Coordinator must send written notice of the dismissal, the basis for the dismissal, and appeal procedures to both parties simultaneously.

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Additional Initial Considerations:�Title IX Emergency Removal �

District may remove a Respondent on an emergency basis pursuant to Title IX at any time following the filing of a Formal Complaint provided that the District undertakes an “individualized safety and risk analysis” and:

• Determines that “an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal” and that there is no alternative to the respondent’s emergency removal to mitigate the threat presented; and
• Provides the Respondent with notice (oral or written) and the opportunity to challenge the decision immediately following the removal.

*The District will be required to provide alternative educational services to student removed on an emergency basis. If the Respondent is student with a disability, manifestation determination requirements will be applicable to any Emergency Removal exceeding ten (10) school days.

Due to impact on Respondent and potential claims of retaliation in violation of Section 504, Emergency Removals pending completion of the Grievance Process should be implemented with caution and only in the minority of cases. �

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Title IX Emergency Removal

Districts may need to undertake an emergency removal:�

• Where a respondent poses an immediate threat to the physical health or safety of an individual before an investigation into sexual harassment allegations concludes.
• In order to fulfill the district’s Title IX duty not to be “deliberately indifferent” and protect the safety of the district’s community.

The emergency removal may be undertaken in addition to implementing supportive measures designed to restore or preserve a Complainant’s equal access to education.

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MACAVOY, JOYCE & KOWALSKI, P.C.

Emergency Removal Limitations

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Districts may not impose a Title IX emergency removal:

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• Based upon the likelihood the complainant will prevail on the allegations (i.e., the “strength” of the case).�
• Based upon a generalized, hypothetical, or speculative belief.�
• Based upon general assumptions about sex, or research that purports to profile characteristics of sex offense perpetrators, or statistical data about the frequency or infrequency of false or unfounded sexual misconduct allegations.

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MACAVOY, JOYCE & KOWALSKI, P.C.

Administrative Leave for Employees

The Title IX Emergency Removal regulations do not preclude a district from placing an employee on administrative leave for the duration of the investigation – specifically, the emergency removal standard does not need to be satisfied to implement an administrative leave.

MACAVOY, JOYCE & KOWALSKI, P.C.

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Written Notice of Formal Complaint�

Following initial assessment of the Formal Complaint, Title IX Coordinator is required to send written notice to both the Complainant and Respondent of the filing of the Formal Complaint and initiation of the Title IX Grievance Procedures. (See Title IX Manual at p.26)

• Notice letter should be same for both parties.
• Leave names but remove contact information (residential address, email) for the opposing party
• Include ALL allegations set forth in the Formal Complaint.

*Remember supportive measures are confidential, unless a party needs to know (e.g. no contact order).

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The Title IX Grievance Procedure�Informal Resolution

• Upon the filing of a Formal Complaint, The Title IX Coordinator may offer informal resolution of any Title IX complaint that does not involve an employee’s alleged sexual harassment of a Student.
• Use “Notice to Parties of Informal Resolution Letter.” (See Title IX Handbook p. 72)
• Title IX Coordinator may serve as the Informal Resolution Facilitator

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Informal Resolution Facilitator

• Facilitates the voluntary process for informal resolution only after a formal complaint has been filed. Districts do not have to offer it.
• Cannot be Investigator or Decision-Maker, could be Title IX Coordinator not also acting as the Investigator.
• Informal resolution cannot be used if Respondent is an employee of the District.
• Either party can withdraw from the informal resolution process at any time.
• Timelines for grievance procedure paused if parties agree to informal resolution process.

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The Title IX Grievance Procedure�Investigation of the Formal Complaint

Formal complaint to be investigated by a designated Investigator.

• Can be the Title IX Coordinator but in practice would most likely be an Assistant Principal.
• Any formal complaint about an employee who holds a supervisory position shall be investigated by a person who is not subject to that supervisor’s authority.

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MACAVOY, JOYCE & KOWALSKI, P.C.

Formal Complaint Investigations�Parties’ Right to Advisor

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Throughout the formal complaint investigation process:�

• Each party may have one (1) advisor of their own selection and at their own expense participate in the grievance process (districts do not need to provide). May not be a District staff member.

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• In the case of a minor child, the advisor may be in addition to the parents.

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MACAVOY, JOYCE & KOWALSKI, P.C.

Title IX Investigator �General Responsibilities

Responsible for completing an impartial investigation by seeking and gathering evidence relative to the investigation.

Responsibilities:

• Interview parties and witnesses
• Gather evidence (emails, photos, social media postings, video recordings, etc.)
• Maintain a presumption that the Respondent is not responsible
• Provide an equal opportunity for the parties to present fact and expert witnesses and other inculpatory and exculpatory evidence, and to inspect and review any evidence obtained that is directly related to the allegations
• Ensure the ability of the parties to discuss the allegations or gather and present relevant evidence (i.e., no “gag” orders)
• Identify, organize and compile relevant information.
• Maintain investigation records and notes.
• Complete Investigation and issue a final Investigative Report that fairly summarizes the relevant evidence within twenty-five (25) school days (includes mandatory 10 calendar day period for parties to respond to initial evidence package.)

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MACAVOY, JOYCE & KOWALSKI, P.C.

Investigative Considerations�Definition of Consent

Question: During the formal complaint investigation process, what constitutes consent?

• Definition of Consent to be Applied: “The Department believes the definition of what constitutes consent ... within a recipient’s education community is a matter best left to the discretion of recipients, many of whom are under State law requirements to apply particular definitions of consent.”
• Massachusetts definition of lack of consent: compelling a person to do an act by force or by threat of bodily injury and against the complainant’s will.
• Note: In Massachusetts, a child under the age of 14 is incapable of giving consent to “indecent touching” and a child under the age of 16 is incapable of giving consent to sexual intercourse. M.G.L. c. 265, §13B and §23.

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MACAVOY, JOYCE & KOWALSKI, P.C.

MACAVOY, JOYCE & KOWALSKI, P.C.

Conducting the Investigation

• Provide written notice to Complainant and Respondent of any interview to be conducted of them.
• Use “Notice to Party Whose Participation is Expected at an Investigative Interview” form in Title IX Handbook at p. 28.
• Written notice not required prior to interviews of witnesses other than Respondent or Complainant.
• Utilize “Investigator’s Checklist for Interviews of Parties and Witnesses” in Title IX Handbook (p. 29) to document every interview. Use a separate checklist for each witness, and for each interview if there are subsequent or follow-up interviews for a party or witness.
• Take notes during all interviews conducted. If possible, ask for another person (not Decision Maker, Appeals Officer, or Informal Resolution Facilitator) to be present to take notes.
• Investigator may request confidentiality, but parties can still discuss the allegations and gather and present relevant evidence. Cannot give a “gag order.”

MACAVOY, JOYCE & KOWALSKI, P.C.

Interviewing the Parties

• Prior to interviewing the Complainant and Respondent
• 1. Send written notice of the interview date, time, subject matter to be discussed and identifying who will be present.
• Both parties should be allowed to have parents/guardians and advisor (if any) present
• Parents/guardians and/or advisors may not, however, interfere in the interview process.
• 2. Carefully review the Formal Title IX Complaint prior to conducting interviews
• 3. Interview Complainant first.:
• If Complainant makes new allegations not contained within the original complaint, must investigate but must also provided written notice to both the Complainant and Respondent of the additional allegations.

4. Inform each party of right to be free from retaliation for the filing of the Formal Complaint and/or for participating in the Title IX Grievance Process.

• Begin by reviewing and confirming the allegations set forth in the Formal Complaint.
• Where did this happen?
• When?
• Where any witnesses present/
• Is there any evidence that the Complainant could provide relative to the allegations set forth in the Formal Complaint?
• At conclusion of interview, inform Complainant that you may need to conduct a follow up interview and, if so, will provide written notice of that follow up interview.

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MACAVOY, JOYCE & KOWALSKI, P.C.

Witness Interviews

• Be specific!
• The burden is on the District and Investigator to gather enough evidence for the Decision-Maker to make a determination.
• The burden of proof is not on the Complainant or Respondent.
• Look for evidence or information that tends to corroborate or dispel the allegations.
• The questions need to be exhaustive and cover all relevant questions for each allegation.
• For non-party witnesses, start with general questions.
• E.g., Can you tell me about your relationship with Complainant/
• Respondent?
• Then move on to more specific questions as the interview progresses.

MACAVOY, JOYCE & KOWALSKI, P.C.

Witness Interviews

• Remember: Who? What? When? Where? Why?
• For each and every allegation, you need to be asking:
• The date, time, and location of the incident;
• The exact phrase or words used;
• Number of times conduct occurred;
• Frequency that the incident(s) occurred (daily, weekly, etc.);
• Names of any other witnesses who may have been present;
• Names of any other witnesses who may have information regarding the allegations;
• If relevant, the exact location on the alleged victim’s person that the touching occurred, how long the physical contact lasted, and whether there were changes to the physical contact.
• Ask who else they may have talked to about the incident.
• Any other evidence (notes, emails about the incident, written statement, etc.).

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MACAVOY, JOYCE & KOWALSKI, P.C.

Gathering Evidence

• Ask for any additional evidence from each party/witness:
• Emails, text messages, social media messages, screen shots, etc.;
• Notes or statements provided by party/witness;
• Written statement not required from each party/witness, burden is on the school district.
• Gather additional relevant evidence:
• Request IT Department pull relevant emails or files on school servers
• Obtain surveillance video
• Social media posts
• Attendance records of parties
• Visit location of alleged incident if on school grounds. Document with notes and photos.
• Medical and Psychological records
• Can request them if they are relevant, but cannot obtain them or share unless written consent obtained from parent/guardian or student if 18+.

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MACAVOY, JOYCE & KOWALSKI, P.C.

Potential Investigation Pitfalls

• Failure to investigate each allegation.
• Investigating the singular allegation without inquiry as to whether other incidents occurred.
• Failure to follow up on other allegations learned during the course of the investigation.
• Failure to interview all of the witnesses.
• Failure to establish what actually occurred (e.g., what statements were made or what actions were taken).

MACAVOY, JOYCE & KOWALSKI, P.C.

Concluding the Investigation:�Sharing Evidence with Parties

• Investigator must provide all parties with the opportunity to review all evidence “directly related” to the allegation(s) and provide a written response.
• May require redaction – if part of an email/other evidence is totally unrelated to investigation, that part must be redacted.
• Use the form “Notice of Opportunity to Review Evidence and Notice of Opportunity to Submit a Written Response Within Ten (10) Days” in the Title IX Handbook (p. 34).
• Provide copies interview notes, witness/party statements, emails, text messages, photographs, screen shots, etc.
• Do not redact names of witnesses interviewed unless the witness specifically requested to remain anonymous.
• Consider having parties sign a non-disclosure agreement prior to emailing or mailing a hard copy of the evidence. May take the further precaution of not emailing or sending a copy of the evidence, or a portion of the evidence, but rather making it available at the school for the party to schedule time to review with District staff/Investigator present.

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MACAVOY, JOYCE & KOWALSKI, P.C.

This Photo by Unknown Author is licensed under CC BY-SA-NC

“Relevant Evidence”

• Evidence is relevant if. (a) it has any tendency to make a fact more or less probable than it would be without the evidence and (b) the fact is of consequence in determining the action.
• What is never “relevant”:
• Questions and evidence offered by the respondent regarding the complainant’s general sexual predisposition are not relevant and should not be considered.
• A complainant’s prior sexual behavior is also not relevant and should not be considered except for the two limited exceptions that are specific to the actual offensive conduct alleged:
• If it is offered to prove someone else committed the conduct;
• If it is offered to prove the complainant consented to the conduct under investigation.

Note: questions and evidence about a respondent’s sexual predisposition or prior sexual behavior are not subject to any special consideration but rather must be judged like any other question or evidence as relevant or irrelevant to the allegations at issue.

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MACAVOY, JOYCE & KOWALSKI, P.C.

FERPA and Title IX

A district must provide 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.�

• FERPA and its implementing regulations define the term “education records” as meaning, with certain exceptions, records that are directly related to a student and maintained by an educational agency or institution, or by a party acting for the agency or institution.

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• Parents/Student may “inspect and review” the educational records of their child.

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MACAVOY, JOYCE & KOWALSKI, P.C.

FERPA and Title IX

• If educational record contains information about other students, parents should only view the information about their child, unless the information cannot be segregated or redacted.
• District may seek consent of the parent/student to disclose the information, but it is not required.

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• Evidence obtained through the investigation that is directly related to the allegation(s) in the complaint that cannot be redacted or segregated becomes a part of the student record for both the complainant and respondent.

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FERPA cannot be construed to conflict with or prevent compliance with Title IX.

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MACAVOY, JOYCE & KOWALSKI, P.C.

Drafting the Investigation Report

• Allow 10 calendar days from sending out evidence to the parties before issuing the completed Investigation Report.
• Consider any written responses from the parties when drafting the Report.
• Include all procedural steps that were taken:
• Dates of notices sent to parties;
• Dates, times, participants in interviews;
• Date on which evidence was sent to parties to review, date they provide written response (if any).
• Include summaries of all interviews and relevant evidence.
• Include “relevant evidence” as attachments to the report.
• Avoid any determinations of credibility of parties or witnesses.

*Use Title IX Handbook forms at pp. 35-38

MACAVOY, JOYCE & KOWALSKI, P.C.

Forwarding the Final Investigation Report to the Decision Maker and Parties

• Upon completion of the Final Investigation Report, the Investigator must send a copy to the designated Decision-Maker (Principal) and to the Parties. (Use form letter at p. 38 in the Title IX Handbook.)
• The Investigator must notify the parties that they will be provided with ten (10) calendar days to submit a written response to the Investigation Report.
• Parties are not, however, required to respond.
• The Grievance Process then shifts to the designated Decision-Maker (Principal).

MACAVOY, JOYCE & KOWALSKI, P.C.

NUTTALL, MACAVOY & JOYCE, P.C.

The Title IX Grievance Procedure�The Decision-Maker

• The Decision-Maker cannot be the Investigator or the Title IX Coordinator and must not report directly to the Title IX Coordinator or Investigator.
• Usually, will be the building Principal
• Decision-Maker must be objective and unbiased.

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MACAVOY, JOYCE & KOWALSKI, P.C.

Title IX Decision-Maker�Next Steps

• Upon receipt of the final Investigation Report, the designated Decision-Maker must send written notice to the parties of the parties’ right to submit, within ten (10) calendar days, Directed Questions to the opposing party or any witnesses.
• Parties do not have right to submit written questions to Title IX Coordinator of Investigator.
• Use Title IX Handbook form at p. 38.

MACAVOY, JOYCE & KOWALSKI, P.C.

The Title IX Grievance Procedure�Directed Questions From Parties

Restrictions on Directed Questions:�

• All questions must be posed in a respectful manner.
• Only relevant questions will be permitted (Decision-Maker must provide reason(s) for excluding any questions as not relevant).
• Questions regarding the complainant’s sexual predisposition are not relevant.
• Questions about the complainant’s prior sexual behavior are also not relevant unless such questions are posed to prove someone other than the respondent committed the conduct alleged, or if the questions concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.

After receipt of answers by the parties, the Decision-Maker must allow additional, but limited, follow-up questions from each party to be answered by the opposing party or witness to whom they are directed within 5 calendar days.

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MACAVOY, JOYCE & KOWALSKI, P.C.

Directed Questions From Parties

Question: What if a party or witness does not answer directed questions from the other party?

• Regulations are silent on this possibility.
• The Department’s comments to the regulations state the grievance process should not infringe upon a party’s Fifth Amendment right to remain silent and provide that everyone has a right to participate or not participate in the grievance process, and the regulations themselves prohibit retaliation against any person exercising rights under Title IX, which includes the refusal to participate in the grievance process.
• Nonetheless, a recent Massachusetts federal court decision (Victim Rights Law Center et al. v. Cardona) determined, that schools are not prohibited from relying on statements that are not subject to cross-examination in Title IX decision-making process (emails or statements made outside of the grievance process).

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MACAVOY, JOYCE & KOWALSKI, P.C.

Determinations of Responsibility

• Upon conclusion of the Directed Questions time period, the Decision-Maker must:
• Issue a Determination of Responsibility
• Written notice of determination with very specific requirements under the regulations.
• See Title IX Handbook Forms pp. 49-59.
• Apply the standard of proof (preponderance of the evidence) to the facts to determine whether sexual harassment occurred as alleged.
• Three possible outcomes:
• Sufficient evidence to find Respondent responsible for the allegations of sexual harassment
• Insufficient evidence to find Respondent responsible for the allegations of sexual harassment
• Mixed determination of Responsibility (sufficient evidence for some but not all of the allegations)
• Use the corresponding letter templates in the Title IX Manual to customize the determination based on the situation.
• Written Determination should be sent to both parties and to the District’s designated Appeals Officer.

MACAVOY, JOYCE & KOWALSKI, P.C.

�Standard of Proof

The Standard of proof to be applied in examining and determining with Sexual Harassment occurred is the “Preponderance of Evidence” standard:

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• Preponderance of Evidence: The evidence establishes that the conduct complained of was more likely than not to have occurred.
• “50% plus a feather.”

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NUTTALL, MACAVOY & JOYCE, P.C.

Determination of Responsibility

For each allegation, describe the facts that the Decision-Maker has determined, by a preponderance of the evidence, actually occurred.

• Preponderance of the evidence = more probable than not.
• Address the circumstances in which the facts were established.
• How many witnesses were there?
• Did the witness’s statements support the complainant’s allegations? Were the accounts consistent?
• Was there any other physical evidence that supported the allegations?
• Address circumstances in which the facts were not able to be established.
• After interviews of all identified witnesses, were the allegations corroborated? Did any other evidence corroborate the allegations?
• Were there conflicting accounts of what happened that can’t be reconciled?

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MACAVOY, JOYCE & KOWALSKI, P.C.

Determination of Responsibility

After establishing what occurred based on preponderance of the evidence, apply the facts to the Title IX legal standards (definitions of sexual harassment).

1. Quid Pro Quo
2. Sexual Assault as defined by the Clery Act or the Violence Against Women Act
• Rape, fondling, incest, statutory rape, dating violence, domestic violence, stalking
• 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 incapacity. In Massachusetts, pursuant to M.G.L. c. 265, § 13B, a child under the age of 14 is incapable of giving consent to indecent touching.
3. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denied the complainant equal access to the School’s education program or activity.

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MACAVOY, JOYCE & KOWALSKI, P.C.

Determining Responsibility

Unwelcome conduct determined by a reasonable person to be so severe, and pervasive, and objectively offensive that it effectively denied the complainant equal access to the School’s education program or activity.

• Fact-specific determination
• Cite to severity of the conduct, frequency of the conduct, duration of the conduct, and offensiveness to a reasonable person of the same age, grade, and gender.
• Include how the conduct would effectively deny a reasonable person of the same age, grade, and gender equal access to the School’s education program or activity.

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MACAVOY, JOYCE & KOWALSKI, P.C.

Notice of Responsibility

• Provide notice of any remedies to be implemented based upon the finding of Sexual Harassment.
• Provide notification of possible disciplinary sanctions in line with the District’s Code of Conduct or Employee Handbook.
• Note that any remedies provided to the complainant designed to restore or preserve equal access to the recipient’s education program or activity are confidential. Just state whether or not they will be provided.
• Provide notice of right to appeal and contact information for the Appeals Officer.

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MACAVOY, JOYCE & KOWALSKI, P.C.

Discipline Following a �Determination of Responsibility

• Title IX regulations take precedence; complete the Title IX procedures before imposing discipline as you usually would, with all state law due process measures in place.
• If the Respondent is subject to potential suspension or expulsion, that cannot be imposed prior to the determination of responsibility.
• Once the determination of responsibility has been made, the Respondent would receive notice of his/her rights based on the potential discipline under separate cover.

MACAVOY, JOYCE & KOWALSKI, P.C.

Discipline Following a Determination of Responsibility

Title IX Determination:

• The respondent will be referred for consideration of a short term/long term suspension in accordance with M.G.L. c. 71, § 37H3/4. The respondent will be notified under separate cover of the date and time of a hearing to consider the respondent’s long-term suspension (longer than ten (10) school days).

M.G.L. c. 71, § 37H3/4:

• Separate letter sent out providing notice of rights in the suspension process (short term or long-term suspension).
• Remember to hold Manifestation Determination if student is subject to removal longer than 10 days and school knows or has reason to know the Student has a disability.

MACAVOY, JOYCE & KOWALSKI, P.C.

Discipline

Persons who engage in sexual harassment or retaliation may be subject to disciplinary action including:�

• Reprimand
• Termination
• Suspension
• Expulsion
• Other sanctions as determined by the district administration

MACAVOY, JOYCE & KOWALSKI, P.C.

The Title IX Grievance Procedure�Appeals

MACAVOY, JOYCE & KOWALSKI, P.C.

Within 5 calendar days of receipt of the Decision-Maker’s determination, either the Complainant or Respondent may appeal from a determination regarding responsibility only on the following bases:

1. Procedural irregularity that affected the outcome of the matter;
2. Newly discovered evidence that could affect the outcome of the matter; and/or
3. Title IX personnel had a conflict of interest or bias that affected the outcome of the matter.

Discipline

Persons who engage in sexual harassment or retaliation may be subject to disciplinary action including:�

• Reprimand
• Termination
• Suspension
• Expulsion
• Other sanctions as determined by the district administration

MACAVOY, JOYCE & KOWALSKI, P.C.

Discipline

Students may be subject to discipline for sexual harassment or retaliation under Massachusetts student discipline laws, M.G.L. c. 71, §§ 37H, 37H ½, and 37H ¾.

�To be clear, however: under the new Title IX regulations a respondent may not be subject to disciplinary sanctions for the misconduct being investigated under the Title IX grievance procedure until after the process has been completed.

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Options for Districts to Consider:

• Use of Supportive Measures upon a report of sexual harassment.
• Emergency Removal under the Title IX regulations.

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MACAVOY, JOYCE & KOWALSKI, P.C.

Appeals Officer

• Appeals Officer cannot be the Title IX Coordinator, the Decision-Maker or Investigator.
• Appeals Officer must be an individual not previously involved (someone other than the Title IX Coordinator, Investigator, and Decision-Maker).
• Should be the Superintendent
• Must determine if the appeal can move forward based on specific criteria.
• Reviews investigation report and other evidence that was gathered, along with statements by all parties.
• Within 30 calendar days of receipt of the appeal, the Appeals Officer issues a written determination describing the outcome of the appeal and the rationale. (use Title IX Handbook forms at pp. 65-69.)

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MACAVOY, JOYCE & KOWALSKI, P.C.

OCR Complaints

• In addition to internal appeal rights, either party may file a complaint with OCR alleging a violation of Title IX.
• OCR’s oversight includes identifying and correcting any violations the district may have committed during the Title IX grievance process, but:
• The Department will not overturn the outcome of a Title IX grievance process solely based on whether the Department might have weighed the evidence in the case differently from how the recipient’s decision-maker weighed the evidence.

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MACAVOY, JOYCE & KOWALSKI, P.C.

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Training

To ensure a consistent, transparent and fair grievance process for both parties all Title IX Personnel must receive training on the following topics:

• How to conduct the Grievance Process
• Relevance as it pertains to evidence and questions
• Impartiality
• Technology to be used in cases of live hearings (K-12 not required)

Training materials must be publicly posted on the District’s website. Must maintain for 7 years.

MACAVOY, JOYCE & KOWALSKI, P.C.

The Grievance Process:�General Standards

Burden of Proof

• The burden of proof is on the District, not the complainant or respondent.

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• District has the burden to gather sufficient evidence to reach a determination regarding responsibility.

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• District must provide both parties equal opportunity to gather and present witnesses or other evidence but cannot place the burden or obligation on the parties to do so.

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MACAVOY, JOYCE & KOWALSKI, P.C.

Report of Conduct:�Methods of Reporting

• Can be written or verbal, formal or informal. No specific forms are required for a District to be on notice of an allegation of sexual harassment.

(Written formal complaint triggers mandatory grievance process)

• Can be made at any time, including non-business hours, to the contact information for the Title IX Coordinator posted on the District’s website.
• Does not have to be from the alleged victim. Parents/guardians of elementary and secondary school students can file a complaint on their child’s behalf. A friend/peer of the complainant could file a report.

MACAVOY, JOYCE & KOWALSKI, P.C.

Report of Conduct:�Methods of Reporting

Any district employee who observes sexual harassment of a student or receives notice of an allegation of sexual harassment must report the incident to the Principal or Title IX Coordinator.

Includes: teachers, support staff, administrators, cafeteria workers, bus drivers, custodial staff, etc.

That employee should intervene to stop the conduct and report it to the Principal and Title IX Coordinator.

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MACAVOY, JOYCE & KOWALSKI, P.C.

Report of Conduct:�Actual Knowledge/Notice

A district with actual knowledge of sexual harassment in an education program or activity of the district in the United States must respond promptly in a manner that is not deliberately indifferent.

• District is deemed to have actual knowledge of sexual harassment when ANY district employee:
• witnesses sexual harassment; OR
• hears about sexual harassment from a complainant or third party; OR
• receives a written or verbal complaint about sexual harassment allegations by any means (email, mail, phone call, etc.).
• Deliberate indifference: If a district’s response to a report of sexual harassment is clearly unreasonable in light of the known circumstances.

MACAVOY, JOYCE & KOWALSKI, P.C.

Anonymous Reports

• An anonymous report can suffice to put the district on notice of an allegation of sexual harassment.
• The district’s obligation is to respond to an anonymous report in a manner that is not clearly unreasonable in light of the known circumstances.
• A Formal Complaint may not be filed anonymously.

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MACAVOY, JOYCE & KOWALSKI, P.C.

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Questions?

MACAVOY, JOYCE & KOWALSKI, P.C.

MACAVOY, JOYCE & KOWALSKI, P.C.�55 Providence Highway�Norwood, MA 02062�Telephone: (781) 837-7428�Facsimile: (781) 837-7498� www.nmjedlaw.com �

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MACAVOY, JOYCE & KOWALSKI, P.C.