TITLE IX

Dustin Zeschke

Swisher & Cohrt

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TITLE IX

• Prohibits discrimination on the basis of sex
• Protects all individuals (students, employees, applicants, etc.)
• Employee v. Employee
• Student v. Student
• Student v. Employee
• Regulations
• New regulations came out in 2020.
• New updated regulations (currently effective August 1)

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IMPLEMENTATION

• Incorporate new language and definitions into policy and procedures
• Incorporate investigation and hearing requirements
• Determine who is the Title IX Coordinator, Investigators, Decision-Makers and Appeal Decision Makers
• Designed to be coordinated through a Title IX Coordinator
• Required to distribute notice of Title IX, notifying individuals of their rights and our obligations under Title IX, and contact information for our Title IX coordinator
• Title IX policies, anti-bullying and harassment policies, grievance procedures
• Title IX Coordinator and their contact information must be prominently displayed on our website, employee and student handbooks, and any handbook or catalog made available to applicants, unions, or other professional organizations.
• Create a one-stop place for all Title IX policies and procedures

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TITLE IX PROCESS

• When there is a complaint that involves sex (we’ll go through definitions), notify the Title IX Coordinator.
• Title IX Coordinator then coordinates the process which includes offering supportive measures pending investigation, formal investigation or informal resolution, and then coordinating remedies.
• The process involves designated investigators, decision makers, and appeal decision makers.
• So why train everyone?
• Obligated to
• Obligation on employees to report when they learn of concerning conduct

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ENFORCEMENT

• OCR
• Voluntary resolution
• Equitable relief
• Private litigation
• Money damages

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ENFORCEMENT STANDARD

• Deliberate indifference – liability standard
• Obligation is simply for the District to respond to harassment in a manner that is not unreasonable
• Plaintiff must establish District had “actual knowledge” and that the harassment was so severe, pervasive and objectively offensive that the student was denied access to their education
• 2024 Amendment – knowledge of conduct that reasonably may constitute sex discrimination
• Districts must provide training for any Title IX Coordinator, Investigator, Decision-Maker, or any other person designated to facilitate an informal resolution
• Training materials must not rely on sex stereotypes and must promote impartial investigations and resolutions
• 2024 Amendments – ALL employees must be trained on the District’s obligation to address sex discrimination, scope of conduct that constitutes sex discrimination and notification and information requirements.
• 2024 Amendment – District must require all employees who are not confidential employees to notify the Title IX Coordinator any conduct that reasonably may constitute sex discrimination.
• Confidential employees (mental health counselors, etc.) must explain to any person providing them information of their confidential status and when they are not required to notify the Title IX Coordinator, how to contact the Title IX Coordinator and make a complaint, and that the Title IX Coordinator can offer supportive measures and initiate informal resolution or a formal complaint.

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SEXUAL HARASSMENT DEFINITIONS

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

(1) An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual's participation in unwelcome sexual conduct;

(2) Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity; or

(3) “Sexual assault”, “dating violence”, “domestic violence”, or “stalking”.

�Sexual assault “means an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system” (Rape, fondling, incest)

Dating violence means violence committed by a person--

(A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and

(B) where the existence of such a relationship shall be determined based on a consideration of the following factors:

(i) The length of the relationship.

(ii) The type of relationship.

(iii) The frequency of interaction between the persons involved in the relationship.

�

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SEXUAL HARASSMENT DEFINITIONS

Domestic violence is defined as a felony or misdemeanor crimes committed by a current or former spouse or intimate partner of the victim under the family or domestic violence laws of the jurisdiction receiving grant funding and, in the case of victim services, includes the use or attempted use of physical abuse or sexual abuse, or a pattern of any other coercive behavior committed, enabled, or solicited to gain or maintain power and control over a victim, including verbal, psychological, economic, or technological abuse that may or may not constitute criminal behavior, by a person who--

(A) is a current or former spouse or intimate partner of the victim, or person similarly situated to a spouse of the victim;

(B) is cohabitating, or has cohabitated, with the victim as a spouse or intimate partner;

(C) shares a child in common with the victim; or

(D) commits acts against a youth or adult victim who is protected from those acts under the family or domestic violence laws of the jurisdiction.

�Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to--

(A) fear for his or her safety or the safety of others; or

(B) suffer substantial emotional distress.�

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SEXUAL HARASSMENT DEFINITIONS

2024 Amendments – expands definition of sexual harassment/sex discrimination to includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, gender identity and sexual orientation.

Hostile environment – if subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from education program or activity.

Pregnancy – if reported to an employee, employee must report to Title IX Coordinator who can coordinate specific actions to prevent discrimination and ensure access. District must provide student with information about obligation to provide reasonable modifications, access to separate comparable program/activity, voluntary leaves of absence, and lactation space (other than a bathroom) and include reasonable break time for employee.

Cannot require supporting documentation for modifications unless necessary and reasonable to determine reasonable modifications. Generally, may not require certification to participate unless required for the activity.

Must treat pregnancy as a temporary medical condition.

New standard for separate toilet, locker room, and shower – must be comparable (now) but adds cannot separate if causes the person more than de minimis harm. (separate rule forthcoming for athletics)

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EDUCATIONAL PROGRAM OR ACTIVITY

• Conduct must occur in an “educational program or activity”
• This extends beyond “on-campus”
• “locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs”
• Must be against a person “in the United States”
• Includes any building owned or controlled by a student organization that is recognized by the institution
• 2024 Amendment – District has a responsibility to address sex based hostile environment even when some conduct alleged to be contributing to the hostile environment occurred outside the education program/activity or outside the U.S.

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SUPPORTIVE MEASURES

• When a complaint is first reported, the Title IX Coordinator can offer supportive measures, which would then be implemented. Title IX is designed to keep information confidential to the extent possible.
• Offered as appropriate and reasonably available (no charge)
• Non-disciplinary
• Can be offered before, during, and after a formal complaint
• Designed to restore or preserve students access to the educational program or activity
• Without unreasonably burdening the other party
• Protects all parties, the educational environment, and to deter sexual harassment
• Reasonably timely manner
• Not unreasonably burdensome – no specific definition

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SUPPORTIVE MEASURES

• Counseling
• Extension of deadlines or course related adjustments
• Modifications to schedules
• Alternative passing or escorts
• Restricting contact
• Leaves of absences
• Increased security or safety precautions
• Assigned seating
• Confidentiality of measures to the extent possible to not impair the ability to provide them
• Title IX coordinator’s responsibility to implement
• 2024 Amendments – if student with a disability, Title IX Coordinator should consult with one or more IEP or 504 team members on supportive measures and the grievance process.

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EMERGENCY REMOVAL

• Employees (non-student) may be placed on administrative leave during grievance process
• May remove a respondent from an education program or activity
• District must undertake “individualized safety and risk analysis, 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 provides the respondent with notice and an opportunity to challenge the decision immediately following the removal.” 34 C.F.R. § 106.44
• However, District must still comply with IDEA, 504, and ADA (manifestation determinations; interim supporting measures)
• Reminder – can only suspend for 10 days. Expulsions go before the school board.

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RECORD KEEPING AND RETENTION

• Maintain:
• Each sexual harassment investigation, including determinations, audio or visual recordings, disciplinary sanctions, and any remedies provided to the complainant;
• Any actions taken, support provided, basis for conclusions, measures that enables student to continue to access the educational program or activity
• If none, document why.
• Any appeal and the result;
• Informal resolution; and
• All materials used to train coordinators, investigators, those who facilitate informal resolution, and decision-makers regarding sexual harassment
• Records must be maintained for seven years

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QUESTIONS?

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• When in doubt, contact your Title IX Coordinator

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TITLE IX INVESTIGATORS

• How do we get to the investigation?
• Title IX Coordinator receives a complaint – meets with complainant
• Determines that it falls under Title IX
• Determines not subject to dismissal
• Offers supportive measures as appropriate
• Parties do not voluntarily select informal resolution

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TITLE IX INVESTIGATORS

• Investigator – initial fact finder
• Investigator cannot be the individual who makes a determination regarding responsibility, including sanctions
• In general, investigations must be:
• Adequate
• Reliable
• Prompt
• Unbiased - prejudice in favor of or against one person or group
• Conflict of interest – personal or professional interest in the case that prevents them from being fair, neutral or impartial
• Impartial - avoid predetermination, fair to both sides
• Provide an equal opportunity for both parties to present witnesses and other evidence
• Avoid becoming emotionally involved or an advocate. Examples: more likely to believe students or staff (in general or due to past history), judging because of protective characteristic or the way they dress, etc.

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TITLE IX INVESTIGATORS

• Cannot be the decision maker or appeal decision maker
• 2024 Amendments – can use a single-investigator model, in which the decisionmaker may be the same person as the Title IX Coordinator or investigator.
• Can be internal or external

TITLE IX INVESTIGATORS

• Investigation may vary depending on
• Nature of the allegation
• Age of the students involved
• Size and structure of the school
• Applicable state or local requirements
• What the school has learned from past experience

TITLE IX INVESTIGATORS

• Written notice of investigation sent to the parties:
• Notice of the grievance process, including any informal resolution process
• Identifies of the parties involved in the incident;
• The conduct alleged;
• The date and location of the incident;
• Respondent’s entitlement to a presumption of innocence;
• The parties’ right to an advisor of their choice, at the party’s expense, who may be an attorney;
• Parties right to review and comment on the evidence;
• Inform the parties of any provision in the code of conduct that prohibits knowingly making false statements or submitting false information during the grievance process;
• That a determination of responsibility is made at the conclusion of the grievance process.
• 2024 Amendments – Statement that retaliation is prohibited.
• If new allegation added, must issue written notice

TITLE IX INVESTIGATORS

• Interviews – develop a general plan (both parties have an equal opportunity to present witnesses)
• Gather and review relevant documents, policies, evidence
• Determine where interviews will take place (neutral, private, convenient)
• Outline interview questions – to help you determine founded or not

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TITLE IX INVESTIGATORS

• Prior written notice of interviews to parties
• Date, time, location, participants, purpose
• Sufficient notice to prepare
• No gag orders – restricting parties from discussing/gathering evidence
• Can require confidentiality/non-disclosure agreement to ensure evidence not used for any purpose other than participation in Title IX proceedings

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TITLE IX INVESTIGATORS

• For each witness:
• Explain the process and why you’re there
• Expectation of honesty
• Discuss limits of confidentiality (below)
• Explain policy on non-retaliation and how to report

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TITLE IX INVESTIGATORS

• Basic questions – who, what, when, why, where, how
• Who did what
• Other witnesses
• What all individuals said and did
• When and where did it occur
• Who they reported it to
• Ask for collaborating evidence – texts, phone calls, social media, etc.
• Ask about relationship with parties/witnesses (understanding relationships and hidden agendas)
• Open ended questions

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TITLE IX INVESTIGATORS

• Start investigations with an open mind, no pre-determination
• Consider demeanor of witnesses (relevant for judging credibility)
• Be an active listener
• Take notes
• You are there to gather the facts, not to be an advocate for one side or the other
• Can also obtain written statements
• If you write for the witness, provide time to review, ask for any changes or additions, confirm accuracy

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TITLE IX INVESTIGATORS

• Relevant evidence
• Evidence that is of consequence to the outcome of the litigation
• Makes facts more or less probable
• Irrelevant evidence – don’t consider
• Relevant evidence – consider, but then determine the weight

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• Credibility determinations
• Should not be based on gender, sexual orientation, gender identity, or other protected characteristic
• Or their status as a party or witness

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TITLE IX INVESTIGATORS

• Written report
• Investigator sorts through the evidence to produce a summary of the relevant evidence
• After receiving all the evidence, but prior to completion of the report, each party must be provided with copies of any evidence directly related to the allegations
• Each party shall have at least 10 days to submit a written response to the investigator
• Investigator must consider the written responses prior to completing the report
• Report must “fairly summarize relevant evidence”
• Final investigative report must be provided to each party and the party’s advisor at least 10 days prior to the decision-maker making a decision on responsibility.
• Parties must have an opportunity to provide written response to the investigative report

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TITLE IX INVESTIGATORS

• Standard of proof
• Clear and convincing – highly likely
• Preponderance of the evidence – more likely than not
• Not based on quantity of evidence, but the weight
• Can use either standard, but have to be consistent for students and staff complaints
• 2024 Amendments – Must use preponderance of the evidence to determine whether sex discrimination occurred unless the District uses “clear and convincing” in other comparable proceedings.
• Burden of proof is on the school

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TITLE IX INVESTIGATORS

• Maintain
• Notes – notes should be a running record of the investigation (what you did, what you reviewed, who you talked to, etc.)
• Statements
• Documentation
• Investigation must be kept for seven years

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TITLE IX INVESTIGATORS

• Confidentiality
• Must keep confidential the identity of any individual who has made a report or complaint, or has been identified as the perpetrator or respondent to any such report, or is a witness to any complaint or investigation
• Except as required to carry out the purposes of Title IX (must disclose to parties, maybe other witnesses, and individuals who need to know)
• 2024 Amendment – consult with family members, confidential resources, or advisors.
• Information maintained in a secure manner
• Do not over-promise confidentiality – due process or other considerations may require disclosure

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QUESTIONS?

K-12 DECISION MAKERS

• Cannot be Title IX Coordinator or investigator for that case
• Cannot be the Appeal Decision Maker for that case
• May be one person or a panel
• Responsibilities:
• Neutral
• Determine what is relevant to the case
• Objectively evaluate the evidence, both inculpatory and exculpatory
• Reach a decision regarding responsibility (no deference to the investigative report
• Decision making process
• Written or live hearing
• Cross examination
• Right to do so whether written or live hearing

K-12 DECISION MAKERS

• Live hearing
• Each party may have an advisor (could be an attorney)
• Advisor allowed to ask the other party and any witnesses all relevant questions, challenge credibility, and conduct cross-examination
• If complainant does not have an advisor, District must provide one free of charge to conduct cross
• District must provide technology enabling the hearing to be conducted live with parties in separate rooms if requested (training required for the decision maker)
• District must create an audio or video recording or written transcript and make it available to the parties
• Written option
• Allow each party to submit written questions to any party or witness
• Decision maker provides each party with the answers, and allows for additional, limited follow-up questions for each party
• Cross-examination – each party’s advisor will submit questions for cross
• You decide if the questions are relevant. If irrelevant, explain why to the party
• Relevance is any question having the tendency to make the existence of any fact more or less probable
• This is different than weight

K-12 DECISION MAKERS

• Privileged information
• Medical records are not relevant unless voluntarily provided
• Any other privileged information (such as attorney client privilege)
• Complainants' sexual predisposition or prior sexual behavior is not relevant unless offered to provide that someone other than the respondent committed the alleged conduct or prior sexual behavior with the respondent is offered to prove consent
• Credibility – do not rely on demeanor alone (for example: trauma)
• Look for consistency of the evidence, reliability, plausibility
• 2024 Amendment – decision-maker must be allowed to adequately assess credibility of parties and witnesses if credibility is in dispute and relevant to evaluating the allegation.
• Determining responsibility
• after live hearing or written exchange, must determine responsibility
• This is independent, with no deference to the investigative report

K-12 DECISION MAKERS

• Written decision
• State the allegations
• Procedural steps taken (notices given to the parties, interviews, site visits, methods used to gather other evidence, hearings held)
• Finding of fact
• Application of the facts to the code of conduct
• Statement of results and rationale for each
• Sanctions and remedies
• Appeal procedures
• Copy to Title IX Coordinator
• Decision to parties simultaneously
• Decision is final either when the appeal deadline expires, or the date of written determination on appeal

K-12 DECISION MAKERS

• Sanctions
• Range of sanctions must be described in policy
• Consider discipline but also remedies to prevent recurrence
• Examples: written warning, suspension, expulsion, demotion, termination
• Student conduct policies
• Suspension/expulsion beyond 10 days – need board action
• IDEA/504
• Employee due process
• Other legal obligations

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K-12 DECISION MAKERS

• Remedies
• Implementing are the responsibility of Title IX Coordinator
• May be the same or different than interim supportive measures
• Restore or preserve equal access to education program and activities
• Must be in policy
• Examples: counseling, modifications, accommodations, restrictions on contact, monitoring

K-12 DECISION MAKERS

• Appeal
• Must provide notice to the other party when an appeal is filed
• Give both parties a reasonable, equal opportunity to submit a written statement in support of the decision or challenging it
• Issues a written decision describing result of the appeal and rationale
• Provide written decision simultaneously to both parties
• Appeal decision maker
• Must not be Title IX Coordinator, investigator, or initial decision maker
• Can be individual or panel
• Not the full school board
• Avoid conflict and bias

K-12 DECISION MAKERS

• Mandatory appeals
• procedural irregularity that affected the outcome
• New evidence not reasonably available at the time that could affect the outcome
• Conflict of interest
• Permissive appeals
• May offer on any other basis – so long as available to both sides
• Ex: appropriate discipline, whether met burden of proof
• 2024 Amendment – can appeal mandatory or permissive dismissal
• Confidentiality
• Keep complainant, respondent, witnesses confidential except as required by law or to carry out the investigation. Even school staff are only told if they need to know.

TITLE IX COORDINATOR

• District must have a Title IX Coordinator
• Must notify applicants, employees, students, parents/guardians, professional organizations of your name, address, email, and phone number
• Must be prominently displayed on website, in handbook available to (same as above)
• Must not have conflict of interest, bias, etc.
• Must receive training: definitions of harassment, scope of District’s education program and activities, how to conduct a grievance process, how to serve impartially (avoiding prejudgment, bias, conflicts)

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TITLE IX COORDINATOR

• Any person may report sex discrimination or sexual harassment to Coordinator, regardless if they are the target of the conduct
• Third party reports
• Unwilling complainants
• Anonymous reporting
• Initial reports do not need to be in writing
• Formal complaints are “any document filed by a complainant” (2024 Amendment – Complaint can be oral if objectively can be understood as a request to investigate).
• Not required to use designated form or submission, but can encourage
• Must be signed by complainant (not under the 2024 Amendment)
• Title IX Coordinator may sign a complaint, but the Title IX Coordinator does not become the complainant or a party to the complaint by doing so

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TITLE IX COORDINATOR

• Supportive Measures
• Non-disciplinary
• Individualized
• Before, during and/or after filing a complaint
• Without charge
• Designed to restore or preserve access to educational program or activity
• Title IX Coordinator must promptly contact the complainant to discuss supportive measures, their availability even without filing a formal complaint, consider input from Complainant, and explain the process for filing a formal complaint
• Title IX Coordinator is responsible for overseeing supporting measures
• Other District employees – only are informed of supportive measures on a need to know basis
• Follow-up

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TITLE IX COORDINATOR

• Formal Grievance
• Title IX Coordinator oversees and serves and informal resource during the process
• Once a formal complaint is filed, can pursue either formal grievance process or informal resolution (cannot pursue informal unless a formal complaint has been filed)
• Formal grievance – investigation and determination of responsibility
• Informal resolution – Notice of the allegations must be provided to the parties, the parties must provide written consent, the circumstances in which it precludes the parties from resuming a formal complaint arising from the same facts, that prior to agreement either party may withdraw from the informal resolution process and resume the grievance process, that records will be maintained as part of the informal process
• District has broad discretion on the process (could be mediation, arbitration, other resolution option)
• Not available for sexual harassment of an employee against a student
• 2024 Amendment – District may decline to allow informal resolution when it determines alleged conduct would present future risk of harm to others.

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TITLE IX COORDINATOR

• Dismissal
• Title IX Coordinator must determine whether there is jurisdiction under Title IX
• Mandatory dismissal if the alleged conduct, taken as true, does not constitute sexual harassment, if it did not occur in the District’s program or activity, or it did not occur in the US
• Does not preclude action under another policy.
• 2024 Amendment – dismissal if the allegation does not constitute sexual harassment after reasonable efforts to clarify.
• Dismissal is also permissive where complainant notifies the Coordinator in writing that they wish to withdraw the complaint (or any portion); where respondent is no longer enrolled or employed by the District; or where circumstances prevent the District from gathering evidence to make a determination.
• 2024 Amendment – may dismiss if unable to identify respondent after reasonable steps
• If dismissed, District must promptly send written notice of the dismissal and the reasons to all parties.

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TITLE IX COORDINATOR

• Title IX Coordinator must ensure that investigators and decision makers
• Receive the necessary training
• Are unbiased and impartial
• Do not have a conflict of interest
• Comply with investigative process
• Assign an alternate where necessary
• Implementation of remedies
• 2024 Amendments – Coordinator coordinates disciplinary sanctions on respondent including notification to complainant, and take other appropriate steps to ensure sex discrimination does not continue or recur.

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TITLE IX COORDINATOR

• Title IX Coordinator ensures the process
• Review policies and practices to make sure consistency between Title IX policies and other District policies
• Ensure training of staff – District must make training materials publicly available on its website, or if not website, upon request
• 2024 Amendments – ALL employees must be trained on the District’s obligation to address sex discrimination, scope of conduct that constitutes sex discrimination and notification and information requirements.
• 2024 Amendments – website requirement removed. Just have to be produced upon request.
• Training must include the definition of sexual harassment, scope of the recipients program and activity, how to conduct an investigation and the grievance process, how to serve impartially
• Additionally, training on technology for live hearings if utilized, relevance, and questions of evidence.
• Must not rely on sex stereotypes
• Publish materials on websites and handbooks
• Record keeping – 7 years: any actions taken, supportive measures, investigation, conclusion, any appeal, remedies, and all training.
• 2024 Amendments – monitor the education program/activity for barriers to reporting information about sex discrimination/harassment.

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