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Title IX Final Regulations:�Administrator Training

Region One School District�January 12, 2022

www.ctschoollaw.com

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Title IX of the �Education Amendments of 1972

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.”

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Title IX: The Basics

Connecticut law also protects individuals from discrimination on the basis of sexual orientation and gender identity/expression

Applies to programs or activities operated by schools that receive federal financial assistance, including elementary and secondary schools, colleges, universities, whether public or private.
Prohibits schools receiving federal funds from discriminating on the basis of sex.

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Denial of Equal Opportunity

There are three main areas where a school may face a Title IX student issue:

Equal opportunities in sports

Access to facilities based on gender identity

Denial of access to education due to sex discrimination, the definition of which includes sexual harassment and sexual assault

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New Final Regulations

On May 6, 2020 the United States Department of Education issued the 2,033 page document that amended the regulations implementing Title IX of the Education Amendments of 1972 and which contained the new Final Regulations.
Final Regulations became effective August 14, 2020.
New Title IX regulation holds schools accountable for failure to respond equitably and promptly to sexual misconduct incidents.
These Final Regulations, unlike past guidance issued from the Office of Civil Rights (OCR), have the full effect of law and override any past guidance.
Final Regulations are a significant change to how Title IX is managed and include extensive procedural requirements.

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New Final Regulations – What’s New?

A definition of sexual harassment

A duty for schools to only investigate complaints of conduct that occurred within their program or activity

Adoption of an “actual knowledge” and “deliberate indifference” standard

A detailed grievance process for formal complaints of sexual harassment – specific roles for administrators in grievance process

Under the Final Regulations, if a school district has actual knowledge of sexual harassment in a district education program or activity, the district must respond promptly in a manner that is not deliberately indifferent.

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Key Personnel

Title IX Coordinators

Investigators

Decision-makers

Advisors

Informal Resolution Facilitators

Appeal Decision-Makers

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Grievance Process v. Procedure

Complaints of sex discrimination involving allegations of sexual harassment

Complaints of sex discrimination that DO NOT involve sexual harassment

Grievance Procedure

Grievance Process

This process is outlined in �great detail in �the Final Regulations

Districts have more flexibility �in the details of the �grievance procedure, so long as it is prompt and equitable

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“Sex Discrimination”

Increased

Flexibility

“

occurs when a person, because of the person’s sex, is denied participation in or the benefits of any education program or activity receiving federal financial assistance.

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“Sexual Harassment”

Increased

Flexibility

“

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

An employee of the District conditioning the provision of an aid, benefit, or service of the District on an individual’s participation in unwelcome sexual conduct (i.e., quid pro quo);
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 District’s education programs or activities; or
“Sexual assault”* (20 U.S.C. 1092(f)(6)(A)(v)), “dating violence”* (34 U.S.C. 12291(a)(10)), “domestic violence”*� (34 U.S.C. 12291(a)(8)) or “stalking”* (34 U.S.C. 12291(a)(30)).

*These definitions can be found in Appendix A of the Shipman & Goodwin model Administrative Regulations.

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“Actual Knowledge”

If any employee is on notice of sexual harassment, the employee must alert the administration as promptly as possible.

Increased

Flexibility

“

In elementary and secondary schools, the District is deemed to have actual knowledge when notice of sexual harassment or allegations of sexual harassment:

is given to the Title IX Coordinator
is given to any official of the District
is given to any employee of an elementary or secondary school.

The District must respond to “actual knowledge” of sexual harassment.

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Types of Sexual Harassment

Sexual assault, dating violence, domestic violence, stalking

Unwelcome conduct so severe, pervasive and offensive that �it effectively denies a person equal access to the District’s education programs or activities

Quid Pro Quo

“This for That”

Important Note: Definition of sexual harassment under Title VII (employees) and Connecticut law is broader (more protective) than this new Title IX definition.

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Quid Pro Quo

“This for That”

When a teacher or other school employee conditions an educational decision or benefit on the student’s submission to unwelcome sexual conduct.

Submission to such conduct may either be made �explicitly or implicitly.
If this occurs, it does not matter whether the student �resists and suffers the threatened harm or submits to �and avoids the threatened harm.

Quid pro quo harassment can also occur when a District employee conditions a benefit or service on another employee’s submission to unwelcome conduct.

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Severe, Pervasive, Offensive Unwelcome Conduct

When a teacher, school employee, other student, or third party engages in unwelcome conduct that is determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the District’s education program or activity.

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Sex-Based Offenses

Increased

Flexibility

“

“Sexual assault” (20 U.S.C. 1092(f)(6)(A)(v)), “dating violence” (34 U.S.C. 12291(a)(10)), “domestic violence” (34 U.S.C. 12291(a)(8)) or “stalking” (34 U.S.C. 12291(a)(30)).

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Examples of Sexual Harassment

Unwanted sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature including:

Statements or other conduct indicating that a student’s submission to, or rejection of, sexual overtures or advances will affect the student’s grades and/or other academic progress.
Unwelcome attention and/or advances of a sexual nature, including verbal comments, sexual invitations, leering and physical touching.
Display of sexually suggestive objects, or use of sexually suggestive or obscene remarks, invitations, letters, emails, text messages, notes, slurs, jokes, pictures, cartoons, epithets or gestures.
Touching of a sexual nature or telling sexual or dirty jokes.
Making sexual comments, jokes or gestures (written or verbal).
Distributing sexually explicit images such as drawings or pictures, or written materials (including cyber-distribution).
Transmitting or displaying emails or websites of a sexual nature.
Calling students sexually charged names.
Spreading sexual rumors.

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Reporting

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

All employees of the District have an obligation to report instances of sexual harassment.

Only conduct that is alleged to have occurred against a current student or employee, or an applicant, and in the United States, falls under Title IX.

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General Response to Sexual Harassment

If the District has actual knowledge of sexual harassment in a District education program

or activity…

The District is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of known circumstances.

The District must respond promptly and in a manner that is not deliberately indifferent.

The District’s response must treat complainants and respondents equitably by offering supportive measures to the complainant and by following the grievance process outlined here before the imposition of any disciplinary sanctions or other actions that are not supportive measures.

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Grievance Process for Allegations of Sexual Harassment

District receives notice or actual knowledge of sexual harassment

District offers supportive measures

Formal complaint is filed by the complainant or signed by the Title IX Coordinator

Investigation

Decision Regarding Responsibility

Appeal

Informal Resolution Process

If no agreement is reached

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Title IX Coordinator: �Responsibilities within the Grievance Process

Contact each complainant (defined as a person who is alleged to be the victim of sexual harassment) to discuss supportive measures and inform the complainant of the availability of these measures with or without filing a formal complaint

Consider the complainant’s wishes regarding supportive measures

Explain to the complainant the process for filing a formal complaint

Follow grievance process before imposing disciplinary sanctions if respondent is found responsible

If respondent is found responsible, then effectively implement remedies for the complainant, designed to restore or preserve the complainant’s equal educational access

Must be impartial, unbiased, and free from conflicts

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Supportive Measures

The Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures, consider the complainants wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without filing a formal complaint, and explain to the complainant the process for filing a formal complaint.

Non-disciplinary

Non-Punitive

Individualized �(as appropriate and reasonably available)

Without fee �(to complainant or respondent)

Before or after filing of formal complaint or where no formal complaint is filed

Supportive Measures

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Supportive Measures

The Title IX Coordinator will keep supportive measures confidential unless it impairs the ability to provide the supportive measures (i.e. a no-contact order).

Supportive Measures

Supportive Measures may include

Counseling

Deadline extensions

Course-related adjustments

Schedule Modifications (work or class)

Mutual restrictions on contact between parties

Increased security

Increased monitoring

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Emergency Removal

While the District must go through the grievance process before imposing any disciplinary sanctions or other actions that are not supportive measures, the District can remove a student respondent on an emergency basis.

The District must undertake an individualized safety and risk analysis and determine that an immediate threat to the physical health or safety of any student or other individual arising from the allegation justifies removal.

The respondent must be provided with written notice and an opportunity to challenge the decision immediately following removal.

This does not change any rights students have under the IDEA, Section 504, or the ADA.

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Emergency Removal/Administrative Leave

Similarly, the District may place an employee respondent on administrative leave during the pendency of the grievance process.

This does not change any rights employees have under Section 504 or the ADA.

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Retaliation

Retaliation against any individual who complains of sexual harassment is strictly prohibited. The District must take actions designed to prevent retaliation as a result of filing a complaint. Complaints alleging retaliation may be filed according to the grievance procedures for sex discrimination.

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Scenario:

A second grade student kisses another second grade student on the cheek on the playground.

How do you respond?

What information do you want to know?

Is this sexual harassment?

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Scenario:

On numerous occasions over a period of several months, an eighth-grade student touches another student from behind in the lunch line and makes sex-based jokes, remarks and gestures.

How do you respond?

What information do you want to know?

Is this sexual harassment?

Is it bullying?

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Scenario:

A female student complains that a male student (1) hikes his shorts up in gym class so that his private parts are exposed; (2) stands up on his chair in class so that his back side is close to her face; (3) plays an inappropriate and sexual song in Spanish class that makes her uncomfortable; and (4) throws his body on her and other students while playing tag at recess. The female and male student are friends and sit together, voluntarily, every day at lunch.

How do you respond?

What information do you want to know?

Is this sexual harassment?

Is it bullying?

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Scenario:

Throughout the boys’ varsity lacrosse season, the team captain makes sex-based remarks toward another member of the team, calling the student “gay” and “queer.” These names are also written in the bathroom stalls in the locker room. The victim complains to one of the assistant coaches. The assistant coach tells the victim that the captain’s behavior is just “boys being boys” and reminds the victim that he needs to “toughen up” to play varsity lacrosse. The victim subsequently quits the team.

How do you respond?

What are appropriate next steps for the students? For the assistant coach?

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Scenario:

Parents of student in your school recently disclosed to the guidance counselor that their daughter was sexually assaulted off campus by a male student at your school. The counselor encourages the filing of a police report, refers the student to rape counseling, and provides a waiver for all final exams. The counselor also informs the principal. Other students in the school learn about the report and begin to harass the victim at school and on social media. The counselor is able to identify one of the alleged harassers. The parents and student are not informed of any investigation or the outcome of any review of the matter by any district personnel.

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Did the district handle this appropriately?

Is this harassment?
If yes, what type of harassment?
Is this bullying? Teen dating violence?
Assess the counselor’s actions – what, if anything, would you do differently?
Assess the principal’s actions – what, if anything, would you do differently?

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Connecticut Bullying Law

Connecticut | New York | Washington, DC | www.shipmangoodwin.com

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2019 Changes to Bullying Law Effective July 1, 2021 – Public Act 19-166

No longer a requirement that both the alleged perpetrator and alleged victim be students attending school in the same district.
Removes requirement that the act be “repetitive”
Establishes a new harassment-like standard, which requires that the act be “severe, persistent, or pervasive.”

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“Bullying” in Connecticut

Increased

Flexibility

“

An act that is direct or indirect and severe, persistent or pervasive, which (A) causes physical or emotional harm to an individual, (B) places an individual in fear of physical or emotional harm, or (C) infringes on the rights or opportunities of an individual at school.

This new definition was part of changes to the bullying law in 2019

and became effective on July 1, 2021

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“Bullying” includes:

A written, oral or electronic communication or physical act or gesture

based on any actual or perceived differentiating characteristics, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity or expression, socioeconomic status, academic status, physical appearance, or mental, physical, developmental or sensory disability, or by association with an individual or group who has or is perceived to have one or more of such characteristics.

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“Cyberbullying”

Increased

Flexibility

“

Cyberbullying is explicitly defined as “…any act of bullying using the internet, interactive and digital technologies, cellular mobile telephone or other mobile electronic devices, or any electronic communications.”

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“Teen Dating Violence”

Increased

Flexibility

“

Teen dating violence means “any act of physical, emotional or sexual abuse, including stalking, harassing and threatening, that occurs between two students who are currently in or who have recently been in a dating relationship.”

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Bullying�MUST�be investigated�when it occurs…

On school grounds

At a school-sponsored or school-related activity, whether on or off school grounds

At a school bus stop or on a school bus or other vehicle owned, leased or used by district

Through the use of an electronic device or mobile device owned, leased or used by local or regional Board of Education, AND

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AND�Bullying�MUST�be investigated�when it occurs…

Outside of the school setting if any of such bullying fulfills any of the following 3 characteristics:

Creates a hostile school environment for the victim

Infringes on the rights of the victim at school OR

Substantially disrupts the education process or the orderly operation of a school

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When the Investigation is Complete…

No written report required. However, district must have procedures to document and maintain records of complaints and investigations.
Must have list of verified incidents.
Within 48 hours of the completion of the investigation, school officials must notify parents of any student who commits a verified act of bullying and the parents of any student against whom such act of bullying was committed.
Notify parents, verbally and by electronic mail, if such parents' or guardians' electronic mail addresses are known, that such parents or guardians may refer to the plain language explanation of the rights and remedies available under sections 10-4a and 10-4b published on the Internet web site of the local or regional board of education

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When the Investigation is Complete…

Parents of a student whom such act was directed must be invited to a meeting where the school communicates the measures being taken by the school to ensure student safety and prevent further acts of bullying.
Parents of a student who commits any verified act of bullying must be invited to a meeting to discuss specific interventions undertaken by the school to prevent further acts of bullying.
Meetings with each set of parents should be separate and distinct.

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What are my responsibilities for intervention?

When acts of bullying are verified, school officials must develop “student safety support plans for students against whom an act of bullying was directed that address safety measures the school will take to protect such students against further acts of bullying.”

When there are repeated verified acts of bullying against a single individual student or recurrently perpetrated bullying incidents by the same individual, school officials must develop case-by-case interventions that may include both counseling and discipline.

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What are appropriate consequences for bullying?

The notification to parents of a student who committed a verified act of bullying must include “a description of the response of school employees to such acts and any consequences that may result from the commission of further acts of bullying.”
Consider need for:

Increased supervision
Separation of students involved
Computer restrictions/loss of privileges
Counseling
Formal discipline (ISS, OSS, expulsion)

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How should I handle allegations that could require both a Title IX and a bullying investigation?

Use the more prescriptive/protective procedures
Inform parents that you will be investigating under both Title IX and Connecticut’s bullying law
Remember to adhere to the specific procedural requirements of the bullying law

List of verified incidents.
Within 48 hours of the completion of the investigation, school officials must notify parents of any student who commits a verified act of bullying and the parents of any student against whom such act of bullying was committed.
Notify parents or guardians that they may refer to the plain language explanation of the rights and remedies available under sections 10-4a and 10-4b published on the Internet web site of the local or regional board of education.
Parents of a student whom such act was directed must be invited to a meeting where the school communicates the measures being taken by the school to ensure student safety and prevent further acts of bullying.
Parents of a student who commits any verified act of bullying must be invited to a meeting to discuss specific interventions undertaken by the school to prevent further acts of bullying.

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Questions?

�

These materials have been prepared by Shipman & Goodwin LLP for informational purposes only. They are not intended as advertising and should not be considered legal advice. This information is not intended to create, and receipt of it does not create, a lawyer-client relationship. Viewers should not act upon this information without seeking professional counsel.

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