San Leandro Unified � School District� Title IX Training:� Process & Investigations � December 14, 2023�

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Presented By:

Leah M. Smith, Esq.

Today’s Agenda

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• Overview of the Title IX Regulations

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• Recognizing and responding to sexual harassment under Title IX

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• Investigation Requirements, Process, and Best Practices

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Overview of Title IX Regulations:�� Definitions and Scope

What is Title IX?

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

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(20 U.S.C. Section 1681 and 34 C.F.R. Part 106)

What is Title IX?

Title IX prohibits sex-based discrimination

• Sex-based discrimination includes:
• Sexual harassment
• Sexual violence
• Discrimination based on gender stereotypes
• Gender-based discrimination
• Sexual Orientation
• Gender Identity

How is the Title IX complaint process different from other District procedures?

• No discipline before the entire process is completed
• Written notice to parties of allegations and planned interview before interviews or other meetings
• Both parties have the opportunity to review all evidence and respond
• Both parties must receive a written investigation report and a separate report of the final decision
• The final decision must be made by someone other than the investigator or the Title IX Coordinator
• Both parties must have the chance to appeal to someone who was not involved in the investigation or the decision.

Terms (Parties)

• Complainant is the person who is alleged to be a victim of sexual harassment, whether or not he/she/they actually file a complaint.

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• Respondent is the person who is accused of sexual harassment.

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• Recipient means elementary and secondary schools, as well as postsecondary institutions, that receive federal financial assistance.

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Definition of Sexual Harassment Under Title IX

• Unwelcome conduct on the basis of sex:

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• Quid Pro Quo harassment;

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• Unwelcome conduct that is so severe, pervasive, and objectively offensive that it effectively denies equal access to an educational program or activity; or

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• Sexual assault, dating violence, domestic violence or sex-based stalking.

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What’s new in the definition of Sexual Harassment

• Quid pro quo and sexual assault are still absolutely prohibited.

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• Other sexual harassment (hostile environment):

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• must be severe AND pervasive AND objectively offensive

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• must “effectively deny” equal access to a school’s program.

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“Effectively Denies a Person’s Right to Equal Access to Education Program or Activity” Defined

• 2021 Q&A clarifies that an effective denial of equal access to educational opportunities may include:

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• Skipping class to avoid a harasser, a decline in a student’s GPA, having difficulty concentrating in class, or quitting a sports team but carrying on with other school activities following harassment.

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• A complainant does not need to have already suffered loss of education before being able to report sexual harassment.

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Examples of Sexual Harassment

• Unwelcome leering or propositions

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• Unwelcome sexual slurs or epithets

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• Sexual jokes, posters, gestures, cartoons

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• Spreading sexual rumors

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• Massaging, grabbing, sexual touching

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• Sexual assault or coercion

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NOTE: Sexual harassment can also include unwelcome conduct that isn’t itself sexual, but that is imposed on the basis of sex (e.g., if a group of middle school girls are taunted because they are girls, it doesn’t matter if they are called sexual names or just told that girls are gross.)

Notice of Sexual Harassment

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• The District has “actual notice” of sexual harassment if any employee hears or is told about the harassment or witnesses it.

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• Any person may report sex discrimination or sexual harassment to any employee orally or in writing.

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• If you observe or are told about any incident of sexual harassment, you should inform the Title IX Coordinator, James Parrish.

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Jurisdiction

• Title IX protects students in connection with all academic, educational, extracurricular, athletic, and other programs of the recipient.
• Conduct must occur on campus or in a setting that the District controls. This includes programs:

➢ in a recipient facility

➢ on a school bus

➢ sponsored by the recipient at another location, or on a school-sponsored field trip.

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• District must have substantial control over the Respondent (alleged perpetrator)
• At time of filing complaint, the complainant must be participating, or attempting to participate, in an educational program or activity.

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Other times Title IX may not apply

• Remember, if you are dealing with the “unwelcome conduct” prong, then the conduct must be severe AND pervasive AND objectively offensive – one-time incidents may not rise to this level.

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• Sex-based behavior may violate state law and District policy even if it does not meet Title IX criteria.

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Discuss

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What about off campus conduct?

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Hypothetical

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Maria and Mark are both fifth graders who have never gotten along. At the beginning of the school year, Mark is disciplined for intentionally tripping Maria in the school yard. The next week, Mark reports that Maria and her friends are shouting at him, calling him smelly and ugly. According to Maria, he responds by chasing them around the yard, calling them fat whores and trying to pinch their bottoms. In October, their teacher brings in a drawing she saw Mark showing to the boy who sits next to him. The drawing shows a naked girl and is captioned “mildewy Maria”.

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Does Title IX apply?

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Hypothetical

Julia claims that Bobby, a boy in her 7^th grade social studies class, has been texting her inappropriate comments afterschool and making sexual remarks to her in class about how he likes chubby girls. Julia also alleged that Bobby has tried to touch her breasts during class multiple times.

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Does Title IX apply?

More Hypotheticals

Which of the following is likely to constitute severe, pervasive, and objectively offensive conduct under Title IX:

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1. A single unwelcome hug by another student.

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• A teacher making repeated sexually suggestive and harassing comments to her students.

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• A group of second grade boys chasing girls at recess every day and trying to kiss them.

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• Several unrelated, unrepeated incidents of brief unwanted touching by separate individuals over the course of several years.

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Title IX Team

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• Title IX Coordinator
• Investigator
• Decision Maker
• Appeal Decision-Maker
• Facilitator(s) of the Informal Resolution Process

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All team members are required under the Title IX regulations to have received training in the definition of sexual harassment, the scope of the District’s education program, the Title IX complaint process, and how to serve impartially, as well as the specific requirements of their role.

Title IX Coordinator

SLUSD Title IX Coordinator:

James Parrish III

Director of Family and Student Support Services

Email: jparrish@slusd.us

Phone: (510) 667-6226

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Did you know that the Title IX regulations require that James be FAMOUS? It’s true!

• Applicants, students, parents, and unions must be notified of the name or title and contact information of the Title IX Coordinator and how to file a complaint of discrimination.

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Impartiality

• All team members must be impartial, unbiased and free from conflicts!!

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• Team members should not have:
• Personal relationship (friendship, family relationship) with parties
• History of conflict with parties
• History that makes the team member predisposed to siding with or believing a complainant or respondent

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• Avoid prejudgment of facts based on prior knowledge or bias for or against complainants or respondents

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• Bias/conflict of interest is ultimately a reason the parties can appeal the decision, so you may also want to consider how team members will appear to the parties

You Receive a Report Alleging Sex Harassment… Now What? ��

Before a Formal Complaint is Filed: Notice

• Quick review on “Notice” Standard: At the K-12 level, any staff member can receive information that constitutes the school district being deemed to have “actual notice”.
• Districts must respond to “actual notice” of sexual harassment promptly in a manner that is not deliberately indifferent.
• The District has “actual notice” if any employee hears or is told about the harassment or witnesses it.
• 2021 Q&A clarifies that actual knowledge also refers to notice of conduct that could constitute sexual harassment.
• All employees must understand their duty to report all allegations of sexual harassment to site administrators or managers.

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Before a Formal Complaint is Filed

• If an employee receives a report of sexual harassment, it should be forwarded to the Title IX Coordinator within one day

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• Site administrator and/or Title IX Coordinator - Talk to the Complainant & Parents, if appropriate

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• Get details of incident(s) – dates, individuals involved
• Explain District’s antidiscrimination and harassment policies, including Title IX rights and the right to file a complaint
• Provide a copy of the Title IX complaint procedures (AR 5145.71) and Title IX Coordinator contact info
• Discuss supportive measures and needed support

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Supportive Measures

• Supportive measures are nondisciplinary and nonpunitive
• Designed to:
• Restore or preserve equal access to the district's education program
• Protect the safety of all parties;
• Protect the district’s educational environment; and/or
• Deter sexual harassment
• Cannot unreasonably burden the other party
• Examples:
• Counseling
• Modifications of class schedules
• Mutual restrictions on contact
• Increased security
• Monitoring of certain areas of the campus
• Available whether or not a complaint is filed

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Emergency Removal

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• No discipline for Title IX offense before process is completed BUT

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• The District may remove a respondent on an emergency basis if it:

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• Conducts an individualized safety and risk analysis,

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• Finds an immediate threat to the physical health or safety of any student or other person, and

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• Provides the respondent with notice and an opportunity to challenge the decision immediately after the removal.

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When a Formal Complaint is Filed

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• Title IX Coordinator must notify the parties in writing of:

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• What is alleged: the parties, the alleged conduct, and the date and location of alleged incident (if known);

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• That the respondent is presumed not to be responsible for the alleged conduct; and

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• Their right to have an advisor of their choice, who may be an attorney, and their right to inspect evidence.

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• Investigation should not start until parties are notified

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Informal Resolution

• Informal Resolution only available if formal complaint is filed
• Informal Resolution is not appropriate in all cases: considerations around power imbalance, ongoing safety concerns, etc.
• Voluntary process

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• To provide informal mediation, recipient must:
• Provides to the parties a written notice disclosing: the allegations, the requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations, provided, however, that at any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint, and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared;
• Obtains the parties’ voluntary, written consent to the informal resolution process; and
• Does not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.

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What if the Complainant does not file a formal complaint?

• Possible complaint initiated by Title IX Coordinator:
• Must file a complaint in situations where a safety threat exists.
• The Title IX Coordinator must file a complaint if the District wants to discipline the student for the conduct.
• The Title IX Coordinator may file a formal complaint in other situations, including as part of the District's obligation to not be deliberately indifferent to known allegations of sexual harassment.

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• No formal complaint:
• Offer supportive measures
• Address conduct to ensure it does not recur

Dismissing a Formal Complaint

• Determined by Title IX Coordinator

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• Mandatory Dismissal:
• If complaint doesn’t meet Title IX definition of sexual harassment
• If the event didn’t occur in recipient’s educational program or activity (no jurisdiction)
• If the event was outside the U.S.
• If Complainant is not participating in an educational program of the District at time Complaint is filed

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• Permissive Dismissal:
• Per written request of Complainant
• Respondent disenrolls/quits
• Circumstances prevent investigation

Formal Complaint: Grievance Procedures

• Grievance procedures MUST include:
1. Treat complainants and respondents equitably.
2. Impose disciplinary sanctions only after following a grievance process that complies with the new regulations.
3. An objective evaluation of all relevant evidence.
4. No conflict of interest or bias by the Title IX Coordinator, investigator or decision-maker.
5. Training for Title IX Coordinator, investigator or decision-maker on definition of sexual harassment, scope of the recipient’s education program or activity, how to conduct an investigation and grievance process (including appeals), and how to serve impartially.

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Formal Complaint: Grievance Procedures cont’d

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Grievance procedures MUST include:

• Presumption of respondent’s innocence until conclusion of grievance process.
• Reasonably prompt time frames, to include limited extension of time frames for good cause.
• Description of range of possible disciplinary sanctions and remedies.
• Standard of evidence used.
• Appeal rights.
• Range of supportive services available.
• Not use or require evidence that is legally privileged, unless privilege is waived.

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Time to Investigate!

Investigation

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• Burden of gathering evidence is on the recipient – not the complainant, respondent, or witnesses.

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• Investigation must provide equal opportunity for both parties to present witnesses and evidence.

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• No “gag rule” – parties must be able to discuss allegations and gather evidence.

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• This means that if the parties sign a no contact order, it cannot include that they will not discuss the allegations at all. It can prevent the parties from talking to each other and spreading rumors.

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Investigation

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• Must provide written notice of any interview of the parties with time to prepare.

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• No limitation on parties’ right to have an advisor present at any interview or meeting. However, the District can limit the advisor’s participation during a meeting.

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• Both parties must have the opportunity to inspect and review evidence, and respond in writing, before the investigative report is completed.

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• Prepare and issue a final investigation report.

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Investigator

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• District employee -- manager or supervisor
• HR professional (in-house)
• HR consultant (3^rd party), but only if licensed as attorney or PI
• Private investigator
• In-house counsel
• Outside counsel

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Investigator

• Factors to consider when choosing an “outside” investigator:
• Does the complaint present a high level of potential liability for the district?
• Must the investigation be completed in a very short time frame and district employees cannot meet the timelines?
• Will the investigation be so complicated or involved, that district employees cannot reasonably be reassigned to handle it?
• Is the matter extremely sensitive or must it be handled with a heightened level of confidentiality?
• Does the matter involve many of the individuals who would normally conduct the investigation?

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Investigation Fundamentals

1. Review the applicable procedure
• Map out the steps and timeline for the investigation based on the procedure/policy
• Make sure required notices are sent, including copies of the applicable procedure/policy and other information required by the procedure/policy
2. Develop an investigative strategy
• Outline scope and breadth of investigation
• Determine who should be interviewed, in what order
• Determination what information should be reviewed
3. Conduct the investigation
• Begin promptly
• Begin interviews with core people and broaden as needed
• Before interviewing, outline interview questions, including elements of a particular complaint
• Before interviewing, review related documents/records

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Investigation Fundamentals Cont’d

Conduct the investigation, cont’d

• Prepare for interviews by identifying the following elements:
• Identity of person to be interviewed
• Possible right to union representation
• Possible admonishments, e.g. Lybarger warning
• Location, date, and time of interview
• Interview setting: privacy, comfort, attendance by advisors, parents, union rep
• Make arrangements to record interviews, if possible
• California law requires informed consent of witness (632 P.C.)

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• Look for each element of the type of sexual harassment at issue
• Hostile environment
• Quid pro quo
• Sexual assault, dating, domestic violence, or stalking

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Retaliation

• Admonish all parties and witnesses that retaliation for reporting harassment or participating in the process is prohibited.

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• It may be retaliation to respond to a report of sexual harassment by charging a respondent with a non-sexual harassment offense for the purpose of avoiding the regulations.

Evidentiary Standard

• There are two permissible standards of evidence for Title IX investigations:
• Preponderance of the Evidence (>50%)
• Clear and Convincing (>75%)

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• Recipients must apply the same standard to Title IX investigations involving students as those investigations involving employees.

Checklist for “Hostile Environment” Sexual Harassment

• Did the Respondent do something that affected the complainant, based on sex?
• Was the conduct unwelcome?
• Did the conduct occur at school, during a school activity, or in a place that the District controlled?
• Was the conduct severe and pervasive and objectively offensive?
• Did the conduct interfere with the complainant’s ability to participate in school or extracurricular activities?
• Would the conduct have had this effect on a “reasonable person” in the same position?

Hypothetical

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You are the principal of a middle school. A teacher reports to you that Julia, a student in her sixth-grade class, just told her that a boy has been making graphic sexual and obscene comments directed at girls in the cafeteria. She tells you that the lunchroom monitor has told the boy to knock it off, but it has continued. Julia decided to report it because the boys have been trying to grab her by her private parts.

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Julia’s mother files a complaint alleging that Tommy has been making sexual remarks to her daughter and other female students in the lunchroom and that Tommy has repeatedly touched Julia inappropriately.

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1. Who should you interview?
2. What evidence might be relevant?

Conducting the Interview

• Make appropriate disclosures (e.g., who you are, who you represent, why you are there)
• Ask for consent to record
• Once recorder is on, state date, time & place of interview, name of participants and have witness confirm on tape their knowledge of & consent of the recording
• Explain that district is required to investigate allegations of [sexual harassment, sexual violence, sex discrimination] and take appropriate action
• Have interviewee describe the conduct in own words
• 5 W’s – who, what, when, where, why
• Ask: “Is there anything else?”
• Ask follow up questions, including questions to confirm chronology of events, to fill in any gaps in the 5 W’s
• Don’t offer information or provide answers
• Ask about knowledge of any relationships between complainant & respondent or possible motivations for complaint or conduct at issue

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Conducting the Interview

• Be an active listener & critical thinker
• “Does this make sense?”
• “Do I understand exactly what happened?”
• “Will someone else reading my report understand exactly what happened?”

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• Clarify basis for witness’ knowledge of a “fact”
• How do they know? Saw it? Heard it? Was involved in it?

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• Use your timeline to identify discrepancies between witness’ own story & that of others - challenge facts

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• Distinguish between “no” & “I cannot recall.”

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Conducting the Interview

• At the end of the interview:
• Ask about and for copies of any relevant documents, texts, emails, photos, social media posts, etc.
• Ask whether there is anyone else the interviewee thinks should be interviewed about the incident/conduct
• Provide your contact information and advise the interviewee to contact you with any additional information
• Caution against retaliation
• Remind the interviewee to maintain confidentiality
• Advise interviewee you may need to follow-up as investigation proceeds

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Writing the Investigative Report

• Follow your institution’s grievance procedures, and any applicable policies
• It must contain the following elements:
• Parties and witnesses
• Who performed investigation
• Incident – when was it reported, to whom; when did it take place
• Alleged Violations
• Applicable policies: code of conduct, district policy, etc.
• Summaries of interviews with parties and witnesses
• Summary of relevant evidence (e.g., information provided by witnesses, review of documentation, review of video footage, etc.)
• Credibility determination for each witness
• Findings of fact
• Conclusion – “I conclude it is/is not more likely than not that respondent…”

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Determining Relevance

• “Relevant” = a tendency to prove or disprove something at issue.
• Note: All relevant evidence, inculpatory and exculpatory, must be admitted and parties have an opportunity to inspect.
• Specific Evidence Determined Not Relevant:

• Complainant’s sexual predisposition.

• Prior sexual history, unless to prove consent or that someone else perpetrated the act.

• Treatment records without consent.

• Privileged information.

Determining Credibility

• Investigator must determine credibility of all witnesses.

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• Factors to consider when making credibility determination:
• Changes in behavior of the Complainant
• Witnesses’ conduct during interviews, including body language, eye contact, tone, nervous behaviors, sweating

*Be mindful of cultural differences

• Consistent/inconsistent information and/or detail
• ASK: Does this make sense?
• Corroboration by other witnesses, documents, or other evidence

Findings of Fact

• Some evidence may not be in dispute
• Some evidence can be corroborated by the investigator
• Information from complainant or respondent may be corroborated by witnesses
• When information received from complainant and respondent differs on important points, make credibility determinations
• State what facts are determined to be true/untrue and what areas could not be determined (if any)

Preserve Evidence

• Take note of when, where, and from whom an item was taken
• Store all evidence in a secure location
• If any items are surrendered to law enforcement, take a picture of the item and note when, where, and to whom it was surrendered
• Photograph physical injuries and promptly arrange for appropriate first aid/medical attention
• Title IX regulations require institutions to keep records to send to OCR for compliance reviews
• Retain evidence for period of 7 years

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Opportunity to Inspect Evidence

• Before the investigator issues the investigation report, parties must be given at least 10 days to inspect and review all evidence gathered by the investigator
• Parties may inspect and review evidence even if it will not be relied upon in the determination.
• If there is a conflict between FERPA and Title IX, Title IX governs

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Privacy Considerations

• Keep confidential the identity of anyone who reports sexual harassment, files a complaint, or is accused of sexual harassment except as necessary to conduct an investigation

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• BUT, keep in mind confidentiality is limited in practice:
• Respondents are entitled to written notice if a formal complaint is filed
• Parties’ ability to discuss the allegations may not be limited
• Parties must be permitted to review all evidence, including witness statements
• Complainant must be informed of all remedies, including discipline of the respondent, regardless of FERPA considerations

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Handoff to the Decision-Maker

• At least 10 days prior to the determination of responsibility, the investigator must send the investigative report and evidence to each party and the party’s advisors in electronic format or hard copy, for their review and written response.
• Title IX Coordinator may determine the most appropriate and equitable method of providing parties with the report, keeping sensitive nature of report in mind
• Investigator also sends the investigative report and all the evidence to the Decision-Maker (cannot be Title IX Coordinator) to review.

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K-12 “Cross-Examination” Process

• Parties must have opportunity prior to written determination being issued to ask the other party relevant questions.
• ❏ Send written notice to both Complainant and Respondent regarding decision process
• ❏ Party sends questions to Decision Maker
• ❏ Decision Maker determines whether questions are relevant (or whether there are any questions, as opposed to just a response.) Remember previous definition for relevancy.
• Pass along any relevant questions to the other party or investigator, if necessary
• ❏ Party answers questions in writing
• ❏ Offer follow-up opportunity
• After the parties have had an opportunity to review the investigative report and submit questions,“[t]he decision-maker(s), who cannot be the same person(s) as the Title IX Coordinator or the investigator(s), must issue a written determination regarding responsibility.”

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Written Determination

• Must provide written determination parties simultaneously.
• The determination must contain:
• Identification of the parties and allegations potentially constituting sexual harassment;
• A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, and methods used to gather other evidence;
• Findings of fact supporting the determination
• Rationale/analysis for the result
• ❏ Any sanctions issued, if permissible to share (if impacts other party)
• ❏ Remedies to Complainant
• The determination regarding responsibility becomes final either on the date that the recipient provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.

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Appeal

• Both parties get 10 days to file an appeal in writing from either a decision made after an investigation or from the dismissal of a formal complaint.

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• 3 Bases for Appeal:
• Procedural irregularity that affected the outcome;
• New evidence that was not previously available and would affect the outcome; or
• Conflict of interest or bias by Title IX Coordinator, investigator or decision-maker that affected the outcome.

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Appeal

1. Send letter notifying both parties of appeal

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• Parties submit written explanation for appeal/objection to appeal

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• Appeal Decision Maker issues determination

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• Provide determination to both parties simultaneously

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Title IX Complaint Process Sample Timeline

• Day 0: Formal complaint is received by the District
• Title IX Coordinator sends notice of the allegations to be investigated to the parties
• Investigation begins
• Day 40: Investigation should be complete, and parties sent the evidence
• Parties have a chance to review and respond to the evidence [must have at least 10 days to review]
• Day 50: Investigative report sent to the parties [must be sent at least 10 days before the written determination]
• Parties have a chance to review and respond to investigative report and submit questions of witnesses
• Day 60: Written determination sent to the parties
• Day 70: Last chance for parties to file an appeal
• Day 90: Written appeal determination sent to the parties
• *Continuance for good cause as determined by Title IX

Coordinator and communicated to parties in writing

Questions??

Thank You! ���lsmith@ghslaw.com ����www.ghslaw.com�