Title IX

Title IX Training Webinar
June 24, 2020

Title IX Overview
Topic #1: What is Title IX?

Law: Title IX, 20 § U.S.C.1681

• Prohibits discrimination "on the basis of sex";

• Education programs and federally funded schools (whether or not sponsored by the educational institution);

• Protects students, employees, applicants, & all other persons

Title IX Implementing Regulations

1) Designation of a Title IX Coordinator to coordinate school's responsibilities

2) Disseminate Notice of Policy/Title IX Obligations/Title IX Coordinator Info

• Title IX/Sexual Misconduct Policies

• Anti-Bullying and Harassment Policies

3) *Grievance/Complaint Procedures

Enforcement of Title IX

1) Agency Enforcement - OCR

• Voluntary resolution

• Equitable Relief

2) Private Litigation - In Courts

• Monetary damages

• Various additional claims: Breach of contract, constitutional claims, etc.

• Complainant or Respondent as Plaintiff

Enforcement of Title IX

• Standard - Deliberate Indifference

• Plaintiff must prove officials had actual knowledge AND harassment was so severe, pervasive & objectively offensive that it barred the victim from access to their education
• Can be avoided by "merely responding to harassment in a manner that is not unreasonable"

New Regulations

• Prior Title IX Guidance revoked in September 2017

• Proposed Regulations were released November 16, 2018

• Public Comment period was open until January 28, 2019

• Final Regulations released May 6, 2020 with an implementation date of August 14, 2020

• Note:

• Lawsuits challenging regulations filed;
• Letters sent to DOE requesting delayed implementation

New Regulations - Major Changes

• Definitions and Jurisdictional Requirements - including Permissive and Mandatory Dismissals

• "Actual Knowledge" Standard on Who has to Report - Different for K12s and Postsecondary

• Investigation and Reports Timelines and Procedures

• Formal Resolution Procedures - Live Hearings and/or Cross-Examination

• Scope: Covers employee-on-employee situations

• Mandatory Appeals on Certain Criteria

• Recordkeeping and Retention Requirements

• Training Requirements

Definitions: Sexual Harassment

1. A school employee conditioning an educational benefit or service upon a person's participation in unwelcome sexual conduct (often called quid pro quo harassment);

OR

2. Unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school's education program or activity (often called hostile work / educational environment harassment),

OR

• Dating Violence: Violence by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship is determined by:

• The length of the relationship.
• The type of relationship.
• The frequency of interaction between the persons involved in the relationship

• Domestic Violence: Includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner, a parent of a shared child, a former or current co-habitor as a spouse or intimate partner, or someone similarly situated to a spouse under domestic or family violence laws ... , or by any other person against a victim who is protected under the domestic or family violence laws[.]

• Stalking: 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; orb) suffer substantial emotional distress.

• Sexual assault: An offense classified as a forcible or nonforcible sex offense by the FBl's uniform crime reporting system:

• Rape,
• Fondling,
• Incest, or
• Statutory rape

Scope of "Educational Program or Activity"

• Conduct must occur in "educational program or activity"

• Does not mean geography- no on/off-campus bright line rule
• Includes "locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs"

• Conduct must be against a person "in the United States"

• Does not apply to study abroad

• New:

• Includes "any building owned or controlled by a student organization that is officially recognized by a postsecondary institution"
• Implication: Greek life and "Theme" houses

Scope- Mandatory Dismissal

• No Title IX jurisdiction?

• Must "dismiss" the complaint
• Clarification in Final Rule: Dismissal means dismissed from the Title IX process; the school can still apply another conduct code or offer supportive measures

• Practical Difficulty- Knowing if a complaint implicates Title IX jurisdiction at various stages of the process

Scope- Permissive Dismissal

1) New final rule allows schools to dismiss a complaint (with prompt and simultaneous written notice to the parties) if at any time:

1) A complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations;

2) The respondent is no longer enrolled or employed by the recipient; or

3) "Specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination as to the formal complaint or allegations."

TOPIC #2: Implementing the New Title IX Regulations

Major Compliance Areas

1) Policy and Procedures Review and Update

• Incorporate new language on jurisdiction and sexual harassment and retaliation definitions

• Incorporate investigation and hearing/cross-examination procedures

• Think about: who is going to be our Title IX Coordinator, lnvestigator(s),

Decision-Maker(s) and appeal authorities?

• Internal or External

• Revise existing notices and policies, or create "one-stop" policy and procedures for all constituencies - students, faculty/teachers, and staff

• Review collective bargaining agreements

2) Record-keeping and Retention

• Final Regulations require the following to maintained for SEVEN years:

1) Each sexual harassment investigation, including determinations, audio or visual recordings, disciplinary sanctions, and any remedies provided to the complainant;

2) Any appeal and the result therefrom;

3) Informal resolution, if any; and

4) All materials used to train Coordinators, Investigators, those who facilitate informal resolution, and decision-makers with regard to sexual harassment.

• Final Rules require the following records to be created and kept for SEVEN years:

• Any actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment.

• Document the basis for the conclusion that your response was not deliberately indifferent, and

• Document that you have taken measures designed to restore or preserve access to the recipient's educational program or activity.

• If no supportive measures are given to the complainant, document why it was not clearly unreasonable

3) Training

• Schools must require training for anyone designed as a Title IX Coordinator . Investigator . Decision-Maker. or any other person designated to facilitate an informal resolution on designated topics

• Training materials:

• Must not rely on sex stereotypes
• Must promote impartial investigations and adjudications of formal complaints

TOPIC #1: Defining Supportive Measures 
Deliberate Indifference Standard 

• Recipient must respond to allegations of sexual harassment in an education program or activity "promptly in a manner that is not deliberately indifferent"

•Recipients are deliberately indifferent only if response is clearly unreasonable in light of the known circumstances

•Must treat complainants and respondents equitably

Regulatory Definition of Supportive Measures § 106.30{a) 

• Non-Disciplinary, non-punitive individualized services

• Offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent

• Offered before or after the filing of a formal complaint or where no formal complaint has been filed

• Continue through the conclusion of the grievance process when applicable

• Can be continued even after a finding of non-responsibility

• Designed to restore or preserve equal access to the recipient's education program or activity

• Without unreasonably burdening the other party

• Measures designed to protect the safety of all parties or the recipient's educational environment, or deter sexual harassment

What is Unreasonably Burdensome? 

• No specific definition - consider unique circumstances

• Does not depend solely on continued access to academic programs

• Must take into account:

• Nature of the educational programs, activities, opportunities, and benefits - not solely those programs that are "academic" in nature

• Comments suggest that the district's grievance process must be conducted in a reasonably timely manner to avoid the supportive measures imposed pending the outcome of a grievance process being unreasonably burdensome.

Regulatory Definition of Supportive Measures§ 106.30(a) 

• Counseling

• Extension of Deadlines or other course-related adjustments

• Modifications of work or class schedules

• Campus escort services

• Mutual restrictions on contact between the parties

• Leaves of absence

• Increased security and monitoring

• Other similar measures

Other Examples from Comments

• Sending student to principal's office

• Educational conversations

• Changing student seating

• Changing class assignments

• These are not "inherently ... punitive or disciplinary," and may be taken to maintain order, protect student safety, and counsel students about inappropriate behavior.

Recipient must maintain confidentiality of supportive measures to the extent possible so as to not impair the ability to provide them

Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures 

Caution! 

• Comments specify that a school district's identified disciplinary sanctions should NOT be used as supportive measures

• Must go through grievance process

• Suspension, expulsion, and termination of employment are inherently disciplinary

Emergency Removal (Student) 

•    May remove a Respondent from an education program or activity after:

• Undertaking an individualized safety and risk analysis
• Determining an immediate threat to physical health or safety of any student or individual arising from the allegations justifies removal

• Must provide Respondent with notice and an opportunity to challenge the decision immediately following the removal

• Note that any decision to remove a student for more than ten {10) school days requires a Board hearing.

• Iowa Code 282.4 - suspension and expulsion
• Iowa Code 282.3 - removal of a student whose "presence [is] injurious to the health of other pupils"

Administrative Leave (Employee) 

• Non-student employee may be placed on administrative leave during pendency of grievance process

• Note that employees must be placed on administrative leave under certain circumstances (e.g., complaint of abuse of a student by a school employee under Chapter 102)

Interaction with Other Laws 

• Students and employees are still entitled to applicable provisions of the Individuals with Disabilities in Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA)

• For students:

• Consider whether a manifestation determination is necessary for students with an IEP or Section 504 Plan (10 days of disciplinary removal)

• Consider provisions of an IEP or Section 504 Plan in designing interim supportive measures

• For employees:

• Consider whether interactive dialogue is necessary to discuss reasonable accommodations due to a known disability

TOPIC #2: Title IX Coordinator Responsibilities 
Responsibility for Supportive Measures 

• Title IX Coordinator responsible for coordinating the effective implementation of supportive measures

• Burden of arranging and enforcing measures must remain on the Recipient, not on any party

• Coordinate implementation of measures with appropriate staff

• Serve as point of contact for students to ensure implementation occurs

• Promptly contact the Complainant to discuss the availability of supportive measures

• Consider the Complainant's wishes with respect to supportive measures

• Inform the Complainant of the availability of supportive measures with or without filing a formal complaint

• Explain the process for filing a formal complaint to Complainant

Documentation 

• Maintain complete records of each matter (required to be maintained for seven years)

• Must document the facts or circumstances that render certain supportive measures appropriate or inappropriate

• If a Complainant-requested measure was not implemented, document why the response to the Complainant was not clearly unreasonable in light of the known circumstances

Topic #3: Informal Resolution
Informal Resolution 

• "Default" is that a formal complaint must be investigated and adjudicated by recipient

• Recipient may choose to offer the parties an informal process to resolve the complaint

• Recipients may not offer informal resolution unless a formal complaint has been filed

Informal Resolution Examples 

•    Mediation

•    Arbitration

•    Restorative Justice

• Requires Respondent to admit wrongdoing

Alternative to Formal Grievance Procedures

• Informal Resolution may not be required in lieu of the formal grievance procedures

• May be initiated any time prior to reaching a determination regarding responsibility

• Any party may withdraw from the informal resolution process at any time prior to finalizing

Other Requirements

• Informal Resolution facilitators must be free from conflicts of interest, bias, and trained to serve impartially

• Informal Resolution process must have "reasonably prompt time frames"

• The initial written notice of allegations should alert parties to the availability of any Informal Resolution the Recipient has made available

Training for Facilitators

• Definition of sexual harassment

• Scope of recipient's education program or activity

• How to conduct informal resolution process

• How to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, or bias

Recipients Must:

• Provide written notice disclosing the allegations, requirements of informal resolution process, and right to withdraw from informal process

• Should also be provided to minors' parents or legal guardian

• Obtain parties' voluntary, written consent

Written Disclosure

• If Recipient plans to allow informal resolution facilitators as witnesses in subsequent formal grievance processes, that fact must be disclosed to parties

• Must disclose consequences of participating in informal resolution process, such as fact that records will be maintained or could be shared or not shared

Recipients Must Not:

• Offer or facilitate informal resolution to resolve allegations that an employee sexually harassed a student

• In cases of employee-to-student sexual harassment, follow Chapter 102!

Confidentiality

• Recipient determines the confidentiality of informal resolutions

• May be influenced by the type of informal resolution offered
• Must inform parties about the nature and consequences of any confidentiality provisions

Outcomes

• Written agreement between the parties;

• Could include provisions similar to Interim Support Measures;

• Could include disciplinary measures;

• Provide finality for the parties.

New Title IX Regulations: K-12 Decision Makers

TOPIC #1: Decision Maker Roles and Responsibilities

Who Should the Decision Maker Be?

• Cannot be the same as the Title IX Coordinator or Investigator for that case

• Cannot be the same as the Appeal Decision Maker

• May be one person or a multi-member panel

What is the Decision Maker's Role?

• Act as a neutral

• Determine what questions are relevant to the case

• Objectively evaluate all relevant evidence both inculpatory and exculpatory

• Reach a determination regarding responsibility without giving deference to the investigative report

Decision Making Process

• Written or

• Live Hearing

Cross Examination

• Occurs in some form in both the written and live hearing options

• DOE determined it is necessary for due process

• DOE presumes Decision Maker will control advisors and advocates to ensure no party is abused by cross-examination process

Live Hearing Requirements

• Each party is permitted to have an "advisor," who could be attorney or other representative

• Each party's advisor is permitted to ask the other party and any witnesses all relevant questions, challenge credibility, and conduct cross-examination

• If a party does not have an advisor, the District must provide one free of charge to conduct cross-examination on behalf of that party

• The District must provide technology to all the live hearing to take place with parties in separate rooms if requested

• Technology training must be provided to decision maker

• The District must create an audio or video recording, or written transcript, of the live hearing and make it available to the parties

Written Option

• Instead of a live hearing, the decision maker may 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 from each party

Cross-Examination Procedure

• Each party's advisor will submit questions for cross-examination

• Your role: Decide if the questions are relevant and:

1) Ask the question if relevant; or

2) Decline to ask an irrelevant question, and explain why the question is irrelevant to the asking party in writing

Relevance

• Evidentiary definition: Evidence having any tendency to make the existence of any fact of consequence to the determination at issue more or less probable than it would be without the evidence

• Determining relevance is different that determining how much weight to give the evidence
• Irrelevant evidence: Excluded
• Relevant, but not much weight: Included for consideration

Relevance: Privileged Information

• Any party's medical, psychological, and similar records are not relevant unless voluntarily provided by that party

• Any information protected by a legally recognized privilege (like attorney-client privilege) is not relevant

• Ex. Cannot ask: "What did your attorney tell you about whether these actions were consensual?

Questions Prohibited

• In either a live hearing or using the written option, questions concerning the complainant's sexual predisposition or prior sexual behavior are not relevant unless:

• Offered to provide someone other than respondent committed the conduct alleged; or
• Incidences concern prior sexual behavior with the respondent and are offered to prove consent

Credibility Assessments

• DOE: Do not rely on "demeanor" alone - can be inaccurate, especially in traumatic situations

• Take trauma into account

• Other factors for credibility:

• Consistency;
• Plausibility; and
• Reliability

Determining Responsibility

• Following live hearing or written exchange of questions, the decision maker must determine responsibility

• Independent assessment of the evidence

• No deference to investigation report

Evidence Standard

• Schools may utilize either a "preponderance of the evidence" OR "clear and convincing" evidence standard, HOWEVER

• School must apply this standard to:

• For formal complaints against students as for formal complaints against employees, including faculty, and
• Apply the same standard of evidence to all formal complaints of sexual harassment

• Preponderance of the Evidence: More likely than not

• What is more plausible?
• What corroborating evidence is supportive?
• Sometimes - who do you believe more and why?

• Clear and Convincing: Highly probable; highly and more substantially likely to be true

• Neither are as high as the standard of evidence in criminal cases - "beyond a reasonable doubt"

Written Decision

• Identification of Allegations

• Procedural Steps

• Findings of Fact

• Application of Facts to Code of Conduct

• Statement of Results and Rationale for Each Allegation

• Sanctions and Remedies

• Appeal Procedures

Ensure Title IX Coordinator receives a copy of decision and any other documents involved in process for required 7-year retention

• Decision must be provided to parties simultaneously

• Determination is not final until:

• Date of written determination following appeal; or, if no appeal is taken
• Date the appeal deadline expires

TOPIC #2: Sanctions and Remedies

Sanctions

• Range of possible sanctions must be described in policy

• Focus not just on discipline, but also on restorative remedies to prevent recurrence

• Don't forget about other legal obligations

Sanctions – Examples

• Written Warning

• Suspension

• Expulsion

• Demotion

• Termination

Other Legal Obligations

• Student Conduct Policies

• Suspension/Expulsion beyond 10 days

• IDEA/504 Students

• Employee Due Process Procedures

Remedies

• Title IX Coordinator responsible for implementing remedies

• May be the same or similar to interim supportive measures

• Must be designed to restore or preserve equal access to the District's education programs or activities

• Need not be non-disciplinary or non-punitive and need not avoid burdening the Respondent

• Range of possible remedies must be included in policy

• Evaluated by DOE under a "deliberate indifference" standard

• Examples:

• Counseling modifications
• Accommodations to class schedules or school work
• Restrictions on contact between the parties
• Increased monitoring

TOPIC #3: Appeal Process

Appeal Procedures

• District must notify the other party in writing when appeal is filed

• Give both parties a reasonable, equal opportunity to submit a written statement

• Issue 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 multi-member panel

• Not the full School Board

• Avoid conflict of interest and bias

Mandatory Appeals

• Procedural irregularity that affected the outcome of the matter

• New evidence not reasonably available at the time of the determination regarding responsibility or dismissal was made

• Evidence could affect outcome

• Title IX Coordinator, Investigator, or Decision Maker had conflict of interest or bias for or against either party that affected the outcome

Permissive Appeals

• May offer an appeal on any other basis, as long as the opportunity is offered to both parties equally

• Examples:

• Whether the evidence met the identified standard of proof
• Whether the sanction is proportional to the policy violation

TOPIC #4: Impartiality, Bias, and Conflicts of Interest

Impartiality

• Divorce yourself from stereotypes or generalizations about groups of people- e.g., "victim-blaming" or "believe all women"

• DOE: The Decision-Maker must endeavor not to "develop a personal relationship" with one party over another, including based on whether parties are remote for live hearing

Implicit/Unconscious Bias

• Undergo training or obtain resources on implicit or unconscious bias;

• Recognizing and acknowledging biases

• Potential protected class bias
• Group bias and assumptions - athletes, certain employment positions, etc.

• Gather input from diverse sources and viewpoints, to the extent possible

• Avoid focusing on early "gut reactions" and weigh all possible outcomes

Conflicts of Interest

• May have to recuse yourself from certain cases if a conflict of interest exists

• Disclose and recognize conflicts of interest:

• Familiarity or connection to a party?

• Stake in the outcome?

Confidentiality

• Must keep confidential the identity of any individual who has made a report or complaint, any respondent, and any witness confidential except as

• May be permitted under FERPA;
• as required by law, or
• to carry out the investigation and hearing procedures

• Keep identities and information confidential to the hearing and resolution process - only talk to school officials with a "need to know"

I. Identification of Title IX Coordinator

• Each recipient must identify at least one employee as Title IX Coordinator

• Comments note that it's a big job and recipients may choose to designate more than one. By way of example only:

■ Coordinator and one or more deputy coordinators;

■ Separate coordinators for complaints involving employees and complaints involving students.

• Must be referred to as ''Title IX Coordinator"

• Must notify applicants, employees, students, parents/guardians, and officially recognized unions/professional organization of:

• Name or title
• Address
• Email address
• Telephone number

• Name/title and contact information must be prominently displayed:

• On recipient's website and
• In each handbook or catalogue made available to applicants, employees, students, parents/guardians, and any recognized employee union/professional organization.

• Title IX Coordinator:

• Must not have a conflict of interest;
• Must not have a bias for or against complainants or respondents generally or a specific individual;
• Need not be a stand-alone position, but should have adequate time to devote to Coordinator responsibilities
• Must have required training

• Title IX Coordinator must have training in:

• Definitions of sexual harassment
• Scope of recipient's education program or activity
• How to conduct a grievance process
• How to serve impartially, including
  • Avoiding prejudgment of facts
  • Bias
  • Conflicts of interest

II.         Coordinator Role in Reporting

• Any person may report sex discrimination, including sexual harassment, to the Title IX Coordinator, regardless of whether the person reporting is alleged to be the target of the conduct

• Issues to consider:

• Third party reports

• Unwilling complainants

• Anonymous reporting

• Reports may be made at any time (including during non-business hours) by telephone, email, or mail.

• Formal complaints may be filed with the Coordinator in person, by email, by mail, or by any other method designed by the recipient

• E.g., online reporting system
•  Formal complaint= any "document filed by a complainant"

• Can encourage but not require use of designated form or on line reporting portal

• Physically or electronically signed by complainant
• Title IX Coordinator may sign a complaint but does not become the complainant or a party to the complaint

Ill. Supportive Measures

• Non-disciplinary, non-punitive individualized services

• Offered as appropriate, reasonably available, and without fee or charge to complainant or respondent

• Before or after filing of formal complaint, or where no formal complaint has been filed

• Designed to restore or preserve equal access to educational program or activity

• Title IX Coordinator must promptly contact complainant to:

•  Discuss availability of supportive measures;
•  Consider complainant's wishes with respect to SMs;
•  Inform the complainant of the availability of SMs with or without filing a formal complaint, and
•  Explain the process for filing a formal complaint.

• Title IX Coordinator is responsible for overseeing the implementation of supportive measures for the recipient

• Coordinate with other employees on a need-to-know basis;
•  Check in with parties regarding provision and effectiveness of SMs.

IV. Formal Grievance Process

• Title IX Coordinator oversees and serves as an informational resource during a formal grievance.

• Shall not serve as decision-maker or appeal decision-maker;

• Once formal complaint is filed, either:

• Formal grievance process with investigation and determination of responsibility, or
• If available under recipient's policy, complainant may opt for informal resolution:

• Parties must provide voluntary, written consent;

• Broad discretion in developing informal process.

• Dismissal: Title IX Coordinator must ensure dismissal of formal complaint where:

• Conduct alleged does not constitute sexual harassment;
• Did not occur in recipient's program or activity; or
• Did not occur in U.S.

• Dismissal: Title IX Coordinator should also evaluate grounds for permissive dismissals:

• Where complainant notifies Coordinator in writing that they wish to withdraw formal complaint or any allegations therein;
• Where Respondent is no longer enrolled or employed by recipient; or
• Where specific circumstances prevent the recipient from gathering evidence to reach determination.

• Title IX Coordinator should ensure that investigators and decision-makers:

• Receive or have required training;
• Are unbiased and impartial;
• Do not have a conflict of interest in the case;
• Understand and comply with the recipient's process for investigating and resolving complaints;
• and assign an alternate where needed.

• Title IX Coordinators are responsible for effective implementation of any remedies issued by the decision-maker.

V.  Bias and Impartiality

• Title IX Coordinator must be unbiased and impartial

• Bias= prejudice in favor of or against one person or group compared with another

•  Opposites of bias= fair, objective

• Title IX Coordinator is not on anyone's "side"

• The Coordinator's main goal is overseeing a fair and impartial process;
• The Coordinator does not have an interest in the outcome of the grievance process, but rather in ensuring that the process is followed with integrity and the rights of the parties are respected.

• Conflicts of interest

• A conflict of interest exists when the Coordinator, Investigator, or Decision­Maker has a personal or professional interest in a case that prevents them from discharging their duties in a fair, neutral, and impartial manner
• Conflicts of interest may arise due to Coordinator, Investigator, or Decision­Maker's relationship to a party or witness;
• One of the above individuals has a stake in the outcome of the process (e.g., personnel evaluations based on increasing or reducing number of founded complaints);
• Other circumstances that negatively affect the individual's neutrality.

• The comments quote Justice Ruth Bader Ginsburg, saying that with respect to the balance between sex equality and due process, "it's not one or the other. It's both."

• Must avoid the intentional or unintentional injection of sex-based biases and stereotypes into Title IX proceedings.

• Examples of bias:

• Assuming that complainants or respondents generally are more likely to tell the truth
• Assuming that respondents are presumptively responsible for alleged sexual misconduct
• Assuming that a victim was "asking for it" based on what they wore, how much they had to drink, how they were dancing, etc ...

• An unbiased process:

• Gives parties equal opportunities for participation at every stage;
• Presumes innocence until a determination regarding responsibility is made;
• Results in a determination made based on an objective review of all relevant, available evidence

• An unbiased process provides both parties with equivalent rights to:

• Written notices and documents;
• Access to recipient's resources;
• Introduce witnesses and evidence;
• Review and respond to the other party's evidence;
• Participate in grievance procedures; and
• An objective determination based on all facts.

VI.       Other Responsibilities

• Title IX Coordinator should review or be involved in the review of any policies relating to recipient's Title IX obligations:

• This may include ensuring consistency between non-Title IX policies and handbook provisions

• Student conduct and discipline

• Employee conduct and discipline

• Master contracts

• Other grievance procedures

• Title IX Coordinator should coordinate a training program to ensure adequate training of all stakeholders:

• Investigators;
• Decision-makers;
• "Appropriate persons"

• K-12: all employees

• Higher Ed: Coordinator and any official with authority to institute corrective measures

• Training must include:

• The definition of sexual harassment in § 106.30;

• The scope of the recipient's education program or activity

•  How to conduct an investigation and grievance process (including hearings, appeals, and informal resolution processes, as applicable);

• How to serve impartially (including avoiding prejudgment, bias, and conflicts of interest)

• Additional training for decision-makers:

✓ Training on technology to be used at live hearing (if applicable);

✓ Issues of relevance;

✓ Questions of evidence (including relevance of questions about complainant's sexual predisposition or prior sexual behavior)

• Additional training for investigators:

✓ Training on issues of relevance to create an investigative report that fairly summarizes relevant evidence.

✓ VI. Other Responsibilities

• Training materials

• Must not rely on sex stereotypes
• Must promote impartial investigations and adjudications of formal complaints

• Recipients are required to publish all training materials on their websites, or if they don't maintain a website, make them available for public inspection upon request.

• Recordkeeping requirements:

1) Each sexual harassment investigation, including determinations, audio or visual recordings, disciplinary sanctions, and any remedies provided to the complainant;

2) Any appeal and the result therefrom;

3) Informal resolution, if any; and

4) All materials used to train Coordinators, Investigators, those who facilitate informal resolution, and decision-makers with regard to sexual harassment

Must be maintained for 7 years.

• Recordkeeping requirements:

1) Any actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment.

2) Document the basis for its conclusion that its response was not deliberately indifferent,

3)  Document that it has taken measures designed to restore or preserve access to the recipient's educational program or activity.

4) If no supportive measures are given to the complainant, or if complainant's requested supportive measures are rejected, document why it was not clearly unreasonable to do so.

Must be created and maintained for 7 years.

I. Essential Elements of an Investigation

• An investigation is simply the process the school uses to resolve complaints of sex discrimination or sexual harassment.

• The investigator is the initial fact-finder.

• Under the final Title IX rules, effective 8/14/2020, the investigator cannot be the individual who makes a determination regarding responsibility, including sanctions.

• ALL investigations must be:

• Adequate
• Reliable
• Unbiased
• Impartial
• Prompt
• Provide an equal opportunity for both parties to present witnesses and other evidence.

• The Investigator

• Cannot be the decision-maker or appeal decision-maker;
• Can be internal or external;
• Must be impartial and unbiased in general and in the specific case;
• Should be recused if there is a conflict of interest.

• The specific steps in a Title IX investigation will vary depending on:

• The nature of the allegation,
• The age of the student(s) involved,
• The size and structure of the school,
• Any applicable state or local requirements, and
• What the school has learned from past experience.

• Key procedural elements from final Title IX Rules:

• Written notice of investigation sent to parties:

• Identities 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;

• Parties' right to an advisor of their choice, at the party's expense, who may be an attorney; and

• Parties' right to review and comment on evidence.

• If new allegations added, must issue written notice.

•Key procedural elements from final Title IX Rules:

• Prior written notice of interviews to parties with sufficient advance time to prepare:

• Date

• Time

• Location

• Participants

• Purpose

• Key procedural elements from final Title IX Rules:

• Burden of proof and evidence gathering on school, not parties;

• May be preponderance of evidence or clear and convincing;

• Must use same standard for all complaints of sexual harassment against students and employees

• Respondent entitled to presumption of innocence (must be stated in written notice).

• No "gag orders" restricting parties from discussing allegations or gathering/producing relevant evidence:

• Must also protect against retaliation/intimidation of parties/witnesses;
• Schools can require parties and advisors to sign confidentiality/non-disclosure agreement to ensure evidence not used for any purpose other than participation in Title IX proceedings.

• Additional considerations:

• Are there any other ongoing school or criminal investigations of the incident? If so, determine the scope of each investigator's role.
• Consider whether information can be shared among the investigators.
• If forensic evidence is involved, consider whether to consult with campus law enforcement or forensic expert to ensure evidence is correctly interpreted.

II. Confidentiality

• The recipient must keep confidential the identity of any individual who has made a report or complaint of sex discrimination or sexual harassment, or has been identified as the perpetrator or respondent to any such report or complaint, or is a witness to any complaint or investigation ...

• ... except as required to carry out the purposes of Title IX (including the conduct of any complaint resolution process), applicable law, or as permitted by FERPA.

• All information must be maintained in a secure manner.

• Do not over-promise confidentiality; due process and other considerations may require disclosure of information obtained through investigation.

• Notify complainant of the information that will be disclosed, to whom it will be disclosed, and why.

Ill. Conducting Interviews

• The investigator should develop a general investigation plan:

• Gather and review any relevant documents, policies, or other evidence.
• Determine where interviews will take place (neutral, private, convenient).
• Prepare pre-interview points; consider providing in writing.
• Determine order of interviews.
• Develop list of questions for each that will help you determine whether more likely than not that complaint is founded under Title IX and school policy.

• Points to review with complainant, respondent, and witnesses:

• Explain process;
• Expectation of honest cooperation, and result (if any) of refusal to honestly cooperate;
• Request or state expectation of confidentiality/discretion as appropriate;
• Explain policy on non-retaliation and how to report retaliation;
• Explain school's position on confidentiality.

• Consider reducing to writing and having complainant and respondent sign.

• Basic interview questions:

• Who committed the alleged acts?
• Who else was around?
• What exactly occurred or was said? Include details.
• When did it occur, and was it a one-time event, repeated event, ongoing?
• Where did it occur?
• How did you react? How did it affect you?
• Are there other individuals who might have relevant information?
• Did you tell anyone about it?
• Ask for any available evidence (including social media content).
• Probe for hidden agendas.

• Other interview tips:

• Consider personality, tone, and psychological dynamics.
• Focus on facts, avoid spending too much time discussing "why?" questions.
• Avoid prejudging evidence.
• Consider all possibilities.
• Be an active listener.
• Take notes or record.
• Control emotions, be investigative rather than an advocate.

• Obtaining witness statements

• Written in first person.
• Focus on facts, not conclusions (may include how the incident affected the individual).
• If the investigator writes the statement for the witness, get confirmation of accuracy.
• Consider having it notarized or including statement "based upon my personal knowledge, the above facts are true and correct."

• Handling Evidence

• Beware "chain of custody" issues.
• Maintain investigation file containing:

• Investigator's notes (running record of actions taken, interviews conducted).

• Written statements.

• Paper and electronic records.

• Photographs, video, and audio recording.

• Any other evidence received, both inculpatory and exculpatory.

IV. Making Credibility Determinations

• Avoid making credibility determinations based on an individual's gender, sexual orientation, gender identity, or other protected characteristic.

• Avoid making credibility determinations based on an individual's status as a complainant, respondent, or witness.

V. Standard of Proof

• Judicial standards of proof:

• Beyond a reasonable doubt (used in criminal cases)
• Clear and convincing evidence (highly likely)
• Preponderance of the evidence (more likely than not) - used in:

• civil cases.

• discrimination and civil rights cases.

• A preponderance of the evidence exists when 50.1% of the evidence supports the allegation(s) in the complaint.

• A preponderance is not based on the amount of evidence, but based on the credibility determinations and weight given to the evidence by the investigator.

• Either preponderance or clear and convincing is acceptable under Title IX as long as:

• Same standard is applied to all complaints of sex discrimination or sexual harassment;
• Same standard applies to complaints against students as against employees.

VI. Relevance

• What is "relevant evidence"?

• Evidence that is of consequence to the outcome of the investigation;

• Evidence that makes any fact more or less probable than it would be without the evidence.

• Relevance does not exist in a vacuum - the relevance of any particular piece of evidence is determined in relation to what is required to make a determination regarding responsibility.

• Determining relevance is different that determining how much weight to give the evidence

• Irrelevant evidence: Exclude from consideration
• Relevant: Include for consideration

• Determine how much weight to be given compared to other evidence - reliability

• Note: Questions of a complainant's prior sexual behavior or sexual predisposition are not relevant

• except to the limited extent they are offered to prove that someone other than respondent committed the conduct, or as related to specific incidents between complainant and respondent to prove consent.

VII. The Written Report

• The Investigator must ask questions and sort through evidence, both inculpatory and exculpatory, to produce a summary of relevant evidence.

• After conducting all interviews and receiving all evidence, but prior to completion of the investigative report, each party must be provided with copies of any evidence directly related to the allegations in the complaint

• Each party must have 10 days to submit a written response to the investigator
• The investigator must "consider" written responses prior to completing investigative report.

• Investigative report must "fairly summarize relevant evidence".

• Final investigative report must be provided to each party and the party's advisor, if any, at least 10 days prior to the decision-maker making a determination regarding responsibility.

• Parties must be given an opportunity to review and provide written response to investigative report.

• Be aware of new record-keeping requirements!

• Investigation materials must be maintained for seven years.

IX. Bias and Impartiality

• The Investigator must be unbiased and impartial

• Bias= prejudice in favor of or against one person or group compared with another

• Opposites of bias = fair, objective

• An Investigator is not on anyone's "side"

• Your goal is to help the decision-maker reach a determination of responsibility based on reliable, relevant evidence;
• Your goal is not to achieve any particular outcome;
• Avoid becoming emotionally invested or slipping into advocacy - this is not your role.

• Conflicts of interest

• A conflict of interest exists when the Investigator has a personal or professional interest in a case that prevents them from discharging their duties in a fair, neutral, and impartial manner;
• Conflicts of interest may arise due to Investigator's relationship to a party or witness;
• Where the Investigator has a stake in the outcome of the process (e.g., personnel evaluations based on increasing or reducing number of founded complaints);
• Other circumstances that negatively affect the Investigator's neutrality.
• Must avoid the intentional or unintentional injection of sex-based biases and stereotypes into Title IX proceedings.

• Examples of bias:

• Assuming that complainants or respondents generally are more likely to tell the truth
• Assuming that respondents are presumptively responsible for alleged sexual misconduct
• Assuming that a victim was "asking for it" based on what they wore, how much they had to drink, how they were dancing, etc ...

• An unbiased process:

• Gives parties equal opportunities for participation at every stage;
• Presumes innocence until a determination regarding responsibility is made;

• Results in a determination made based on an objective review of all relevant, available evidence

• An unbiased investigation provides both parties with equivalent rights to:

• Written notices;
• Introduce witnesses and evidence for your consideration;
• Review and respond to the other party's evidence; and
• Credibility determinations based on specific factors, not a party's status as complainant or respondent.

• Next Step: Determination Of Responsibility

• Determination cannot be made by the Investigator or Title IX Coordinator.