Title IX Regulations: K-12 Initial Compliance
Training

Jacqueline Litra

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Ask Questions

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WHY ARE WE HERE?

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Know the Rules

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Recognize Title IX Sexual Harassment

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But not just any action, the right action for the conduct at issue!

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Why is this so important?

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1 in 4 women experiences sexual assault before age 18

48% of U.S. students are subject to sexual harassment or assault at school before graduating high school

10% of children are targets of educator sexual misconduct before high school graduation

In 2010-2011, 36% of girls, 24% of boys and 30% of all students grades 7-12 experienced online sexual harassment

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According to a 2017 report from the Justice Department, only
23 percent of all sexual assaults are reported to the police.

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Harassment
and assault can have long lasting, detrimental effects on victims

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Effects on Individuals

Anger Stress

Poor performance in school

Mistrust	Fear Distraction                                            Lost

Acting out	ANXIETY

Opportunities Drop-out

Absenteeism	PTSD Suicide	DEPRESSION

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Effects on Teams

Decreased focus

Lost productivity

Withdrawal	Neglect

Malingering

Absenteeism

Turnover Lack of trust in leadership

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Unfair processes can have long lasting, detrimental effects on the parties

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Have you been involved in a Title IX complaint?

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Have you been involved with a student or employee issue involving unwanted conduct on the basis of sex?

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WHAT IS TITLE IX?

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Title IX

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Title IX Statute

(20 U.S.C. §§ 1681–1688)

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

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What falls under Title IX?

Recruitment, Admissions, and Counseling

Sex-Based Harassment

Single-Sex Education

Financial Assistance

Treatment of Pregnant & Parenting Students

Employment

Athletics

Discipline

Retaliation

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Title IX Regulations

(34 C.F.R. Part 106 – Amended as of 8/14/2020)

Prohibit discrimination on the basis of sex

Establish procedural requirements Policy + detailed grievance procedure Designation of Title IX coordinator(s) And many more requirements!

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When Must a School Respond to Sexual Harassment?

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Employment

It Depends Who [Well, Which Law] You Ask

• California Fair Employment & Housing Act (FEHA)

• Educ. Code § 200 et al. • Title VII
• Title IX

Students

• Educ. Code § 200 et al. • Title IX

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When must a school respond to Title IX sexual harassment?

A school with actual knowledge of [Title IX] sexual harassment in an education program or activity against a person in the United States must respond as required under the new Title IX rules….

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Notice

ACTUAL knowledge

To Title IX Coordinator or “official with authority” (all K-12 employees)

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Actual Knowledge

1.Sense 2.Report

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Official with Authority

Title IX Coordinator

Any other officials who have been given authority to institute corrective measures by the school district

K-12: All employees

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Reporting Sexual Harassment: Who, How and When?

Any person may report sex discrimination, including sexual harassment, regardless of whether the person is the alleged victim of the reported conduct

Reports can be made by mail, by telephone, or by email, using the contact information listed for the Title IX Coordinator

Or by any means that receiving the person’s

results in the Title IX Coordinator report

Such a report may be made at any time, including during non-business hours, by using the telephone number or electronic mail address, or by mail to the office address listed for the Title IX Coordinator

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Key Word: “Allegation”

Once a school has notice of an allegation that, if true, would constitute sexual harassment, it must respond

“Well, we didn’t believe there was enough evidence it happened” does not get you past your responsibility to use your Title IX procedures

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Issue Spotting

Order of protection: Principal served with order of protection requiring 17 year old male student to have no contact with 16 year old female student due to alleged sexual assault off campus.

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Does the Principal have actual knowledge/notice of sexual harassment?

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What is Sexual Harassment?

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Employment

It Depends Who [Well, Which Law] You Ask

• California Fair Employment & Housing Act (FEHA)

• Educ. Code § 212.5 • Title VII
• Title IX

Students

• Educ. Code § 212.5 • Title IX

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Title IX Sexual Harassment

• Employee quid pro quo

• Hostile (newly

environment defined)

• Clery/VAWA “Big 4”

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Title IX Quid Pro Quo

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

New: Only an employee (not a volunteer, another student, etc.)

Codified: Severity and harm presumed

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VAWA “Big Four”

Sexual Assault 20 U.S.C. 1092(f)(6)(A)(v)

Domestic Violence 34 U.S.C. 12291(a)(8)

Dating Violence 34 U.S.C. 12291(a)(10)

Stalking 34 U.S.C. 12291(a)(30)

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Title IX Hostile Environment

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Title IX – What is Sexual Harassment?

Old Definition	New Definition (8/14)

Unwelcome conduct determined by a reasonable person to be severe, pervasive or persistent as to interfere with or limit a student’s ability to participate in or benefit from school services, activities, or opportunities

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

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Unwelcome Conduct

 Not Consent

 Not Participation  Not Silence
 Age Matters

 Intoxication Matters  Culture Matters
 Ability Matters

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What is severe?

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Severe

Something more than just juvenile behavior among students

Something more than behavior that is even antagonistic, non-consensual, and crass

Simple acts of teasing and name calling are not enough, even when based on sex

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What is pervasive?

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Pervasive

Systemic, widespread

Multiple incidents—one incident is likely not enough

Reconciles the general principle that Title IX prohibits indifference to known harassment with the practical realities of responding to misconduct

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What is objectively offensive?

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Objectively Offensive

Constellation of surrounding circumstances, expectations, and relationships

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Access Denied

Hostile environment - harm is not presumed

Effectively denies a person EQUAL access to the school’s education program or activity

“So undermines and detracts from the victims’ educational experience…”

Specific manifestation of trauma not require

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Hostile Environment Factors

Context, Nature, Scope, Frequency, Duration, and Location of the Incidents

Identity, Number, Ages, and Relationships of the Persons involved

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What about….

casual or isolated comments or conduct?

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Practical Analysis

Is this severe, pervasive, and objectively offensive?

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A student makes multiple insensitive sexual jokes to another student

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Teacher repeatedly tells a student they look good after losing weight

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One student grabs another student’s breasts during a soccer game

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A student “uses tongue” during an acting scene without the other student’s permission

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A group of students make a Facebook post rating students by attractiveness and share with school community

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A teacher offers a student to trade a back rub for a good grade on a test

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Teacher makes a sexually inappropriate comment to a student in class

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Students incessantly mock a female student for not wearing makeup, saying she looks “like a boy”

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A student sends a completely nude picture to the student’s significant other (another student)

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The student who received the photo forwards it to 20 classmates

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Title IX Sexual Harassment Must Be “In a Program or Activity”

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Program or Activity: Any location, event, or circumstance over which the school exhibits substantial control over both the alleged harasser and the “context” in which the harassment occurred

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Online & Off Campus Substantial control over the context?

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Schools need only address sex discrimination occurring against a person in the United States under Title IX

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HOW MUST YOU RESPOND?

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Board Policies on Harassment

Option 1: AR 4119.12/4219.12/4319.12 (Personnel) & AR 5145.71 (Students) Title IX Sexual Harassment Complaint Procedures (for TIX Sexual Harassment only)

Option 2: AR 4119.11/4219.11/4319.11 (Personnel) & AR 5145.7 Sexual Harassment (for any other violation of law, including other types of “sexual harassment”)

Option 3: Other Board policies prohibiting conduct, e.g., bullying, nondiscrimination

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BUT ALWAYS consider whether another non-”sexual harassment” policy or procedure applies

NEW Title IX Sexual Harassment AR

Conduct that, if true, would be “Title IX Sexual Harassment” REMEMBER: If you find no responsibility, consider whether another sexual harassment policy should be used

Proceed under another policy

Dismissal under Title IX Process OR
Conduct that, even if true, would not “Title IX Sexual Harassment”

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Adequate Response

1. Initial Response / Supportive Measures

2. Informal
Resolution	3. Investigation (Voluntary)

4. Decision	5. Appeal

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Sexual Harassment Allegations

Initial Response / Supportive Measures

Dismissal

No Formal Complaint

Formal Complaint – Notice of Allegations

Informal Resolution

Investigation

Determination

Appeal

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Initial Response/Supportive Measures

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Title IX Coordinator

Must be called Title IX Coordinator

One person with oversight over all Title IX programs

Can have other responsibilities (e.g., nondiscrimination, ADA)

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NOT a third party who reports Title IX Sexual Harassment perpetrated against someone else
	NOT the Title IX Coordinator,even if the TIXC “signs” a Formal Complaint

Terminology

Apply to parties in both reports and Formal Complaints of sexual harassment

Title IX Complainant: A person who is alleged to be the victim of conduct that could constitute sexual harassment

Title IX Respondent: A person who has been reported to be the perpetrator of conduct that could constitute sexual harassment

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Title IX Coordinator or designee must promptly, even if no Formal Complaint is filed:
•	Contact the Title IX Complainant to discuss the availability of “supportive measures”
•	Consider the Title IX Complainant’s wishes with respect to supportive measures
•	Inform the Title IX Complainant of the availability of supportive measures with or without the filing of a formal complaint
•	Explain the process for filing a Formal Complaint

New: Initial Response

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Defined as a document
signed by the Title IX
sexual harassment
requesting that the
allegation of sexual

Formal Complaint

filed by a complainant or

Coordinator alleging

against a respondent and

school investigate the

harassment. 34 C.F.R. §

106.30(a).
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Confidentiality

Not required Complainant

to maintain anonymity of after formal complaint is filed

Both parties must known) in written

be identified (if identity is notice of allegations

Using party initials or withholding Complainant’s identity is insufficient

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Signing a Complaint

Factors to consider

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Non-punitive,
offered as appropriate
complainant or a
formal complaint, or
been filed (34.
Should be designed
equal access to the
activity without

Supportive Measures

What Changed?

OLD TERM (OCR Guidance)
 Used terms such as “interim measures” or “interim steps” to describe measures to help a complainant maintain equal educational access

 Implied only available during pendency of investigation, did not mandate offering them, not clear if could be punitive or disciplinary, and did not clarify if available to respondents

NEW TERM (Final Rule)

 individualized services,

and without charge to a

respondent before
after the filling of aor

where no complaint has

C.F.R.106.30(a)).

 to restore or preserve

education program or

“unreasonably”
burdening the other

party
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Examples of Supportive Measures

 Counseling
 Course modifications  Schedule changes
 Increased monitoring or supervision
A supportive measure that completely removes a respondent from an activity would likely be considered punitive, except for “emergency removals” for students and “administrative leaves” for employees

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Emergency Removals / Admin Leave

Immediate emergency removal

(34 C.F.R. 106.44(c))

Employee administrative leave

(34 C.F.R. 106.44(c))

o Based on an individualized safety and risk analysis

o Necessary to protect a student or other individual from immediate threat to physical health or safety

o Notice, opportunity to challenge provided “immediately” provided the removal

o Consider other laws, e.g., “change in placement” under IDEA

 Not prohibited
Consider state law, board policy, handbooks and bargaining

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Dismissals

Mandatory if conduct alleged:	Permissive if:

 Not sexual harassment, even if true

 Did not occur in the school’s program or activity

 Did not occur in the United states

 Complainant requests to withdraw in writing  Respondent’s enrollment or employment ends
 Specific circumstances prevent school from gathering evidence sufficient to reach a determination (e.g., passage of time, lack of

**can still address under non-Title IX policy	cooperation by complainant)

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Informal Resolution (Voluntary)

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INFORMAL RESOLUTION IS NOT PERMITTED UNDER THE FOLLOWING CONDITIONS:
	INFORMAL RESOLUTION MAY MOVE FORWARD UNDER THE FOLLOWING CONDITIONS:
	
•	Cannot condition enrollment, employment, or any right on waiver of right to investigation and adjudication of formal complaints under grievance procedure
•	Cannot require use of informal resolution process
•	Cannot offer informal resolution process until formal complaint is filed
•	Not available to resolve allegations that employee sexually harassed a student
	•	Any time prior to reaching a determination, either party may request informal resolution
•	Requires voluntary, written consent from both parties
•	Any party has a right to withdraw prior to agreement

Informal Resolution

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using
the Title IX

Informal Resolution Facilitators

We do not recommend

Coordinator or
investigator(s)sor

decisionmaker
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







Written Notice: 

To both parties In writing Allegations
Requirements of informal resolution process (including circumstances under which the party cannot resume a formal complaint arising from the allegations)

Resulting consequences of participating (e.g., records)

Required
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Investigation

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Formal Complaint Response 34 C.F.R. 106.45(b)

• Requires a number of specific steps for investigating
• Major shift from previous, more deferential stance toward specific policies and practices for complaint resolution

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	Written notice to the parties

			
	Choosing an investigator

Anatomy of an Investigation

Required elements of an investigation

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• Written notice to known parties “upon receipt of written complaint”
• In sufficient time to allow respondent to prepare a response before any initial interview
• Must include:
Notice of grievance process, including any informal resolution process
Notice of allegations, in sufficient detail to allow respondent to prepare a response (names of known parties, conduct alleged, date and location of conduct, if known)

More Steps: Written Notice

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• Must include:
Statement that respondent presumed not responsible and that responsibility determined at conclusion of grievance process
Notice of parties’ rights to have an attorney or non-attorney advisor and to inspect and review evidence
Notice of any provision in the code of conduct that prohibits knowingly making false statements or providing false evidence during the grievance process
• Must be supplemented if new allegations opened for investigation

More Steps: Written Notice

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Required
Informal resolution notice

Notice at start of investigation

Dismissal notice Interview notices Report

 Written Notice:



Notice which proposed questions not asked on cross and why

Written determination and notice of appeal rights

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



Recommended
Written Notice: 

Document information to complainant at initial meeting, including supportive measures requested/provided

Document that review of evidence provided to both parties

Document opportunity to ask questions, answers, follow-up questions, etc.

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Who should investigate?

Can be the Title IX Coordinator… But should it?

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Who should investigate?

Trained Unbiased
No actual or perceived conflict of interest Check “institutional interests”
Presumption that Respondent is not responsible

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Who should investigate?

No “one size fits all” approach May need to designate Consider the perception of bias
Your friendship or other relationship with the accused or their family

Your sex/gender identity

Your personal conflicts (even if just perceived) Personality conflicts

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Contents of an Investigation

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Investigation 34 C.F.R. 106.45(b)(5)

Burden of proof on school

Certain treatment records cannot be obtained without voluntary, written consent

No restriction of rights of parties to discuss allegations or gather or present evidence

Same opportunities for others present during interviews or related proceedings (e.g., attorney or non-attorney advisor)

Written notice to parties of date, time, participants, purpose, and location of each investigative interview with sufficient time to prepare

All evidence provided to parties and their advisors with 10 days to respond before report

Written investigative report “fairly summarizes the relevant evidence” provided to parties and advisors at least 10 days before hearing or other determination of responsibility

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Investigation Best Practices

 Investigation plan

 Follow steps in policies closely

 Coordinate with law enforcement as required by policy and District practice

 Remember that both complainants and respondents may be experiencing trauma and other strong emotions

 Consult with Title IX Coordinator and/or counsel as needed

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Interviewing Best Practices

 Explain your role as a neutral

 Open-ended questions followed by more tailored follow up

 Allow ample time, don’t interrupt or rush  Ask “Is there anything else?”
 Ask for other witnesses, evidence, incidents

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Notice to Parties in Interviews

What to expect about future contact (timing, updates, encourage follow-up to you)

Written copy of policies/procedures

Notify of retaliation rights – provide specific examples

No “Gag” order but can warn of retaliation risks

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First Amendment Rights

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Investigation Plans Aren’t Static

Reassess plan for investigation frequently

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Gathering Other Evidence

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Warning! Medical Records

Notice of allegations should not divulge either party’s medical information

Prohibited from accessing or using medical, psychological, or similar records in grievance process without a party’s (or parent’s) voluntary, written consent

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Opportunity to Review Evidence

 Before the investigatory report is completed, evidence relating to the allegations must be sent to each party and advisor and should include all evidence (including that which the school does not intend to rely upon and exculpatory and inculpatory evidence)

 Parties have 10 days to provide a written response

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Investigation Report Writing

Fairly summarizes the relevant evidence

Provide the report to the parties and their advisors, if any, for their review and written response, at least 10 days before a hearing or determination of responsibility

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Applicable policies and procedures

Investigation Report Should Include

Timeline of investigation

Description of allegations

Unbiased summary of evidence gathered, including interviews

Credibility determination(s)

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Decision

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Decisionmaker(s) (Complaint)

• Cannot be the Title IX Coordinator or the investigator(s)

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Determinations of Responsibility 34 C.F.R. 106.45(b)(6)

Live hearing with live cross by party advisors required for higher ed, not K-12

Hearings permitted for K-12, with each party allowed to submit written, relevant questions to be asked of another party or witness to the decisionmaker, who will provide each party with the answers and the opportunity for follow-up questions

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Relevance

Rape shield laws Treatment records
Legally privileged information Improper inference
Prior statements

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Rulings on Relevance in Written “Cross”

Provide reasoning for irrelevance Admit and consider all relevant evidence Exceptions
Sexual behavior (except in limited situations) Legal privilege
Treatment records

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The Decision

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Identify

Identify the allegations

Describe

Describe procedural steps taken

Cite

Cite potential policy violations

	

Fairly summarize all relevant evidence

Summarize

Provide
	
Provide statement of result, with rationale, for each allegation

Appeal

Appeal procedures

Written Determination

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Standard of Proof: Preponderance of the Evidence

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Remedies & Sanctions

• Disciplinary action against perpetrator • Counseling for perpetrator/victim
• Changes to services or policies

• Remedies for complainant and others • Etc.!!

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Appeal

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Appeal Process

Available to both parties

Appeal of dismissal or written determination Three bases for appeal
Procedural issue New Evidence
Bias or Conflict of Interest Must affect the outcome

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Appeal Process

Notify parties of appeal in writing Apply procedures equally for both parties
Provide equal opportunity to submit written statement

Issue written decision to both parties

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Decisionmaker(s) (Appeal)

Cannot be the Title IX Coordinator or the investigator(s) or the decisionmaker (complaint)

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Sexual Harassment Allegations

Initial Response / Supportive Measures

Dismissal

No Formal Complaint

Formal Complaint – Notice of Allegations

Informal Resolution

Investigation

Determination

Appeal

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Bias, Conflicts of Interest, and Other Fairness Concerns

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Bias, Conflict of Interest, Prejudgment

The Title IX Coordinator, investigator, decision-maker, or informal resolution facilitator must not have a conflict of interest or bias for or against Complainants or Respondents generally or for or against any individual Complainant or Respondent. And that they must not prejudge any matter before them.

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Bias

Prejudice for or against one person or group

An affinity or habitual attraction to something

The property of not being in balance

A particular point of view from which something is seen or presented
Wordhippo.com

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Conflict of Interest & Prejudgment

A conflict between the private interests and the official responsibilities of a person in a position of trust
Merriam-Webster.com

Prejudgment is a judgment made before the evidence has been presented
Wordhippo.com

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Recordkeeping

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Recordkeeping

Must maintain the following for 7 years:

 Sexual harassment investigation documents, including:  Determination regarding responsibility
 Recordings or transcripts of live hearing

 Disciplinary sanctions imposed on Respondent  Remedies provided to Complainant
 Appeal and result

 Informal resolution and result

 Actions taken in response to a report of sexual harassment

 Actions taken in response to a formal complaint of sexual harassment

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Recordkeeping

Responses to formal and informal complaints and actions taken in response should include:

 The basis for the school’s conclusion that its response was not deliberately indifferent

 Documentation that it has taken measures designed to restore or preserve equal access to the school’s education program or activity

 Supportive measures or if no supportive measures are provided, document the reasons why such a response was not clearly unreasonable in light of the known circumstances

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.

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© Franczek P.C. 2020. © Fagen Friedman & Fulfrost LLP 2020. These materials are not legal advice. These materials are subject to a LIMITED LICENSE AND COPYRIGHT. These materials are proprietary and are owned and copyrighted by Franczek P.C. and Fagen Friedman & Fulfrost LLP. As training materials used to train Title IX personnel, these materials must be posted publicly by any organization or entity that purchased training for its Title IX personnel using these materials on that organization or entity’s website or, if it has no website, must be made available by any such organization or entity for inspection and review at its offices. Accordingly, Franczek P.C. and Fagen Friedman & Fulfrost LLP have granted a LIMITED LICENSE to the organization or entity that lawfully purchased training using these materials (the “LICENSEE”) to post these materials on its website or otherwise make them available as required by 34 C.F.R. 106.45(B)(10). The LICENSEE and any party who in any way receives and/or uses these materials agree to accept all terms and conditions and to abide by all provisions of this LIMITED LICENSE. Only the LICENSEE may post these materials on its website, and the materials may be posted only for purposes of review/inspection by the public; they may not be displayed, posted, shared, published, or used for any other purpose. Franczek P.C. and Fagen Friedman & Fulfrost LLP do not authorize any other public display, sharing, posting, or publication of these materials by the LICENSEE or any other party and do not authorize any use whatsoever by any party other than the LICENSEE. No party, including the LICENSEE, is authorized to copy, adapt, or otherwise use these materials without explicit written permission from Franczek P.C. and Fagen Friedman & Fulfrost LLP. No party, including the LICENSEE, is authorized to remove this LIMITED LICENSE AND COPYRIGHT language from any version of these materials or any copy thereof. Should any party, including the LICENSEE, display, post, share, publish, or otherwise use these materials in any manner other than that authorized by this LIMITED LICENSE, Franczek P.C. and Fagen Friedman & Fulfrost LLP will exercise all available legal rights and seek all available legal remedies including, but not limited to, directing the party to immediately remove any improperly posted content, cease and desist any unauthorized use, and compensate Franczek P.C. and Fagen Friedman & Fulfrost LLP for any unauthorized use to the extent authorized by copyright and other law. These materials may not be used by any party, including the LICENSEE, for any commercial purpose unless expressly authorized in writing by Franczek P.C. and Fagen Friedman & Fulfrost LLP. No other rights are provided, and all other rights are reserved.

Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.

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