Updated Title IX Regulations Regarding Sexual Harassment Investigations
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The updated Title IX regulations go into effect on August 14, 2020. These regulations significantly change many of the procedures for performing investigations related to sexual harassment, which will impact every school district's policies, handbook, and established practice for handling these matters. Undoubtedly, school administrators will be working closely with legal counsel and require legal training to be ready to implement these changes, but here is a brief summary of the key points in the regulations (which are over 2000 pages in length):
Definition of Sexual Harassment:
Sexual harassment includes any three types of misconduct on the basis of sex:
● Any instance of quid pro quo harassment by a school's employee
● Any unwelcome conduct that a reasonable person would find so severe, pervasive, AND objectively offensive that it denies a person equal educational access
● Any instance of sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act
Schools now must balance Title IX enforcement with respect for free speech and academic freedom in schools. This can be a difficult balance to strike, and again will require proper training for all administrators.
Notice:
● K-12 schools must respond whenever any employee has notice of sexual harassment.
● When a formal complaint is filed, written notice must be sent to both the victim and complainant. Notice must also be given for investigative interviews, meetings, or hearings.
● Parties and their advisors must be sent evidence directly related to the allegations allowing 10 days for the parties to inspect, review, and respond to. Schools must send an investigative report that fairly summarizes relevant evidence, again, with the 10 day requirement to inspect, review, and respond to.
Response Obligations: Any person, including third parties, may now report sex discrimination, including sexual harassment to the Title IX Coordinator verbally or in written form. Schools must respond promptly to Title IX sexual harassment in a manner that is not deliberately indifferent, which means a response that is not clearly unreasonable in light of the known circumstances.
● Schools are required to offer supportive measures to the person alleged to be the victim.
● Supportive measures are individualized services reasonably available that are non-punitive, non-disciplinary, and not unreasonably burdensome to the other party which designed to ensure equal educational access, protect safety, or deter sexual harassment.
● The Title IX Coordinator must promptly get in contact with the victim to make an offer of supportive measures, whether or not the victim decides to proceed with filing a formal complaint, and must explain the process of filing a formal complaint.
● At this time, the respondent should also receive information from the school regarding the range, list, or possible remedies a school may provide a complainant and disciplinary sanctions a school may impose, following a finding of responsibility.
● Schools must investigate sexual harassment allegations in any formal complaint. Formal complaints are either filed by the complainant or signed by the Title IX Coordinator in situations where the victim does not wish to file a formal claim, but the Title IX Coordinator decides an investigation over the wishes of the complainant, and it is not clearly unreasonable in light of the known circumstances.
● At the time of filing the formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the school with which the formal complaint is filed.
● A formal complaint may be dismissed by a school if the complainant informs the Title IX Coordinator in writing that the complainant desires to withdraw the complaint or allegations therein, or if the respondent is no longer enrolled or employed by the school, or if specific circumstances prevent the school from gathering sufficient evidence to reach a determination. Schools must give parties written notice of a dismissal and the reasons for the dismissal.
Investigation Procedures/Personnel: A school's grievance procedure must:
● Outline whether the school has chosen to use the preponderance of the evidence standard or the clear and convincing evidence standard for all formal complaints of sexual harassment (including where employees and faculty are respondents).
● Treat complainants equitably by providing remedies any time a respondent is found responsible, but not imposing disciplinary sanctions without following the grievance process prescribed in the Final Rule.
● Have remedies that are designed to maintain the complainant's equal access to education and may include the same individualized services described in the Final Rule as supportive measures. Remedies need not be non-disciplinary or non-punitive and need not avoid burdening the respondent. Remedies have to be provided when a respondent is found responsible.
● Have time frames for conclusion of the grievance process should be reasonably prompt, as should be the time frames for appeals and informal resolutions. There may be allowances for short-term, good cause delays or extensions.
● Not use, rely on, or seek disclosure of information protected under a legally recognized privilege, unless the person holding the privilege has waived it.
● Ensure the burden of gathering evidence and burden of proof must remain on the school.
Title IX Personnel:
● Title IX Coordinator, Investigators, and Decision-makers are all separate positions and a person may not hold more than one of these positions. They must all be free from bias and conflicts of interest. School districts with a limited number of school administrators will have to carefully assess and carefully train on these various roles which cannot be intermingled.
● All Title IX personnel must be trained on the definition of sexual harassment in the Final Rule, the scope of the school's education program or activity, how to conduct an investigation and grievance process including hearings, appeals, and informal resolution processes, as applicable, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts, and bias.
● Decision-makers need training on issues of relevance, including rape shield laws and the presumption of not responsible until a determination is made. Evidentiary issues can be complicated and have impacts including subsequent litigation if not addressed correctly.
Updates to School Website and Forms: A school has an obligation to ensure access for reporting to the Title IX Coordinator.
● The school must notify students, employees, applicants for admission and employment, parents or legal guardians, and all unions, of the name and/or title, office address, email address, and telephone number of the Title IX Coordinator.
● A school also must prominently display the contact information for the Title IX Coordinator on their school website.
● Schools must post materials used to train Title IX personnel on their websites. Be aware of this requirement if you're using a third party for training: schools will need to have their permission to distribute their training.
**Miller, Tracy, Braun, Funk & Miller, Ltd. law clerk Ellen D. Lueking wrote the preceding article, under the supervision of attorneys from Miller, Tracy, Braun, Funk & Miller, Ltd.