Title IX CoordinatorTraining Part1of 3

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Title IX Coordinator Training July 2020

Christine Galdston, J.D., LL.M. Title IX Consultant Christine@T9Now.com www.T9NOW.com

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Organization &Content

01

• History & Context
• Conflicts of Interest, Bias & Impartiality
• Title IX Personnel • Key Terms
• Record-keeping

02

• Sexual Harassment
• Mandatory Response Obligations
• What to doWhen You Receive a Report/Complaint

03

• Investigation • Hearing
• Dismissals • Appeals
• Sanctions & Remedies

		
		Part 1

History & Evolution of Title IX Underlying Principles Supreme Court Framework
Overview of Major Provisions & Procedural Protections Training Requirements
Bias, Conflict of Interest & Impartiality Title IX Personnel
Key Terms & Definitions Record Keeping

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Title IX Adopted by legislative action

1972

Implementing Regulations addressed sex discrimination, but not sexual harassment

1975

Department began issuing guidance addressing sexual harassment

1997

Significant ED guidance released on issue of sexual harassment and sexual violence

2011–2017

Withdrawn Guidance:

2011 DCL 2014 Q&A 2017 Q&A

2017

Negotiated Rulemaking & Proposed Rule

2018–2019

Newly Revised Title IX Rules Effective 8/14/20

2020

FINALTITLE IX RULE MAJOR PROVISIONS

Notice Actual Knowledge

Designation of Coordinator & Reporting

Retalition Prohibied

Definition of Sexual Harassment & Jurisdiction

Mandatory Response Obligations

KeyTerms & Definitions

Grievance Process

Investigation	Hearings Cross-Examination

Standard of Evidence & Appeals

Informal Resolution

Record Keeping

Protect

Protect Due Process & Fundamental Fairness

Improve

Improve Integrity of the Grievance Process

Effectuate

Effectuate Purpose of the Law in PreventingSex Discrimination

		
		Supreme Court Framework

1. Sexual Harassment 2. Actual Knowledge
3. Deliberate Indifference

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		Three-Pronged Definition of Sexual Harassment

offensive it effectively denies a person equal educational access
1.	Unwelcome sexual conduct that is so severe and pervasive and objectively

2.	Quid Pro Quo

3.	Clery/VAWA Sex Offenses

*Quid Pro Quo and Clery prongs do not have to be severe, pervasive and obj
prohibited sexual harassment
offensive; a single incident falling within the scope of either could constituteectively

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		Actual Knowledge

•Notice of sexual harassment or allegations of sexual harassment •Made to the Title IX Coordinator
•Or to any school official who has the authority to institute corrective measures on behalf of the school

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		Deliberate Indifference

•Was the school’s response clearly unreasonable in light of the known circumstances?

•Did the school respond meaningfully to every report of alleged sexual harassment whether or not it triggered the formal
grievance process?

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		Deliberate Indifference

The school’s response: • Must be Prompt
• Must Include offering supportive measures to complainant

• Ensures the Title IX Coordinator contact each complainant to discuss supportive measures • Considers complainant’s wishes regarding supportive measures
• Informs the complainant of the availability of supportive measures with or without filing a formal complaint

• Explains the process for filing a formal complaint

• Treat the parties equitably (i.e. not identically, but equitably)

• Follows the grievance process before imposing any disciplinary sanctions on respondent • Effectively implements remedies designed to restore or preserve educational access

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CITATION

106.45(a)

106.45(b)(1)(i)-(x)

106.45(b)(2)

SUMMARY

School’streatment of parties may constitute discrimination

Grievance Process Requirements

Written Notice of Allegations to Both Parties

Procedural Protections 106.45

106.45(b)(3)-(b)(4)

106.45(b)(5)(i)-(vii)

106.45(b)(6)

106.45(b)(7)

106.45(b)(8)

Formal Complaints Must be Investigated, Dismissals, Consolidation

Investigation Requirements

Cross Examination Conducted byAdvisor

Independent/Neutral Decision-maker, Standard of Evidence Same, Written Determination

Appeals: Procedural Irregularities,New Evidence,Bias orConflict of Interest

106.45(b)(9)

106.45(b)(10)

Informal Resolution:Voluntary, Written Consent. Not Allowed for Employee Respondent

Record Keeping, Publication of Training Material

		
		Mandatory Training Requirements 106. 45(b)

Jurisdiction & Scope: Does Title IX Apply

On Title IX’s definition of “sexual harassment”

On the scope of the school’s education program or activity

On how to serve impartially, including by avoiding prejudgment of the facts at issue On how to avoid conflicts of interest and bias
Any materials used to train must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment.

On how to conduct an investigation and grievance process

Decision-makers must receive training on any technology to be used at a live hearing, and on issues of relevance of questions and evidence, including when questions and evidence about a complainant’s sexual predisposition or prior sexual behavior are not relevant

Investigators must receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence

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		Mandatory Training Requirements 106. 45(b)

& Scope: Does Title IX Apply
*ALL training materials must be made publicly available on school’s website.

*Training materials must be maintained for seven years.

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Title
	Responsibilities
	Training
	Status
	
Title IX Coordinator (multiple &/or deputies)
	Coordinate, Intake Reports & Complaints,T9 analysis, Initiate Formal Complaint, Implement Supportive Measures
	Sexual Harassment, Investigation & Grievance Procedure, Hearings, Appeals & Informal Resolution (as applicable); Impartiality, Relevance, Privilege
	Must be Employee
May NotServe as Decision-Maker
	
Investigator
	Conduct Fair, Objective and Impartial Investigation, Differentiate b/w Related & Relevant Evidence & Privilege
	Sexual Harassment; How toConduct an Investigation, Impartiality, Relevance, Privilege, Report-Writing
	Staff or External
May NotServe as Decision-Maker
	
Decision Makers
	Evaluate Evidence, Make &Write Decision, “Rule” on Relevancy during Cross-Examination
	Sexual Harassment, Hearing Process,Technology, Evidence/Relevancy
	Staff or External
Cannot Serve inAny Other Capacity
	
Advisor(s)
	QuestionOpposing Party & Witnesses
	None required
	Party provided Staff or External
	
Informal Resolution Facilitator
	Informal Resolution Processes
	Informal Resolution Processes
	Staff or External

		
		Title IX Personnel: Official with Authority(OWA)

•Described in 34 CFR 106.30 •Notice to OWA is Actual Knowledge
•OWA determination is fact specific, depending on circumstances unique to each school

•Training, ability or obligation to report does not equal OWA •School may designate OWA

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School “must designate and authorize at least one employee to coordinate its efforts to comply with its responsibilities” under Title IX

Offer & coordinate supportive measures

• “The Title IX Coordinatoris responsible for coordinating the effective implementation of supportive measures”

Intake reports and complaints

May investigate if can do so objectively & without bias

• ED cautions against conflict of interest

Threat & T9Applicability Assessments

“Responsible for effective implementation of any remedies”

		
		Title IX Coordinator Role 106.8

•Must be an employee with the specific job title “Title IX Coordinator”

•Must publish and disseminate this employees contact information with your policy

•Must have the requisite authority to fulfill their responsibilities in compliance with the law

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		Investigators, Decision-makers & Facilitators

•Rule prohibits “single-investigator model”

•Coordinator may serve conflict and bias-free *

as investigator as long as can do so note the Department cautions on this

•Schools may structure T9 team as best suits their needs otherwise, as long as they ensure objectivity and impartiality

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Complainant & Respondent

Actual Knowledge

Formal Complaint

Consent

Supportive Measures

Sexual Harassment

		
		Complainant & Respondent 106.30

•Parties to the complaint: alleged victim and alleged perpetrator of conduct that could constitute sexual harassment.

•Complainant: participating or attempting to participate in program or activity

•Respondent: enrolled or under recipient’s control

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		Formal Complaint 106.30

•A document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the recipient investigate the allegation.

•May be filed in person, by mail, by electronic mail, or by other methods identified by school.

•“document filed by a complainant” is either a document or electronic submission that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the one filing the formal complaint.

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Supportive Measures

Non-disciplinary, non-punitive individualizedservices offered as appropriate, as reasonably available,and without fee or charge to the complainant or respondent before or after the filing of a formal complaint or where no complainthas been filed.

Designed to restore or preserve equal access to the recipient’s education program or activity without unreasonably burdening the other party.

Obligated to offer (with or without a formal complaint)and to engage in an interactive discussion with complainant regarding their wishes.

Must be kept confidential to the extent possibleto allowimplementation.

		
		Supportive Measures 106.30

• Non-disciplinary, non-punitive
free of charge
• Individualized services that may be offered to the complainant or respondent

• That do not unreasonably burden the other party
educational environment or to deter sexual harassment
• May include services to protect the safety of all parties as well as the school’s

Schools must document the facts and circumstances the render the
• Must be kept confidential to the extent possible

supportive measures hey have implemented appropriate and must also
how this decision was not deliberately indifferent
• document rationale iftthey do not implement supportive measures explaining

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		Supportive Measures 106.30

•Must promptly contact the complainant to discuss the availability of supportive measures

•Must consider complainant’s wishes

•Must inform complainant of the availability of supportive measures with or without filing a complaint

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		Actual Knowledge 106.30(a)

•“Notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient
who has authority to institute corrective measures on behalf of the recipient”

•“Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge”

•“the mere ability or obligation” to report “or having been trained to do so” does not equal actual knowledge

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Consent

• Not Defined in Regulations

• Critical Contested Issue in ManyCases

• Affirmative Consent Required in Some States • California “Yes Means Yes”
• NewYork “Enough is Enough”

		
		Consent

•Must clearly define and consistently apply your definition

•The school carries the burden of collecting sufficient evidence to reach a final determination, not the parties

•Especially when using an affirmative consent standard, be mindful that you do not misuse it by requiring the respondent to
prove the existence of consent or likewise shift the burden to a complainant to prove the absence of consent

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Record Keeping

		
		Recordkeeping 106.45(b)(10)

• Seven Year Retention Period • Reports & Complaints
• Any Action Taken in Response

• Basis for Conclusions that Response Was Not Deliberately Indifferent • Supportive Measures
• Rationale If No Supportive Measures

• Other Measures to Restore or Preserve Equal Access • Dismissal Records
• Investigation Records, Determinations, Recording of Hearing • Record of Sanctions/Discipline or Remedies
• Appeals & Decision • Training Material
• Informal Resolution & Outcome

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		Record Keeping 106.45(b)(10)(ii)

•Schools need to create a record to demonstrate why and how their response and actions were not deliberately indifferent.

•Documentation of emergency removals and administrative leaves for employee respondents must also be maintained.

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		Re-Cap & Key Takeaways

•Definition of sexual harassment and scope of rule is significantly narrowed

•Supportive measures are emphasized and always required •Due process and fundamental fairness must be preserved
•Record keeping requirements include documentation that school’s response was not deliberately indifferent

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		Part 2 Preview

•Sexual Harassment Defined •Mandatory Response Obligations
•What to do When You Receive a Report/Complaint

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