Back to Basics: A Title IX Refresher

Although the 2020 Title IX regulations are anything but “basic,” this article provides an overview of common investigatory mistakes.

Title IX Grievance Process Overview

Title IX prohibits sex-based harassment and discrimination in schools receiving federal financial assistance. Therefore, this broad prohibition applies to public elementary and secondary schools. The law protects students, employees, applicants for admission and employment, and other individuals from all forms of sex discrimination, including sexual harassment, in all of a school’s programs, services, and activities, including academics, counseling, employment, interscholastic athletics, and extracurricular activities.

Updated Title IX regulations took effect August 14, 2020 and significantly changed how schools must respond to sexual harassment allegations. A “grievance procedure” must be followed any time a formal complaint is filed. The regulations outline the grievance procedure in detail, and even seasoned Title IX Coordinators may forget one or more steps in the process. We strongly encourage all school administrators to review their school’s Title IX policy to minimize missteps in the complicated grievance procedure.

Initial Steps

The Title IX grievance procedure is triggered when a formal complaint is filed. The formal complaint may be filed by either the “Complainant” (i.e., the person who alleges sexual harassment) or the Title IX Coordinator. A parent may file a formal complaint on a student’s behalf. Once a formal complaint is filed, notice letters must be sent to both parties.

The school must appoint a Title IX Coordinator, an Investigator, a Decision Maker, and an Appeals Officer for every formal complaint. Each individual must be properly trained, and the Title IX Coordinator must be a school employee. In some cases, the Title IX Coordinator and the Investigator may be the same person, but the Decision Maker and Appeals Officer must always be different people. All individuals involved in the process must be impartial, unbiased, and not have a conflict of interest. Depending on the severity of the alleged conduct, schools may outsource certain roles to one or more qualified third parties. If your school has fewer than three individuals who have attended comprehensive Title IX training, we strongly recommend ensuring additional staff members are trained as soon as possible.

During the investigation, the “Respondent” (i.e., the person alleged to have committed sexual harassment) is presumed not responsible for the conduct. No disciplinary action may be taken until there is a determination of responsibility. This means that schools cannot discipline a student accused of sexual harassment until the Title IX grievance process has concluded, except in emergency circumstances. We often see students suspended as soon as sexual harass­ment allegations are raised. However, under the updated Title IX regulations, immediate suspension is usually prohibited.

The Title IX Coordinator must ensure that both the Complainant and Respondent are offered supportive measures during the investigation. Both parties are also entitled to have an “advisor” of their choice at their own expense.

Investigation

The Investigator must collect evidence, conduct witness interviews, and engage in any other necessary fact-finding activities. The Investigator must provide written notice in advance of any party’s interview.

Once all evidence has been collected, the Investigator must provide all evidence to both parties. The parties must have at least 10 calendar days to review the evidence and provide any written response. The Investigator must review the evidence and any re­sponses to the evidence and write a comprehensive investigation report that fairly summarizes all evidence. The Investigator then sends the final investi­gation report to the Decision Maker and to both parties. The parties must have at least 10 calendar days to re­view the investigation report.

Determination of Responsibility

The Decision Maker must provide each party the opportunity to submit written, relevant questions to the other party and to any witness. The Decision Maker must provide both parties the responses to any questions and allow each party the opportunity to submit limited follow-up questions. A question can only be excluded if: (1) it improperly seeks information about the Complainant’s prior sexual history, or (2) it is irrelevant. The Decision Maker must explain in writing the basis for excluding any question.

After the parties have had 10 calendar days to review the investigation report and adequate time to complete the question process, the Decision Maker must review the report, any responses to the report, the questions and answers, and any other evidence before issuing a written determination of responsibility.

The determination of responsibility should: (1) provide evidence-based rationales, (2) be clear and precise, (3) be nearly identical for both parties, and (4) be sent to both parties simultaneously. Usually, the determination of responsibility refers the parties to the Title IX Coordinator for supportive measures and remedies. Once the determination of responsibility is sent, disciplinary sanctions may be imposed.

Appeals

Both parties have the right to appeal the determi­nation of responsibility based on: (1) a procedural irregularity that affected the outcome of the matter (e.g., a material deviation from established proce­dures); (2) new evidence that was not reasonably avail­able at the time the determination of responsibility or dismissal was made that could affect the outcome of the matter; or (3) the Title IX Coordinator, Investigator(s), or Decision Maker(s) having a conflict of interest or bias for or against Complainants or Respondents generally or the individual parties that affected the outcome of the matter. Some policies permit additional reasons for an appeal. Ensure you are familiar with your school’s policies before entering the grievance process.

Confidentiality

To the extent possible, confidentiality must be maintained throughout the process. Both parties have the right, however, to see all evidence, including witness identities.

Final Thoughts

The Title IX grievance process under the 2020 regulations is very detailed, but ensures that the parties have the opportunity to participate, respond to evidence, and ask questions, if they choose. It does not, however, require that the Complainant or Respondent be present for each other’s interviews, and we discourage schools from doing so.

For more information about the Title IX process, schools may refer to their board policy (Policy 3118 for Thrun Policy Service subscribers). For an overview of the changes that were enacted on August 14, 2020, see Summary of Major Provisions of the Department of Education’s Title IX Final Rule, available at:

https://www2.ed.gov/about/offices/list/ocr/docs/titleix-summary.pdf

At this time, your school should have:

• adopted an updated Title IX policy;
• appointed a Title IX Coordinator who has com­pleted comprehensive Title IX training on or after August 14, 2020;
• provided comprehensive training on or after August 14, 2020, to additional staff members who can serve as investigators, decision mak­ers, and appeals officers; and
• provided awareness training to all staff to en­sure they understand mandatory reporting obligations.

If your school needs an updated policy, Title IX forms and sample letters, or comprehensive training, we strongly encourage you to contact a Thrun Law Firm Title IX attorney now – before a Title IX complaint is filed. Thrun Law Firm also has prepared a 34-minute awareness training video that can be used to educate all staff on their mandatory Title IX reporting obligations. You may contact a Thrun Law Firm Title IX attorney to purchase the video.

Failing to properly adhere to Title IX investigatory requirements may result in a reversal of a determina­tion upon appeal, a need to re-do part or all of the griev­ance process, OCR complaints, or potential civil liability.

Thrun Law Firm is hosting a virtual Title IX Comprehensive Training on February 8, 2022. To sign up, complete the attached form.

Thrun Law Firm’s monthly Title IX Lunch & Learn webinars will resume on Thursday, February 10, 2022, from 12:15 p.m. – 12:45 p.m., and occur the second Thursday of the month through June 2022. Join us in February as we discuss, provide practical guidance on, and answer questions about law enforcement involve­ment in Title IX investigations. This webinar is free to all retainer clients. Thrun clients can register one time to attend all five scheduled Lunch & Learn webinars. Click here to register:

https://thrunlaw.zoom.us/webinar/register/WN_D2B6KEBFTXGDoQAn0v441g