2024 Title IX Training
Training for Investigators, Decisionmakers, & Other Persons
Responsible for Implementing the Grievance Procedures or with the Authority to Modify or Terminate Supportive Measures
• Overview of 2024 Rule
• TIX Discrimination
• Employee Reporting & Response Obligations
• TIX Grievance Procedures
• Investigation Process & Evidence Gathering
• Decisionmaker
• Informal Resolution
• TIX Coordinator
2024 Rule
• Effective 8/1/24
• Applies to conduct that occurred after 8/1/24
• If a complaint is made after 8/1/24, but the allegations indicate that the conduct occurred prior to 8/1/24, the former procedures apply
• Adds definition of “sex-based harassment”
• Provides and clarifies definitions of various terms related to the School’s obligation to address sex discrimination
• Clarifies the required response to alleged sex discrimination
• Modifies the grievance procedures
• Changes training requirements
Changes to Title IX Training Requirements
• ALL Employees (annually & at the time of hire) must receive training that addresses:
(1) District’s obligation to address sex-based discrimination;
(2) Scope of conduct that constitutes sex-based discrimination; and
(3) District’s reporting requirements for employees.
• Investigators, decisionmakers, & other persons responsible for implementing the grievance procedures or with the authority to modify or terminate supportive measures must receive training that addresses:
(1) Reporting obligations under 34 C.F.R. 106.44;
(2) Grievance procedures required by 34 C.F.R 106.45;
(3) How to serve impartially, including avoiding prejudgment of facts at issue, conflict of interest, and bias; and
(4) Meaning and application of the term “relevant” in relation to questions & evidence, and types of evidence that are impermissible regardless of relevance under 106.45
• Facilitators of informal resolution process must receive training that addresses:
(1) Rules & practices of the informal resolution process; and
(2) How to serve impartially, including by avoiding conflict of interest and bias.
• Title IX Coordinator must receive training that addresses:
(1) Their specific responsibilities;
(2) Recordkeeping system requirements
Who is Who?
• Investigator
• Gathers sufficient evidence to determine whether sex discrimination occurred
• Reviews evidence for relevance/impermissibility
• Provides parties a reasonable opportunity to response to evidence
• Takes reasonable steps to prevent unauthorized disclosure of evidence/information
• Decisionmaker
• Determines whether TIX Sex Discrimination occurred
• Provides written notice and rationale of the determination
• Notifies the parties of the procedures and bases available for an appeal
• Permitted to question parties and witnesses to assess credibility and relevancy
• Facilitator
• Facilitates the informal resolution process, if used
• Cannot be the same person as the investigator/decisionmaker in the grievance process.
• TIX Coordinator
• Coordinates compliance with the District’s TIX responsibilities
TIX creates an obligation for Schools to promptly and effectively prevent sex discrimination and ensure equal access to its education programs or activities.
“No person in the United State shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance.”
34 C.F.R. 106.31(a)
Defining Discrimination
Disparate Treatment
• Treating a person unfairly because of their status or perceived state in a protected group
Disparate Impact
• A policy appears neutral but has an adverse impact on a protected group
Harassment
• Harassment based on a protected status/characteris tic
Where Might Title IX Sex Discriminati on Occur?
• Comparable facilities
• Access to schools and classes
• Extracurricular activities
• Athletics
• Student Discipline
• When conduct is subject to the school’s disciplinary authority
• Under the 2024 Rule, sex-based hostile environment claims must be addressed even when some conduct alleged to contribute to the hostile environment occurred outside the activity/program or outside the U.S.
34 C.F.R. 106.10
• Sex Stereotypes
• Sex Characteristics
• Pregnancy or Related Conditions
• Sexual Orientation
• Gender Identity
• Sex-Based Harassment
Pregnancy or Related Conditions
Pregnancy, childbirth, termination of pregnancy, or lactation
Medical conditions related to pregnancy, childbirth, termination of pregnancy, or lactation
Recovery from pregnancy, childbirth, termination of pregnancy, or lactation, or related medical conditions
When a student or person with legal right to act on the student’s behalf notifies an EMPLOYEE of the student’s pregnancy or related condition, the EMPLOYEE shall share with that person, (1) the Title IX Coordinator’s contact information; and (2) that the Title IX Coordinator can coordinate to prevent sex discrimination and ensure equal access, unless the employee reasonably believes the TIX Coordinator has been notified.
Sex-Based Harassment
• Quid Pro Quo • Sexual Assault, Dating Violence, Stalking
• Hostile Environment Harassment
34 C.F.R. 106.2
Quid Pro Quo
When an employee, agent, or other authorized person explicitly or impliedly conditions the provision of aid, benefit, or service under an education program or activity upon another person’s participation in unwelcome sexual conduct.
Sexual Assault, Dating Violence, Stalking
• Sexual Assault
• Offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the FBI (20 U.S.C. 1092(f)(6)(A)(v))
• Dating Violence
• Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim; and
• Where the existence of such a relationship shall be determined based on a consideration of the following factors:
• The length of the relationship;
• The type of relationship; and
• The frequency of interaction between the persons involved in the relationship.
• Stalking
• Engaging in a course of conduct directed at a specific person that would cause a reasonable person to: fear for the person’s safety or the safety of others; or suffer substantial emotional distress
Domestic Violence (34 U.S.C 12291(a) (8))
Felony or misdemeanor crimes committed by a person who: (1) is a current or former spouse or intimate partner of the victim under the family or domestic violence laws of the jurisdiction of the recipient, or a person similarly situated to a spouse of the victim; (2) is cohabitating, or has cohabitated, with the victim as a spouse or intimate partner; (3) shares a child in common with the victim; or (4) commits acts against a youth or adult victim who is protected from those acts under the family or domestic violence laws of the jurisdiction
Hostile Environment Harassment
2020: Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the educational program or activity
2024: Unwelcome conduct that, based on the totality of circumstances, is subjectively and objectively, offensive and is so severe or pervasive that it effectively denies a person equal access to the educational program or activity
“Offensive”
• “Subjectively”
• Complainant was personally offended
• “Objectively”
• A reasonable person in Complainant’s situation would be offended.
“Severe or Pervasive”
• “Totality of the circumstances”
• The severity varies inversely with the pervasiveness (frequency) of the conduct
• Generally, a pattern of repeated behavior is required required
Hostile Environment Harassment
Is it a “Hostile Environment?”
• Fact specific inquiry
• To what degree did the conduct effect Complainant’s ability to access the program/activity?
• Did they miss school? Quit a team/extracurricular? Were they denied the ability to join a team/extracurricular?
• Consider the type, frequency, and duration of the conduct.
• The parties’ ages, roles, prior interactions, other factors
• Location/context of the conduct
• Other sex-based harassment in the program/activity?
• Are there others affected by the alleged conduct?
Employee Reporting & Response Obligations
Response Obligations
• A recipient with knowledge of conduct that reasonably may constitute sex discrimination in its education program or activity must respond promptly and effectively; and
• A recipient must also comply with 34 C.F.R 106.44 to address sex discrimination in its education program or activity.
• TIX Coordinator must monitor educational programs/activities for barriers to reporting conduct that may constitute sex discrimination under TIX and take steps to address those barriers.
TIX Reporting Requireme nts for ALL Employees
• Must report potential sex discrimination to the TIX Coordinator
• All non-confidential employees who have information about conduct that reasonably may constitute sex discrimination under TIX.
• Any employee who is not confidential and either (1) has authority to institute corrective measures, or (2) has responsibility for administrative, teaching, leadership or advising.
• May either report to the TIX Coordinator or provide the TIX Coordinator’s contact information
• All other employees who are not confidential employees
• Confidential employees must inform those who report sex discrimination: (1) that the employee is confidential; (2) how to contact the TIX Coordinator, (3) how to make a complaint, and (4) that the Title IX Coordinator may be able to offer supportive measures, as well as initiate an information resolution or investigation.
Who are Confidential Employees?
An employee of a recipient whose communications are privileged or confidential under Federal or State law. The employee's confidential status, for purposes of TIX, is only with respect to information received while the employee is functioning within the scope of their duties to which privilege or confidentiality applies;
An employee of a recipient whom the recipient has designated as confidential under TIX for the purpose of providing services to persons related to sex discrimination. If the employee also has a duty not associated with providing those services, the employee's confidential status is only with respect to information received about sex discrimination in connection with providing those services; or
An employee of a postsecondary institution who is conducting an Institutional Review Board-approved human-subjects research study designed to gather information about sex discrimination—but the employee's confidential status is only with respect to information received while conducting the study.
TIX Coordinator Response Requirements
• When notified of conduct that reasonably may constitute sex discrimination under TIX, the TIX Coordinator must take the following steps to end any alleged sex discrimination, prevent recurrence, and remedy its effects:
• Treat complainant & respondent equitably
• Offer/coordinate supportive measures, informal resolution, or the grievance procedures dependent on the situation
• Notify the complainant of the grievance procedure and informal resolution process, if available and appropriate
• If a Complaint is made, notify the Respondent of the grievance procedure and informal resolution process, if available and appropriate
• Initiate the grievance procedure or informal resolution process, if available, appropriate, and requested by all parties
In absence of a Complaint or withdrawal of a Complaint/termination of the informal resolution process, determine whether to initiate a complaint of sex discrimination
• Schools must prohibit retaliation, including peer retaliation, in its programs/activities.
• If a School has information of conduct that may reasonably constitute retaliation, it is obligated to comply with the response obligations of 34 C.F.R 106.44.
Retaliation Prohibited
Retaliation is defined as “intimidation, threats, coercion, or discrimination against any person by the recipient, a student, or an employee or other person authorized by the recipient to provide aid, benefit, or service under the recipient's education program or activity, for the purpose of interfering with any right or privilege secured by Title IX or this part, or because the person has reported information, made a complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part, including in an informal resolution process under § 106.44(k), in grievance procedures under § 106.45, and if applicable § 106.46, and in any other actions taken by a recipient under § 106.44(f) (1). Nothing in this definition or this part precludes a recipient from requiring an employee or other person authorized by a recipient to provide aid, benefit, or service under the recipient's education program or activity to participate as a witness in, or otherwise assist with, an investigation, proceeding, or hearing under this part.”
Grievance Process Requirements
• The grievance process must be fair and equitable, without bias or conflict of interest, and not reliant on stereotypes.
• The School’s process must:
• Presume that the respondent is not responsible until a determination is made
• Establish reasonably prompt timeframes for the major stages of the grievance procedures, including a process that allows for the reasonable extension of timeframes on a case-by-case basis for good cause
• Require reasonable steps to protect the privacy of parties and witnesses
• Require an objective evaluation of all evidence that is relevant
• Provide notice of allegations to both parties and notice of any TIX meetings of procedural process
Complainant & Complaint
• “Complainant” means (1) student/employee alleged to have been subjected to conduct that could constitute TIX sex discrimination; or (2) a person other than student/employee alleged to have been subjected to conduct that could be TIX sex discrimination and who was participating or attempting to participate in the District’s education program/activity at the time of the alleged discriminatory conduct.
• 2024 Rule expands this to include parents, guardians, or other authorized legal representatives
• “Complaint” may be an oral or written request that can be objectively understood as a request to investigate and decide about alleged discrimination under TIX.
• No longer required to make a formal, written complaint signed by the Complainant.
• Complaint must provide sufficient information to permit the district to make an informed district.
• Employee can make a Complaint, other than sex-based harassment.
• Complaint can be made to TIX Coordinator, Nondiscrimination Coordinator, Building Principal, Assistant Building Principal, Dean of Students, a Complaint Manager, or any employee with whom the person is comfortable speaking.
• Even if the Complainant does not wish to proceed, the District may have an obligation to process the Complaint if the TIX Coordinator determines the alleged conduct is an imminent and serious threat to the health or safety of the Complainant or other person(s) or prevents the District from ensuring equal access based on sex to the program or activity.
Students with Disabilities
If complainant/respondent is a student with a disability, the TIX Coordinator must consult with member(s) of the student’s IEP team, as appropriate, to determine how to comply with the IDEA Act and Section 504 of the Rehabilitation Act in implementing supportive measures and throughout the grievance procedures.
When a Complaint is Made the TIX Coordinator
• Must offer and coordinate supportive measures, as appropriate, for the Complainant
• Analyze the allegations to determine if another or additional method of review/processing is appropriate
• Some conduct may not be TIX SexBased Discrimination, but it may still be subject to disciplinary action under other policies.
• Maintain confidentiality, to the greatest extent practicable
• Initiate an investigation, or appoint another qualified person(s) to do so, and make a determination regarding the Complaint
Supportive Measures
• Non-disciplinary, non-punitive measures designed to protect the safety of the parties or the educational environment and to provide support during the grievance procedures or the informal resolution process
• Offered as appropriate and as reasonably available, without fee or charge, to the complainant or respondent before or after the filing of a formal complaint or where no formal complaint filed
• Designed to restore or preserve access to District’s education program or activity, without unreasonably burdening the other party
• Must keep confidential
• Complainant/respondent must have an opportunity to seek modification or reversal of the decision to provide, deny, modify, or terminate supportive measures, which should be reviewed by an impartial employee
• Examples: counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus and other similar measures
Notice
Upon initiation of the TIX grievance procedures, the School must notify the parties of the following:
• School’s TIX grievance procedures and any informal resolution process;
• Sufficient information available at the time to allow the parties to respond to the allegations, including the identities of the parties involved in the incident(s), the conduct alleged to constitute sex discrimination, and the date(s) and location(s) of the alleged incident(s);
• Statement indicating that retaliation is prohibited; and
• Statement that the parties are entitled to an equal opportunity to access the relevant and not otherwise impermissible evidence or an accurate description of this evidence.
• If the School provides a description of the evidence: The parties are entitled to an equal opportunity to access the relevant and not otherwise impermissible evidence upon the request of any party.
• If, in the course of an investigation, School decides to investigate additional allegations of sex discrimination by the respondent toward the complainant that are not included in the notice provided, School will notify the parties of the additional allegations.
Complaint Dismissal
School may dismiss a complaint of sex discrimination, without the grievance procedures or informal resolution process, if:
• The School is unable to identify the respondent after taking reasonable steps to do so;
• The respondent is not participating in School’s education program or activity and is not employed by School;
• The Complainant voluntarily withdraws any or all of the allegations in the Complaint, the TIX Coordinator declines to initiate a complaint, and School determines that, without the Complainant’s withdrawn allegations, the conduct that remains alleged in the Complaint, if any, would not constitute sex discrimination under TIX even if proven; or School determines the conduct alleged in the Complaint, even if proven would not constitute sex discrimination under TIX.
Before dismissing the Complaint, the School will make reasonable efforts to clarify the allegations with the Complainant.
Complaint Dismissal
• Upon dismissal, School will promptly notify the complainant of the basis for the dismissal and notice of the opportunity to appeal the dismissal.
• If the dismissal occurs after the respondent has been notified of the allegations, then School will also notify the respondent of the dismissal and the basis for the dismissal promptly, as well as notice that the dismissal may be appealed.
• Dismissals may be appealed on the following bases:
• Procedural irregularity that would change the outcome;
• New evidence that would change the outcome and that was not reasonably available when the dismissal was made; and
• The TIX Coordinator, investigator, or decisionmaker had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that would change the outcome.
Investigation
Adequate, reliable, and impartial
Investigation & Evidence
• The burden is on the School—not on the parties—to gather sufficient evidence to determine whether sex discrimination occurred.
• The parties have an equal opportunity to present fact witnesses and other inculpatory/exculpatory evidence that is relevant and not otherwise impermissible.
• Investigator will review all evidence gathered through the investigation and determine what evidence is relevant and what evidence is impermissible regardless of relevance.
• The parties must have an equal opportunity to review relevant evidence that is not otherwise impermissible, or be provided an accurate description of the evidence.
• The parties should also have a reasonable opportunity to respond to the evidence.
• Investigator must take reasonable steps to prevent unauthorized disclosure of information/evidence gathering through the grievance procedures.
• Evidence gathering cannot violate other constitutional protections, such as freedom of speech, due process, or right against self-incrimination.
What is “Relevan t” Evidence ?
• Does the information relate to the allegations?
• Does the witness have personal knowledge of the facts?
• Does the version of event(s) corroborate the others?
• Is any contemporaneous documentation consistent with the statement(s)?
• Is there a motivation to be untruthful?
• Did the witness recall the details independently or require documentation to refresh their memory?
• Does the evidence aid in determining whether the alleged sex discrimination occurred?
Impermissible Evidence
The following types of evidence are impermissible, regardless of relevance:
• Evidence that is protected under a privilege recognized by Federal or State law or evidence provided to a confidential employee, unless the person to whom the privilege or confidentiality is owed has voluntarily waived the privilege or confidentiality;
• A party’s or witness’s records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the party or witness, unless School obtains that party’s or witness’s voluntary, written consent for use in its grievance procedures; and
• Evidence that relates to the complainant’s sexual interests or prior sexual conduct, unless evidence about the complainant’s prior sexual conduct is offered to prove that someone other than the respondent committed the alleged conduct or is evidence about specific incidents of the complainant’s prior sexual conduct with the respondent that is offered to prove consent to the alleged sex-based harassment.
The fact of prior consensual sexual conduct between the complainant and respondent does not by itself demonstrate or imply the complainant’s consent to the alleged sexbased harassment or preclude determination that sex-based harassment occurred.
Maintaining Impartiality
• Avoid reaching a conclusion until ALL witnesses are fully interviewed and relevant documents reviewed.
• If you decide not to interview a witness, document why.
• Respondent is presumed not responsible until a final determination is made.
• Avoid Conflict of Interest with either (1) complainant, (2) respondents; and/or (3) other parties allegedly involved.
Bias & Conflict of Interest
Bias
• Prejudice for or against a thing, person, or group compared with another
• Anchor bias (using an initial, singular piece of information to make a decision)
• Halo effect bias (positive inclination towards a person based on a perceived positive trait)
• Attribution bias (rationalizing one’s conduct based on prior interactions/observations)
Conflict of Interest
• A factor exists that may compromise, or appear to compromise, one’s judgment
• Typically fact-specific
• Pre-existing relationships
Assessin g Credibilit
• How does the witness’ account compare to others?
• What level of detail do they provide?
• Are there inconsistencies in the details/accounts?
• What questions can you ask to gather more detail?
• Is the recollection influenced by others? (i.e. – did they discuss the situation with others?)
Decisionmaker
Under the 2024 Rule, the Investigator and Decisionmaker can be the same person.
• The burden of proof is the preponderance of evidence standard, which means “more likely than not.”
• The standard of proof requires the decisionmaker to evaluate relevant and not otherwise impermissible evidence for its persuasiveness.
• If the decisionmaker is not persuaded under the applicable standard by the evidence that sex discrimination occurred, whatever the quantity of the evidence is, the decisionmaker will not determine that sex discrimination occurred.
• Notify the parties in writing of the determination whether sex discrimination occurred under Title IX including the rationale for such determination, and the procedures and permissible bases for the complainant and respondent to appeal, if applicable.
• Coordinate any necessary disciplinary sanctions, remediation efforts, and discuss any other steps the TIX Coordinator should undertake to ensure sex discrimination does not recur.
• Not impose discipline on a respondent for sex discrimination prohibited by Title IX unless there is a determination at the conclusion of the grievance procedures that the respondent engaged in prohibited sex discrimination.
• Comply with the grievance procedures before the imposition of any disciplinary sanctions against a respondent.
Did Sex Discrimination Occur?
Appeal
• The process for making an appeal is set forth in the District’s policies, and the notice of how to make an appeal is included with any final decision.
• Notify the parties of any appeal, including notice of the allegations, if notice was not previously provided to the respondent.
• The appeal procedures are equally available to both parties.
• The Decisionmaker for the appeal should be trained on TIX regulations.
• The parties should have a reasonable and equal opportunity to make a statement in support of, or challenging, the outcome.
• Notify the parties of the result of the appeal and the rationale for the result.
• This appeal process will be, at a minimum, the same as School offers in all other comparable proceedings, including proceedings relating to other discrimination complaints.
Informal Resolution
Informal Resolution: Notice
Prior to initiating the informal resolution process, the parties must receive a notice that explains:
• The allegations
• The requirements of the informal resolution process
• That any party may withdraw from the informal resolution process prior to reaching a resolution, and to initiate/resume the grievance procedures
• That reaching an informal resolution would preclude the parties from initiating/resuming grievance procedures from the same allegations
• The potential terms that may be requested/offered in an informal resolution agreement, including notice that the resolution is binding only on the parties
• What information the District will maintain and whether and how the recipient may use such information in the grievance procedures, if initiated/resumed
Informal Resolution
• 2024 Rule: The Complainant need not file a formal Complaint before informal resolution is offered.
• District has discretion to determine when it is appropriate to offer an informal resolution.
• Facilitator cannot be the same person as the investigator/decisionmaker in the grievance process.
• Parties cannot be required to participate in informal resolution.
• Parties can withdraw from the informal resolution process.
• Informal resolution cannot be offered if there are allegations that an employee engaged in sex-based harassment of a student, or when the process would conflict with federal, state, or local law.
TIX Coordinator
TIX Coordinator responsibilities are interspersed throughout this presentation. The next two slides are specific responsibilities not yet discussed.
Initiating TIX Procedures Without a Complaint
• If no Complaint is filed, or it is withdrawn, or the informal resolution process is terminated, the TIX Coordinator may still decide to initiate a Complaint and the grievance procedures.
• This is a fact-specific determination that considers:
• Complainant’s request not to proceed with initiating a Complaint
• Complainant’s reasonable safety concerns regarding Complaint initiation
• Risk of further sex-based discrimination without a Complaint
• Severity of the alleged discrimination
• Age/relationship of parties
• Scope of the alleged discrimination, including if the alleged conduct indicates a pattern, or impacts multiple individuals
• Availability of evidence for the decisionmaker
• Whether the alleged conduct could be prevented from reoccurring without the grievance procedures
• Ultimately, the TIX Coordinator should consider if the alleged conduct presents an imminent and serious threat to the health or safety of the Complainant or others, or the alleged conduct prevents equal access on the basis of sex to education programs/activities.
Recordkeeping Requirements
• Complaints: all records documenting the informal resolution or grievance process and resulting outcome.
• Constructive knowledge: documentation of actions taken to comply with TIX once the TIX Coordinator had knowledge of conduct that may reasonably constitute sex discrimination.
• Training: All materials used for staff training and the TIX Coordinator