12/8/20

Title IX Team Training: Introduction Disclaimers Title IX

§ KSB School Law represents only public schools and related entities (like Educational Service Units). §Prohibits discrimination “on the basis of sex” in • We DO NOT represent individual teachers, students, parents, or district education programs or activities that receive employees. § This presentation and these slides DO NOT constitute legal advice—they are for federal financial assistance. training purposes only. Any questions about your obligations or specific situations • 20 U.S.C. § 1681(a) should be discussed with your legal counsel. § Neither this presentation nor these slides shall be construed to create an attorney- §Title IX applies to the entire school district. client relationship between you and KSB School Law or between you and us. • 20 U.S.C. § 1687(2). § You should have no expectation of confidentiality or that anything that discussed is privileged. § Material discussed in this training is explicit.

© 2020 KSB School Law, PC, LLO 1 © 2020 KSB School Law, PC, LLO 2 © 2020 KSB School Law, PC, LLO 3

Title IX Over the Years Title IX Over the Years Title IX Over the Years

§Enacted in 1972. §Gebser v. Lago Vista Indep. Sch. Dist. (U.S. 1998) §Davis v. Monroe County Bd. of Educ. (U.S. 1999) • Damages for sexual harassment of a student by a • A private damages actions may be sustained §Franklin v. Gwinnett County Pub. Schs. (U.S. 1992) • An implied private right of action for money teacher can only be recovered where: against a school board in the case of student-on- damages could be sustained where a teacher –An official who has authority to institute corrective student harassment, BUT only where: measures on the district’s behalf allegedly sexually abused a student. –The District acts with deliberate indifference to known –Has actual notice of the teacher’s misconduct, and acts of harassment in its programs or activities; AND –Acts deliberately indifferent to such misconduct –The harassment is so severe, pervasive, AND objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.

© 2020 KSB School Law, PC, LLO 4 © 2020 KSB School Law, PC, LLO 5 © 2020 KSB School Law, PC, LLO 6

The New Regulations The New Regulations What hasn’t changed?

§Effective August 14, 2020 §Athletic opportunities for boys and girls §Focus on schools’ response to allegations of • Equal accommodation (opportunities) sexual harassment • Equal treatment (qualitative experiences) §Provide specific procedures and require specific • 3-part test from courts and OCR personnel • BUT not all alleged Title IX violations are subject to new procedures

© 2020 KSB School Law, PC, LLO 7 © 2020 KSB School Law, PC, LLO 8 © 2020 KSB School Law, PC, LLO 9

1 12/8/20

Responses Under the New What hasn’t changed? Regulations The TIX Training Game Plan

§General antidiscrimination and accommodation §Three Categories of Complaints/Allegations request issues, such as • Gender identity and sexual orientation • Sex discrimination NOT involving sexual –Courts: transgender students win harassment • Third-party misconduct • Unequal treatment allegations against the • Sex harassment WITHOUT formal complaint institution that are not sex harassment • Sex harassment WITH formal complaint

© 2020 KSB School Law, PC, LLO 10 © 2020 KSB School Law, PC, LLO 11

Title IX Team Training: Disclaimers School District No. 1776 Sexual Harassment

§ KSB School Law represents only public schools and related entities (like Educational Service Units). • We DO NOT represent individual teachers, students, parents, or district employees. § This presentation and these slides DO NOT constitute legal advice—they are for training purposes only. Any questions about your obligations or specific situations should be discussed with your legal counsel. § Neither this presentation nor these slides shall be construed to create an attorney- client relationship between you and KSB School Law or between you and us. § You should have no expectation of confidentiality or that anything that discussed is privileged. § Material discussed in this training is explicit.

13 14 15

Sexual Harassment Sexual Harassment Sexual Harassment

§ Quid Pro Quo § “Quid Pro Quo” – district employee conditioning the § Unwelcome conduct determined by a reasonable person to § “Severe, Pervasive, AND Objectively Offensive” provision of a district aid, benefit, or service on an be so severe, pervasive, and objectively offensive that it individual’s participation in unwelcome sexual conduct effectively denies a person equal access to the district’s § Sexual Assault education program or activity (Gebser/Davis) § Dating Violence § Domestic Violence § Stalking

16 17 18

2 12/8/20

Sexual Harassment Sexual Harassment Sexual Harassment

§ Unwelcome conduct determined by a reasonable person to § Unwelcome conduct determined by a reasonable person to § Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it be so severe, pervasive, and objectively offensive that it be so severe, pervasive, and objectively offensive that effectively denies a person equal access to the district’s effectively denies a person equal access to the district’s it effectively denies a person equal access to the district’s education program or activity (Gebser/Davis) education program or activity (Gebser/Davis) education program or activity (Gebser/Davis)

19 20 21

Sexual Harassment Sexual Harassment Sexual Harassment: Severe, Pervasive, and Objectively Offensive

§ Unwelcome conduct determined by a reasonable person to § Unwelcome conduct determined by a reasonable person to § Doe v. Univ. of Kentucky (6th Cir. 2020) be so severe, pervasive, and objectively offensive that be so severe, pervasive, AND objectively offensive that • Severe = something more than just juvenile behavior; it effectively denies a person equal access to the it effectively denies a person equal access to the • Pervasive = multiple incidents of harassment; and district’s education program or activity (Gebser/Davis) district’s education program or activity (Gebser/Davis) • Objectively offensive = behavior that would be offensive to a reasonable person under the circumstances, not merely offensive to the victim, personally or subjectively.

22 23 24

Sexual Harassment: Sexual Harassment: Sexual Harassment: Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive

§ Davis v. Monroe County Bd. of Educ. (U.S. 1999) § Davis v. Monroe County Bd. of Educ. (U.S. 1999) § Davis v. Monroe County Bd. of Educ. (U.S. 1999) • Fifth-grade classmates in elementary school • Feb. 1993: G.F. placed a door stop in his pants and acted in a • G.F.’s misconduct over five months was severe, pervasive, and • Dec. 1992: G.F. attempted to touch LaShonda’s breasts and genital sexually suggestive manner to LaShonda Davis during PE objectively offensive area • One week later, more harassing behavior – “I want to get in bed with you” • Apr. 1993: G.F. rubs his body against LaShonda in the school – “I want to feel your boobs.” hallway in what LaShonda considered sexually suggestive manner. • Jan. 1993: Similar conduct on two more occasions • May 1993: G.F is charged with and pleads guilty to sexual batter

25 26 27

3 12/8/20

Sexual Harassment: Sexual Harassment: Sexual Harassment: Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive

§ Gabrielle M. v. Park Forest-Chicago Heights (7th Cir. § Gabrielle M. v. Park Forest-Chicago Heights § Gabrielle M. v. Park Forest-Chicago Heights 2003) • Two days later, Jason again unzipped his pants. • School Psychologists Notes: • Kindergarten • Five days later, Jason and another classmate, Ashley, had their – It was “becoming apparent that these Kindergartners were not fully aware of hands down each others’ pants during story-time. the seriousness of their actions.” • Jason jumped on Gabrielle’s back at recess • Five children (including Jason and Gabrielle) meet with school • Jason leaned against Gabrielle with his hands on his crotch. psychologist and share that during the previous week they had • Jason unzipped his pants and showed other students his underwear kissed and jumped on top of each other at recess while the teacher’s back was turned.

28 29 30

Sexual Harassment: Sexual Harassment: Sexual Harassment: Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive

§ Gabrielle M. v. Park Forest-Chicago Heights § Bruning v. Carroll Cmty. Sch. Dist. (N.D. Iowa 2007) § Bruning v. Carroll Cmty. Sch. Dist. (N.D. Iowa 2007) • Court found that children were unaware of the sexual nature of • Middle School • Spat on their behavior. • Breasts and buttocks were grabbed on multiple occasions by • Hair pulled • The children were not engaging in “knowingly sexual acts.” Steven, Jerry, and Chris. • Scratched by staples – Detracts from the severity and offensiveness of their actions. • Laser pointers aimed at plaintiffs’ private areas • Had heads pulled down to the boys’ crotches • Gabrielle was not denied access to education • Kicked • Spitballs shot at plaintiffs on school bus – Grades remained steady. Absenteeism did not increase • Shocked with a shocking pen • Boys would put their legs between the girls crotches during lunch • Poked in their crotch areas with pens and pencils

31 32 33

Sexual Harassment: Sexual Harassment: Sexual Harassment: Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive

§ Bruning v. Carroll Cmty. Sch. Dist. (N.D. Iowa 2007) § Wolfe v. Fayettville Ark. Sch. Dist. (8th Cir. 2011) § Wolfe v. Fayettville Ark. Sch. Dist. (8th Cir. 2011) • Boys would look under lunch table to see between the plaintiffs’ • Between 6th and 10th grade, Wolfe was ridiculed by fellow students • 9th grade: Facebook page legs. on numerous occasions – “Every One That Hates Billy Wolfe” • Conduct occurred with some frequency over a period of several • Several times per week, pushing, shoving, name-calling, and being – Wolfe’s face photo-shopped onto a figure in a green fairy costume with the months, during two different grades falsely labeled as homosexual word “HOMOSEXUAL” written across it. • S, P, and OO • “Faggot,” “queer bait,” and “homo” • Graffitied highly offensive, homosexual accusations about Wolfe on • 7th grade: punched and had head slammed into window while riding bathroom walls and in classroom textbooks. the bus

34 35 36

4 12/8/20

Sexual Harassment: Sexual Harassment: Sexual Harassment: Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive

§ Wolfe v. Fayettville Ark. Sch. Dist. (8th Cir. 2011) § Wolfe v. Fayettville Ark. Sch. Dist. (8th Cir. 2011) § Wolfe v. Fayettville Ark. Sch. Dist. (8th Cir. 2011) • 10th grade: • School District did not deny incidents of harassment, BUT • Name-calling was not intended to attach Wolfe’s sexuality – Wolfe got into a fight with a classmate • Claimed that the motive underscoring the misconduct was not sex- – Was an angered response to Wolfe’s mistreatment of other students – Two days later, classmate jumped out of a car and punched Wolfe while Wolfe based • Classmates suggested that they accosted Wolfe b/c he had was walking home • Students and teachers explained that they did not perceive Wolfe previously bullied a friend of theirs suffering from cerebral palsy. as homosexual

37 38 39

Sexual Harassment: Sexual Harassment: Sexual Harassment: Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive

§ Wolfe v. Fayettville Ark. Sch. Dist. (8th Cir. 2011) § Wolfe v. Fayettville Ark. Sch. Dist. (8th Cir. 2011) § Carmichael v. Galbraith (5th Cir. 2014) • Case is TRIED to a jury • Name-calling, by itself, does not amount to sex-based harassment, • Jon Carmichael was a 13-yr old middle school student • Jury Verdict in favor of the School District even if the words are gender-specific, unless the underlying • Committed suicide after allegedly being bullied by his fellow • Wolfe challenged the jury instruction requiring that the harasser be motivation for the harassment is hostility toward the person’s students motivated by Wolfe’s sex gender (or failure to conform with gender stereotypes). • On “numerous occasions,” accosted by a group of boys in the locker • 8th Circuit Disagreed: room – Proof “of sex-based motivation is required for a Title IX deliberate indifference – Oftentimes having his underwear removed claim.”

40 41 42

Sexual Harassment: Sexual Harassment: Sexual Harassment: Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive

§ Carmichael v. Galbraith (5th Cir. 2014) § Carmichael v. Galbraith (5th Cir. 2014) § Carmichael v. Galbraith (5th Cir. 2014) • During the last incident, shortly before suicide: • Complaint alleged that harassment was based on gender or • Fifth Circuit Reversed – Members of the football team stripped Jon nude and tied him up gender-based stereotypes – District court ignored “multiple” instances of boys in locker room harassing – Placed Jon in a trashcan calling him “fag,” “queer,” and “homo” • District Court dismissed complaint Jon, including removing underwear – “The removal of a person's underwear without their consent on numerous – A number of students observed the behavior – Single instance of student-on-student harassment was not pervasive – Once student videotaped the attack and uploaded it to YouTube occasions plausibly constitutes pervasive harassment of a sexual character.”

43 44 45

5 12/8/20

Sexual Harassment: Sexual Harassment: Sexual Harassment: Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive

§ Carmichael v. Galbraith (5th Cir. 2014) § I.F. v. Lewisville Indep. Sch. Dist. (5th Cir. 2019) § I.F. v. Lewisville Indep. Sch. Dist. (5th Cir. 2019) • Fifth Circuit Reversed • HS freshman I.F. raped at an off-campus, private party • Assailant wore pants that he raped I.F. in, which had blood on them – Depending on the “‘constellation of surrounding circumstances, expectations, • Following Monday, classmates bully I.F. from intercourse, and stood on the lunch table and said, these are and relationships,’ uninvited contact with the private parts of either the – “Whore,” “Slut,” the pants that I took I.F.’s virginity in victim's or harasser's body has often been held to constitute sexual harassment under Title IX.” – Asked whether she had sex with multiple people • One student asked I.F. the race of the baby she would be having – “How did it feel to be f****d in every single hole of your body” – Series of incidents where Jon’s underwear was forcibly removed could constitute numerous acts of objectively offensive touching.

46 47 48

Sexual Harassment: Sexual Harassment: Sexual Harassment: Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive

§ I.F. v. Lewisville Indep. Sch. Dist. (5th Cir. 2019) § I.F. v. Lewisville Indep. Sch. Dist. (5th Cir. 2019) § Doe v. Dardanelle Sch. Dist. (8th Cir. 2019) • Multiple football players called I.F. a liar and told her she was going • Severe, Pervasive, and Objectively Offensive • Jane Doe claims R.C. sexually assaulted her twice: to ruin everything – October 2014. During kickball, • Online harassment; students commenting on I.F.’s alleged assault oJane is standing on second base. on Twitter and Instagram oR.C. runs into Jane, bumps Jane’s breast with upper • I.F. felt suicidal and depressed, began cutting herself, had arm, calls Jane a bitch. nightmares, and experienced panic attacks

49 50 51

Sexual Harassment: Sexual Harassment: Sexual Harassment: Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive

§ Doe v. Dardanelle Sch. Dist. (8th Cir. 2019) § Doe v. Dardanelle Sch. Dist. (8th Cir. 2019) § Examples of S, P, and OO: • Jane claims R.C. sexually assaulted her twice: • NOT severe, pervasive, and objectively offensive such that it • Each time female kindergarten student wears a dress to school, – October 2015. Seated next to each other while watching a movie with lights deprived Jane of access to education or benefits of the school. high school student on bus bullies kindergartner into lifting her off in Home Economics class. –Jane’s GPA increased in both her junior and skirt, pulling down her pants, and spreading her legs. R.C. reached up Jane’s shorts and touched outside of – Fitzgerald v. Barnstable Sch. Comm. (1st Cir. 2007) o senior years her “private parts.” oJane pushed R.C. away. –Jane graduated on time oR.C. attempted to force Jane to touch his groin. oJane pulled her arm away. oR.C. grabbed Jane’s breast over her shirt.

52 53 54

6 12/8/20

Sexual Harassment: Sexual Harassment: Sexual Harassment: Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive Severe, Pervasive, and Objectively Offensive

§ Examples of S, P, and OO: § Examples of NOT S, P, and OO: § Examples of NOT S, P, and OO: • Head soccer coach persistently and openly pried into and discussed • One incident of non-consensual kissing. • Two isolated instances—one student touching the plaintiff’s the sex lives of his players and made sexually charged comments, – Doe v. Miami Univ. (6th Cir. 2018) shoulder and another student touching the plaintiff’s breast—which creating a hostile environment in the women’s soccer program. • One incident of a male student briefly flicking the chest of female ceased immediately after they occurred. – Jennings v. Univ. of N.C. (4th Cir. 2007) complainant (and complainant kneeling him in the groin in – Adusumilli v. Ill. Inst. of Tech (7th Cir. 1999) response). – Sanchez v. Brawley Elem. Sch. Dist. (9th Cir. 2018)

55 56 57

Sexual Harassment: Sexual Harassment Consent Sexual Assault

§ Sexual Assault § Sex Offenses, Forcible § The willingness in fact for conduct to occur. • an offense classified as a forcible or nonforcible sex offense under • Any sexual act directed against another person, without the § An individual may be incapable of providing consent to some the uniform crime reporting system of the Federal Bureau of consent of the victim including instances where the victim is Investigation incapable of giving consent or all sexual conduct or activity. • E.g., Age, incapacity, disability, lack of information, or other circumstances.

58 59 60

Consent Sexual Harassment: Sexual Harassment: Sexual Assault, Sex Offenses Forcible Sexual Assault, Sex Offenses Forcible

§ Neither verbal nor physical resistance is required to § Rape (Except Statutory Rape) § Sodomy establish that an individual did not consent. • The carnal knowledge of a person, • Oral or anal sexual intercourse with another person § Consider the totality of the circumstances in determining • Without the consent of the victim, • Without the consent of the victim, whether there was consent for any specific conduct. – Including instances where the victim is incapable of giving consent because of – Including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical his/her age or because of his/her temporary or permanent mental or physical § Consent may be revoked or withdrawn at any time. incapacity. incapacity

61 62 63

7 12/8/20

Sexual Harassment: Sexual Harassment: Sexual Harassment: Sexual Assault, Sex Offenses Forcible Sexual Assault, Sex Offenses Forcible Sexual Assault, Sex Offenses Forcible

§ Sexual Assault With An Object § Fondling § Fondling? • To use an object or instrument to unlawfully penetrate, however • The touching of the private body parts of another person • Gabrielle M. v. Park Forest-Chicago Heights (7th Cir. 2003) slightly, the genital or anal opening of the body of another person • For the purpose of sexual gratification – Kindergartners touching classmates private parts • Without the consent of the victim • Without the consent of the victim – Unaware of sexual nature of conduct – Including instances where the victim is incapable of giving consent because of – Including instances where the victim is incapable of giving consent because of – Probably not for the purpose of sexual gratification his/her age or because of his/her temporary or permanent mental or physical his/her age or because of his/her temporary or permanent mental or physical – Probably not sexual assault incapacity incapacity

64 65 66

Sexual Harassment: Sexual Harassment: Sexual Harassment: Sexual Assault, Sex Offenses Forcible Sexual Assault Sexual Assault, Sex Offenses Non-Forcible

§ Fondling? § Sex Offenses, Non-Forcible (Except Prostitution Offenses) § Incest • Doe v. Dardanelle Sch. Dist. (8th Cir. 2019) • Unlawful, non-forcible sexual intercourse. • Non-Forcible sexual intercourse – High school setting • Between persons who are related to each other within the degrees – Reaching up girl’s shorts and touched outside of her “private parts.” wherein marriage is prohibited by law – Grabbing girl’s breast over her shirt. – Probably for purposes of sexual gratification – Probably sex assault – Notice different outcome from prior standard

67 68 69

Sexual Harassment: Sexual Harassment: Sexual Harassment: Sexual Assault, Sex Offenses Non-Forcible Dating Violence Domestic Violence

§ Statutory Rape § Violence committed by a person— § Includes felony or misdemeanor crimes of violence • Non-Forcible sexual intercourse with a person • who is or has been in a social relationship of a romantic or intimate committed by a • Who is under the statutory age of consent nature with the victim; and • Current or former spouse or intimate partner of the victim, • where the existence of such a relationship shall be determined • Person with whom the victim shares a child in common, based on a consideration of the following factors: • Person who is cohabitating with or has cohabitated with the victim – The length of the relationship. as a spouse or intimate partner, – The type of relationship. – The frequency of interaction between the persons involved in the relationship.

70 71 72

8 12/8/20

Sexual Harassment: Sexual Harassment: Title IX Team Training: Domestic Violence Stalking Overview of Timeline and Grievance Process

§ Includes felony or misdemeanor crimes of violence § Engaging in a course of conduct directed at a specific person committed by that would cause a reasonable person to— • A person similarly situated to a spouse of the victim under the • Fear for his or her safety or the safety of others; or domestic or family violence laws of the jurisdiction receiving grant • Suffer substantial emotional distress. monies, or • Any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction.

73 74 75

Disclaimers Overview of Grievance Process Ongoing Duties

§ KSB School Law represents only public schools and related entities (like Educational Informal Resolution § Administration of Title IX Program Service Units). • We DO NOT represent individual teachers, students, parents, or district • Policy Sex General Formal Investigation Decision Appeal • Notices employees. Harassment Responses Complaint § This presentation and these slides DO NOT constitute legal advice—they are for • Receiving Complaints • Actual • Supportive • Respondent • Min 10 Days • Min 10 days • Limited Grounds training purposes only. Any questions about your obligations or specific situations Knowledge Measures Presumed Not for Appeal § Training Responsible • Burden on • Allow Exchange should be discussed with your legal counsel. • Education • No Discipline District of Written • No Bias/ Program or Until Grievance • Notices from Questions (w/ Conflicts § Avoiding Conflicts of Interest and Bias § Neither this presentation nor these slides shall be construed to create an attorney- Activity Process is TixC • Parties Can some limits) Complete Inspect and • Parties Can client relationship between you and KSB School Law or between you and us. • Evaluate Review All Evid. • Legal Relevance Submit Written § Confidentiality • Emergency Dismissal of Statement § You should have no expectation of confidentiality or that anything that discussed is Removal? Complaint • Written • Written § Prohibiting Retaliation Response to Determination • Written Decision privileged. • Administrative • All members of Draft Report on Appeal Leave? Tix Team are • Determine/ § Material discussed in this training is explicit. trained Recommend § Special Education Considerations Consequences

76 77 78

Title IX Team Training: Disclaimers Welcome to School District 1776 A Bad Situation in School District No. 1776

§ KSB School Law represents only public schools and related entities (like Educational Service Units). • We DO NOT represent individual teachers, students, parents, or district employees. § This presentation and these slides DO NOT constitute legal advice—they are for training purposes only. Any questions about your obligations or specific situations should be discussed with your legal counsel. § Neither this presentation nor these slides shall be construed to create an attorney- client relationship between you and KSB School Law or between you and us. § You should have no expectation of confidentiality or that anything that discussed is privileged. § Material discussed in this training is explicit.

79 80 81

9 12/8/20

District Buildings Title IX Parties Title IX Parties

§Complainant §Respondent • An individual who is alleged to be the victim of • An individual who has been reported to be the conduct that could constitute sexual harassment perpetrator of conduct that could constitute • Must be an individual participating or attempting to sexual harassment participate in district’s programs at the time of • Recipient has discretion to dismiss a formal formal complaint complaint where the respondent is not –Formal complaint may be lodged by complainant (or enrolled or employed by the recipient Patriot Elementary Minuteman Middle Lincoln High parent/guardian) or Title IX Coordinator School School School – 34 CFR § 106.45(b)(3)(ii)

Title IX Roles Title IX Coordinator Title IX Coordinator (TixC)

§Title IX Coordinator § Each recipient must designate and authorize at least one employee to coordinate its efforts to comply with its §Investigator responsibilities under Title IX §Decision Maker § Responsible for: §Appellate Decision Maker • Overseeing Title IX compliance • Receiving formal complaints • Ensuring any remedies are carried out § May serve as investigator in grievance process § May not serve as decision-maker or appellate decision-maker Activities Director Dolley Madison

Who can serve as Title IX Core Responsibilities of Title IX Investigator Coordinator? Coordinators §Must be an “employee” 34 C.F.R. § 106.8(a) §Develop and maintain a working knowledge of Title §Should report directly to board or superintendent IX and relevant state laws. §Should be able to have input into policies §Monitor school district’s compliance with legal §Should be able to conduct fair and efficient requirements. investigations • Ensure school district has required policies and §Should be able to document investigations and procedures in place. other compliance efforts by the school • Conduct evaluations of school compliance. • Arrange for training for staff and students. §Should be invested in gender equality • Provide and update resources. • Ensure prompt and effective processing of complaints. Guidance Counselor Aaron Burr

10 12/8/20

Investigator Decision-Makers Decision-Maker

§New role for sex harassment only §Again, new role for sex harassment only §Responsible for investigation of formal complaint §Issues written determination in grievance procedure after receiving investigative report from investigator and §Must follow regulatory requirements in facilitate opportunity for parties to submit questions conducting investigation §Not required to be an employee §Not required to be an employee §May not be Title IX Coordinator, Investigator, and §May be Title IX Coordinator Appellate Decision-Maker

§May not be decision-maker or appellate decision- High School Elementary Middle School §Recommended that you align decision-maker role with Principal Thomas Principal Sally Principal John maker Jefferson Hemmings Adams similar roles in general disciplinary processes

Appellate Decision-Maker Appellate Decision-Maker Hypothetical

§ Alexander Hamilton is in his senior year at Lincoln High School. His favorite coach is §For sex harassment only: recipient must offer the assistant hockey coach, Ms. Abigail Adams. § Dolley Madison is the Activities Director and TixC and has arranged for all staff, both parties an appeal on specific bases including Coach Adams, to be trained in recognizing sex harassment. § Alex is dating Maria Reynolds and the pair is elected homecoming King and Queen. §For other Title IX issues: appellate decision- After the dance, Coach Adams hears rumors that ”something bad” happened maker is still a good idea between them in Alex’s truck in the parking lot after the dance. § Maria has Coach Adams for English, a class in which students are required to journal. §Appellate decision-maker not required to be an In her journal Maria writes that Alex forced her to have sex with him in his truck but employee she doesn’t mention where. §May not be Title IX Coordinator, Investigator, or Superintendent George Washington Decision-Maker 96

Title IX Team Training: Hypothetical Disclaimers Responding to ALL Allegations of Sex Harassment

§ Does Coach Adams have to report? § KSB School Law represents only public schools and related entities (like Educational • Can she pull Alex and Maria into her room to ask them what is going on? Service Units). • Can she call Alex’s parents? • We DO NOT represent individual teachers, students, parents, or district § If so, to whom? employees. § After getting the report, what does Dolley Madison do? § This presentation and these slides DO NOT constitute legal advice—they are for • Can she talk things over with Aaron Burr, the guidance counselor? training purposes only. Any questions about your obligations or specific situations • Can she talk things over with Thomas Jefferson, the high school principal? • Can she talk things over with George Washington, the superintendent? should be discussed with your legal counsel. § Neither this presentation nor these slides shall be construed to create an attorney- § If Dolley files a TIX complaint, who does what? • Burr – investigation client relationship between you and KSB School Law or between you and us. • Jefferson – wait for report § You should have no expectation of confidentiality or that anything that discussed is • Washi ngt on – wait for possible appeal privileged. § Material discussed in this training is explicit.

97 98 99

11 12/8/20

General Response to General Response to Overview of Grievance Process ALL Allegations of Sexual Harassment ALL Allegations of Sexual Harassment (with or without formal complaint) (with or without formal complaint)

Informal Resolution § If the district has: § District is deliberately indifferent only if its response to • actual knowledge sexual harassment is clearly unreasonable in light of the Sex General Formal Harassment Responses Complaint Investigation Decision Appeal • of sexual harassment known circumstances • in an education program or activity • against a person in the United States • Rejects the “known or reasonably should have known” standard § The district must respond imposed by rescinded guidance • promptly • in a manner that is not deliberately indifferent

100 101 102

Actual Knowledge Actual Knowledge Actual Knowledge

§ Notice of sexual harassment or allegations of sexual § Notice of sexual harassment or allegations of sexual § Actual knowledge will not be imputed to the district based harassment to: harassment to: solely on vicarious liability or constructive notice • Title IX Coordinator • Title IX Coordinator § No Actual Knowledge when the only district employee with • Any official of the respondent who has authority to institute • Any official of the respondent who has authority to institute actual knowledge is the respondent corrective measures corrective measures • Any employee • Any employee

103 104 105

Education Program or Activity Duty to Respond? Duty to Respond?

§ Includes locations, events, or circumstances over which the § Alexander Hamilton (HS Student) district exercised § Maria Reynolds (HS Student) (1) substantial control over both the respondent, AND § After the dance, Coach Adams hears (2) the context in which the sexual harassment occurs rumors that ”something bad” happened between them in Alex’s truck in the § Electronic or in person parking lot after the dance § Does not say “on campus” or “off campus” § Maria’s Journal: Alex forced her to have sex with him in his truck but she doesn’t Lincoln High School mention where

106 107 108

12 12/8/20

General Response to Duty to Respond? Duty to Respond? ALL Allegations of Sexual Harassment (with or without formal complaint)

§ Actual Knowledge § Truck in school parking lot § Title IX Coordinator MUST § Allegations of Sexual Harassment § Truck parked in cornfield outside of • Promptly contact the complainant to discuss the availability of county, unrelated to any school activity supportive measures § Education Program or Activity – Consider the complainant’s wishes with respect to supportive measures § In the U.S. § Truck parked on side of road when – Supportive measures are available whether a formal complaint is filed or not ? students are returning from golf practice • Explain to the complainant the process for filing a formal complaint

109 110 111

General Response to General Response to ALL Allegations of Sexual Harassment ALL Allegations of Sexual Harassment Supportive Measures (with or without formal complaint) (with or without formal complaint)

§ Must treat parties equitably: § Respondents are presumed to be “not responsible for the § Non-disciplinary, non-punitive individualized services • Offer supportive measures to complainant alleged conduct until a determination regarding • Follow the formal grievance process before imposing any responsibility is made at the conclusion of the grievance disciplinary sanctions against respondent process.” § Offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent § Until the end of the grievance process, • 34 C.F.R. § 106.45(b)(1)(iv) (emphasis added) • No Student Discipline • No Adverse Employment Action § Offered before or after the filing of a formal complaint or where no formal complaint has been filed

112 113 114

What CAN the school do? What CAN the school do? Back to Lincoln HS

§ Emergency Removal § Administrative Leave for Non-Student Employees § Coach/Teacher Adams reports allegations • BUT, district MUST • Doesn’t modify rights under Section 504 or the ADA of sexual harassment to Title IX – undertake an individualized safety and risk analysis, • Check state law processes for forced leaves of employees Coordinator Dolley Madison (GOOD!) – determine that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal, and – provide the respondent with notice and an opportunity to challenge the decision immediately following the removal. • Doesn’t modify rights under IDEA, Section 504, or the ADA

115 116 117

13 12/8/20

Title IX Team Training: Back to Lincoln HS Disclaimers Formal Complaints

§ KSB School Law represents only public schools and related entities (like Educational § Can Title IX Coordinator Dolley Madison Service Units). • Offer counseling to Maria • We DO NOT represent individual teachers, students, parents, or district • Extend Maria’s deadlines for coursework employees. • Grant Maria a leave of absence § This presentation and these slides DO NOT constitute legal advice—they are for • Suspend Alexander during preliminary fact-gathering training purposes only. Any questions about your obligations or specific situations • Emergency remove Alexander should be discussed with your legal counsel. § Neither this presentation nor these slides shall be construed to create an attorney- • Exclude Alexander from Maria’s calculus class client relationship between you and KSB School Law or between you and us. § You should have no expectation of confidentiality or that anything that discussed is ? privileged. ? § Material discussed in this training is explicit. 118 119 120

Overview of Grievance Process Formal Complaint Formal Complaint

Informal Resolution § A document filed by a complainant or signed by the Title § May be filed with the Title IX Coordinator in person, by mail, IX Coordinator alleging sexual harassment against a by email, and “by any additional method designated” by the Sex General Formal Harassment Responses Complaint Investigation Decision Appeal respondent and requesting that the district investigate the district allegation of sexual harassment

121 122 123

OCR Q & A: Question 5 Formal Complaint Formal Complaint September 4, 2020

§ Is a document or electronic submission that includes § At the time of filing, a complainant must be participating in § “If a complainant either withdraws from school because of complainant’s digital or physical signature or otherwise or attempting to participate in the district’s education sexual harassment and then files a complaint, or files a indicates that the complainant is the person filing the program or activity complaint but then withdraws as a result of the sexual formal complaint harassment or stress of the grievance process, how would the regulations affect the complainant’s ability to pursue a § A Title IX Coordinator who signs the complaint IS NOT a § September 4, 2020 OCR Q & A complainant or a party formal complaint?”

124 125 126

14 12/8/20

OCR Q & A: Answer 5 OCR Q & A: Answer 5 Formal Complaints Hypo September 4, 2020 September 4, 2020

§ Alexander Hamilton is in his senior year at Lincoln High School. His favorite coach is the § Leave of Absence § TixC may also sign formal complaint regardless of whether assistant hockey coach, Ms. Abigail Adams. § Dolley Madison is the Activities Director and TixC and has arranged for all staff, including • May still be enrolled complainant is “participating or attempting to participate” in Coach Adams to be trained in recognizing sex harassment. • May intend to re-apply after LOA the school’s education program or activity § Coach Adams would regularly text with her players to communicate regarding practices and when the rink would be open § “By way of further example, a complainant who has left § TixC’s decision is evaluated under the deliberate indifference § In the middle of the season in January, Alexander abruptly decides to drop out of school school because of sexual harassment, but expresses a standard the day after he turns 18 desire to re-enroll if the recipient appropriately responds to • Whether the decision was clearly unreasonable in light of the § In February, he sends the following text message to Coach Adams: known circumstances. • Hey Coach. I wanted to tell you I’m sorry I quit right after the season. I just didn’t think I could do school the sexual harassment, is ‘attempting to participate’ in the anymore. My ex-gf Maria Reynolds and I broke up and she got really upset when I ended it. She was a bit needy and I just couldn’t do it anymore, but she got way worse after we broke up. She has stalked me on recipient’s education program or activity.” snap and insta ever since, saying she’s watching me and that she can’t wait for me to come back to school so we can get back together. It really freaked me out the way she said some stuff and I just couldn’t come to school anymore. I’m sorry

127 128 129

Is this a ”formal complaint?” Is this “Sexual Harassment?” What should Abagail Adams do?

§ Is a document or electronic submission that includes § Remember: Unwelcome conduct determined by a reasonable § Benefits and costs of initiating a complaint complainant’s digital or physical signature or otherwise person to be so severe, pervasive, and objectively offensive • Complaint triggers new TIX procedures indicates that the complainant is the person filing the that it effectively denies a person equal access to the • No complaint: has Maria violated code of conduct? formal complaint. district’s education program or activity (Gebser/Davis) • Our advice: probably file • Here: no signature, no request for action • Probably not a “complaint”

130 131 132

Title IX Coordinator’s Role in Responding to Formal Complaints Hypo Formal Complaint Disclaimers

§ What if Alex’s text asks Coach Adams to help him come back to school? § What if Alex’s mom is the one who reaches out to Coach Adams? § KSB School Law represents only public schools and related entities (like § What if Alex was still enrolled? Educational Service Units). • We DO NOT represent teachers, students, parents, or district § What if Alex hadn’t texted Coach Adams, but she sas that he posted this on Instagram? employees. § What if Maria posts nasty things about Alex on her Snapchat story and Coach Adams § This presentation and these slides DO NOT constitute legal advice. sees the story? § Neither this presentation nor these slides shall be construed to create an § What if Coach Adams doesn’t say anything to AD Madison? attorney-client relationship between you and KSB School Law or between you and us. § You should have no expectation of confidentiality or that anything that we discuss today is privileged. § Material discussed today is explicit 133 © 2020 KSB School Law, PC, LLO 134 © 2020 KSB School Law, PC, LLO 135

15 12/8/20

Title IX Coordinator’s Role in Overview of Grievance Process Responding to Formal Complaint General Notice Obligations

Informal Resolution §Title IX Coordinator

Sex General Formal Harassment Responses Complaint Investigation Decision Appeal •Posting required notices •Receive formal complaints •Consider factors for dismissal

© 2020 KSB School Law, PC, LLO 136 © 2020 KSB School Law, PC, LLO 137 © 2020 KSB School Law, PC, LLO 138

General Notice Obligations General Notice Obligations General Notice Obligations

§ TixC must be designated formally by district §TixC contact info must be “prominently § Notice to persons above must state the district does not § Must notify the following of the name or title, office address, email displayed” on website and in student/employee discriminate on the basis of sex in the education program or address, and telephone number of the employee or employees activity that it operates, and that the district is required by designated as the TixC: handbooks Title IX not to discriminate in such a manner • applicants for admission and employment §Updated policy with grievance procedure must § The notice must also state that the requirement not to • students be prominently displayed on website and discriminate in the education program or activity extends to • parents or legal guardians of elementary and secondary school admission and employment, and that inquiries about the students included in handbooks application of title IX and this part to such recipient may be • employees referred to the recipient’s Title IX Coordinator • all unions or professional organizations holding collective bargaining or professional agreements with the recipient

© 2020 KSB School Law, PC, LLO 139 © 2020 KSB School Law, PC, LLO 140 © 2020 KSB School Law, PC, LLO 141

Required Notices During General Notice Obligations Grievance Process When to Dismiss?

§District must also provide to persons above §Before Investigation Begins- notice of the grievance procedures and • Initial notice of investigation to BOTH parties –As soon as practicable after formal complaint received grievance process discussed below, including: • how to report or file a complaint of sex §After Dismissal discrimination, • Notice of Dismissal to both parties • how to report or file a formal complaint of sexual §During Investigation harassment, and • Notice of Interview to parties • how the district will respond • Notice of Evidence to Parties (from investigator)

© 2020 KSB School Law, PC, LLO 142 © 2020 KSB School Law, PC, LLO 143 © 2020 KSB School Law, PC, LLO 144

16 12/8/20

Title IX Coordinator’s Role— Title IX Coordinator’s Role— Title IX Coordinator’s Role— When to Dismiss? When to Dismiss? When to Dismiss?

§District must dismiss the complaint if the §District may dismiss if §If the district dismisses, must provide notice of allegations: • Complainant requests (in writing to TixC) to dismissal to both parties • Would not constitute sexual harassment even if withdraw the formal complaint**; §Notice must contain rationale for dismissal proved • Respondent is no longer enrolled or employed by §Whether it was mandatory or permissive • Did not occur in the district’s education program or the district activity • Specific circumstances prevent district from • Did not occur against a person in the United gathering evidence sufficient to reach a States determination

© 2020 KSB School Law, PC, LLO 145 © 2020 KSB School Law, PC, LLO 146 © 2020 KSB School Law, PC, LLO 147

Title IX Coordinator Response Hypo— Title IX Coordinator Response Hypo— Title IX Coordinator Response Hypo— More Trouble at Lincoln High Angelica and Mr. Franklin Maria and John

§ Title IX Coordinator Dolley Madison receives three separate emails §Give initial notices to both parties first § Give initial notices to both parties first regarding sexual harassment §Dismissal? Go through the steps § Dismissal? Go through the steps 1. Angelica Church, 17, alleges Mr. Franklin, a physics teacher, • Would it constitute sex harassment if proved? • Would it constitute sex harassment if proved? slapped her butt last year when she saw him at a restaurant. Probably (see fondling definition). • Educational Program or Activity? 2. Maria Reynolds alleges John Laurens sexually assaulted her – Happened outside of school hours, but on school grounds right §Educational Program or Activity? after school activity after marching band practice a month ago in his car in the • In United States? school parking lot. John is no longer enrolled in the district. • Happened off-campus, outside school hours, not as part of any sanctioned activity • Respondent still enrolled? 3. Peggy Schuyler alleges Mark Lafeyette sent her constant social § Does the time matter? media messages for about a month over a year ago. The §Dismissal probably required (might want to § Dismissal probably not required but allowed messages stated he was always watching her, and she had to consider when deciding to renew contract, • We’d recommend dismissal (no way to punish respondent) seek counseling. The messages stopped about a year ago. though) but ensure you’re providing supportive measures

© 2020 KSB School Law, PC, LLO 148 © 2020 KSB School Law, PC, LLO 149 © 2020 KSB School Law, PC, LLO 150

Title IX Coordinator Response Hypo— Peggy and Mark Investigations Disclaimers

§ Give initial notices to both parties first § KSB School Law represents only public schools and related entities (like § Dismissal? Go through the steps Educational Service Units). • Would it constitute sex harassment if proved? Probably • We DO NOT represent teachers, students, parents, or district (Severe, pervasive, and objectively offensive to the employees. degree it denies access to the educational program or § This presentation and these slides DO NOT constitute legal advice. activity) § Neither this presentation nor these slides shall be construed to create an • Educational Program or Activity? • In United States? attorney-client relationship between you and KSB School Law or between • Respondent still enrolled? you and us. • Any specific circumstances preventing a determination? § You should have no expectation of confidentiality or that anything that we § Dismissal not required and likely not possible discuss today is privileged. • Time elapsed does not compel dismissal § Material discussed today is explicit

© 2020 KSB School Law, PC, LLO 151 © 2020 KSB School Law, PC, LLO 152 © 2020 KSB School Law, PC, LLO 153

17 12/8/20

Overview of Grievance Process Investigator Investigation Best Practices

Informal Resolution

Sex General Formal Harassment Responses Complaint Investigation Decision Appeal

Guidance Counselor Aaron Burr © 2020 KSB School Law, PC, LLO 154 © 2020 KSB School Law, PC, LLO 156

The Investigation The Investigation Understand the Claim

▪Must be prompt, thorough, impartial, and without bias §Coordinate investigation with law enforcement or §Conduct a thorough interview of the ▪Treat all with respect and dignity others as necessary or appropriate complainant and identify specific allegations ▪Make no assumptions • School has the legal obligation to conduct a prompt investigation made §At a minimum should include interviews with the §Identify specific provisions of law or parts of victim, the alleged harasser, and anyone else who can • 34 C.F.R. § 106.45 includes “law enforcement activity” as a “good cause” to delay “reasonably prompt” provide relevant information school policy alleged to have been violated timelines §Conduct a thorough interview of the §DOCUMENT, DOCUMENT, DOCUMENT §Keep criminal, child abuse, and professional reporting obligations in mind complainant and identify defenses

Create a Plan Time for investigation? Keep Parties Informed

▪Written list of witnesses §Review time line and plan accordingly ▪No specific requirements to update parties at • In addition to time taken to actually compile evidence, the every step (other than notice of interviews and parties must have at least ten days to review all evidence submission of evidence at end of investigation) ▪Written list of questions before a decision can be made by the decision maker ▪However, keeping parties informed can make the §Time limit? process run more smoothly ▪Written list of documents • Regulations say the grievance process must have “reasonably prompt time frames for occlusion of the grievance process” • Investigation should take less time if facts are straightforward

18 12/8/20

Credibility determinations and decision- making Interviews

§ Credibility determinations • Cannot be made based on status of complainant, respondent, or §“Provide, to a party whose participation is witness invited or expected, written notice of the date, • Generally left to the D-M, especially when they impact responsibility determinations time, location, participants, and purpose of all • Investigator should report facts regarding physical behavior and hearings, investigative interviews, or other indicators of reliability and truthfulness during interviews § Decision-making left to decision maker meetings, with sufficient time for the party to • Investigator should include facts that would bear towards prepare to participate” responsibility or non-responsibility, but notes and report should not state any determination by the investigator • 34 CFR 106.45(b)(5)(v)

© 2020 KSB School Law, PC, LLO 163 © 2020 KSB School Law, PC, LLO 165

Witness Interviews Witness Interviews Witness Interviews

§Review any documents, videos, and other tangible §Interviews should be somewhere private with limited §Take your time! evidence prior to interviews as appropriate interruptions §Introduce yourself and explain your role §Bring relevant documents to interview §Record? Take notes? §Explain purpose of interview and how information • Taking notes during the interview —may slow down the §Outline and develop standard questions before the will be used interview interview but this is not necessarily a negative as it can help detect deception if party is nervous about your note §Make clear they are not obligated to participate and • Write out key questions and ask them the same way to taking the school can’t retaliate against that decision every witness • Should take place throughout interview, not just at §Employ empathy while maintaining professionalism incriminating or deceptive moments

© 2020 KSB School Law, PC, LLO 166 © 2020 KSB School Law, PC, LLO 167 © 2020 KSB School Law, PC, LLO 168

Witness Interviews Witness Interviews Witness Interviews

§Interview witnesses separately §Investigate any bias the complainant or witnesses may §Don’t use leading questions §Tell the person he or she must tell the truth, even if have against the respondent §Don’t shy away from uncomfortable questions it is difficult §Ask simple questions, not compound questions §Let witnesses answer your questions in their own §Question with empathy and understanding § Don’t promise confidentiality • It’s not an interrogation • But, limit the disclosure of information to people who words really need to know • Do not suggest answers and do not help them with their answers § Gather facts, not opinions or guesses §Start with broad open-ended questions and get more § Use “who, what, where, when, why, and how” specific as needed questions

© 2020 KSB School Law, PC, LLO 169 © 2020 KSB School Law, PC, LLO 170 © 2020 KSB School Law, PC, LLO 171

19 12/8/20

Witness Interviews Witness Interviews Witness Interviews

§Have witnesses tell you what they know from §Be comfortable with silence §Review your notes before the interview concludes; personal knowledge and what they know from other §Consider obtaining legibly written (or typed) and clarify anything you are unclear about sources signed statements §Notes should be complete and detailed §Listen to “hearsay” but record it as hearsay §Retaliation is prohibited • Important for assessing credibility • Decision may turn on small details §Try to obtain information in chronological order to • If they are threatened, harassed, etc., come to you the extent possible §Don’t make promises about outcomes §Where possible, include verbatim statements on §Identify potential witnesses critical issues – paraphrasing can later become problematic

© 2020 KSB School Law, PC, LLO 172 © 2020 KSB School Law, PC, LLO 173 © 2020 KSB School Law, PC, LLO 174

Witness Interviews Dangerous Words Krebs v. New Kensington-Arnold Sch., 2016 U.S. Dist. LEXIS 159059 (W.D. Pa. 2016) While interviewing complainant, be careful §Harassment and bullying between 7th and 9th grades §Ask if there is anything the complainant wants to tell that these words don’t come out of your th you that you didn’t ask mouth: §7 Grade • “fat” and “ugly” §Contact you if they think of anything else ▪ It’s just teasing- no big deal. • Grades fell from A’s to C’s §Gather any additional documents, videos, or other ▪ The people in our school would never do… • Lost 30 pounds ▪ I know he/she didn’t mean anything like that. tangible evidence §8th Grade ▪ You need to learn to handle these things. §Conduct as many follow-up interviews as are needed ▪ If you won’t file a written complaint our hands This Photo by Unknown Author is licensed under CC BY-SA • Name calling: “slut” “whore” “stupid” “bitch” are tied • Cutting ▪ When it is he said she said I can’t do anything • Mom found note from peer expressing concern about ▪ Boys will be boys or Kids will be kids behaviors © 2020 KSB School Law, PC, LLO 175

Krebs v. New Kensington-Arnold Sch., Krebs v. New Kensington-Arnold Sch., Krebs v. New Kensington-Arnold Sch., 2016 U.S. Dist. LEXIS 159059 (W.D. Pa. 2016) 2016 U.S. Dist. LEXIS 159059 (W.D. Pa. 2016) 2016 U.S. Dist. LEXIS 159059 (W.D. Pa. 2016)

th §8th Grade §8 Grade §9th Grade • Mom took note to AP • Meeting with mom, AP, and GC • AP refused request for online school • Told Destinee to document and report to AP • “This was just something girls did” −“lacked motivation” and “failing grades” • One week later, PAL said reports would not be enough to • Teachers observed and reported changes in demeanor and stop harassment • Destinee threatened suicide – hospitalized decrease in schoolwork quality th −Mom told school about incident and diagnoses • Mom witnessed classmate threaten Destinee, reported to §9 Grade • Student text to Destinee AP • Returned to school, harassment continued −Picture: bloody wrist −Promised to investigate • School suspended Destinee for skipping school −Physical assault −Did not investigate §Destinee committed suicide −Prepared no incident report −Mom reported both to APs, PAL, and GC

20 12/8/20

Krebs v. New Kensington-Arnold Sch., Dangerous Words Investigation Hypo 2016 U.S. Dist. LEXIS 159059 (W.D. Pa. 2016)

§Court While interviewing respondent, be careful § Maria Reynolds brings a complaint against Alexander Hamilton, alleging he sexually • District never followed up with family that these words don’t come out of your mouth: assaulted her in school • District never investigated § She brings a formal complaint to Title IX • “While infrequent name calling and bullying among ▪ Why are you lying? Coordinator, Abigail Adams, who assigns adolescent peers at school may not always rise to the level ▪ You’re in trouble Guidance Counselor Aaron Burr to You should not have done this of harassment required under Title IX, the constant and ▪ investigate the complaint How do you think this made her feel? pervasive harassment with sex based terms alleged to ▪ § Ms. Adams reports the behavior as a This Photo by Unknown Author is licensed under CC BY-SA crime and provides Maria and Alexander have been endured by Destinee does” with the initial notice that the complaint • MTD Title IX complaint denied has been filed

Investigation Hypo: Investigation Hypo: Investigation Hypo: Starting off Approaching interviews Approaching interviews

§ What should Burr’s first steps § Notice of Interviews § What to ask Hamilton? be? • Must give sufficient time to • Confront on the specific prepare • Outline interview process/steps allegations made by Reynolds and § What to ask Reynolds? • Notice parties of interviews keep asking until the response is • Get as many specifics as possible • Consider who else to interview clear • Consider other possible evidence • Consider facts and evidence needed to allow decision maker to • May ask about respondent’s prior • Prepare interview questions make responsibility determination, sexual behavior or predisposition, such as but not complainant’s − What exact words did Hamilton use? − Where and when did this happen? − How has this affected her education? − What’s her history with Hamilton?

Investigation Hypo: No Investigation Hypo: Parallel King v. Curtis, stone unturned Investigations W.D. Mich (2016)

§ Other evidence? § Police involvement §Athletic trainer assaults multiple students • Staff member witness interviews? • Police conduct an investigation §Dispute over when district had “actual knowledge” over the next few days and school • Student witness interviews? assault had occurred − Don’t need to be direct witnesses to the is notified the state’s attorney does not plan on bringing charges incident to be relevant §Court finds not until police contacted school about • Video evidence? against Hamilton • Any affect on school’s obligations? allegations • Evidence from law enforcement • Prior complaints and situations did not rise to the level of investigation? actual knowledge

21 12/8/20

King v. Curtis, King v. Curtis, King v. Curtis, W.D. Mich (2016) W.D. Mich (2016) W.D. Mich (2016)

§Once school has knowledge, still need to demonstrate §Superintendent when asked about training: §Court: they were not “deliberately indifferent” • Never attended any training concerning teacher-on- • “These positions reflect a misunderstanding of the school §Superintendent on investigation: student sexual harassment district's obligations under Title IX. As the United States • Never received any training to identify signs of sexual Department of Education had previously informed • "there was no reason to investigate" because the harassment or sexual abuse of children educators, "the school's Title IX investigation is different allegations against Defendant Curtis “were being from any law enforcement investigation, and a law investigated by the police” • No employee handbook or written materials provide guidance to staff regarding the warning signals that might enforcement investigation does not relieve the school of its appear that a child is being sexually abused independent Title IX obligation to investigate the conduct."

King v. Curtis, Doe v. Forest Hills Sch. Dist. Doe v. Forest Hills Sch. Dist. W.D. Mich (2016) 2015 U.S. Dist. LEXIS 175321 (W.D. Mich. 2015) 2015 U.S. Dist. LEXIS 175321 (W.D. Mich. 2015)

§Court: §High school girl alleged boy sexually assaulted her at §Family sued under Title IX • Failure to investigate exacerbated hostile environment for school §School: not deliberately indifferent students, many in the community believed allegations were §Security footage inconclusive fabricated §Court: “Here, the school admitted that it was waiting • Investigation could have uncovered that Curtis admitted a §Principal called the cops; cops did not initially charge* for the police investigation to make its determination sexual relationship with a student to a school board §Victim alleged she was harassed by peers after report and did not suspend MM until after he pled guilty to member state charges.” • Failure to train staff resulted in violation of plaintiff’s constitutional rights

Doe v. Forest Hills Sch. Dist. Parties’ Rights During Investigation—Right 2015 U.S. Dist. LEXIS 175321 (W.D. Mich. 2015) to Present Witnesses §Court: Principal “failed to interview Doe's friends, and waited months for someone else to make a conclusion §Parties must have the opportunity to present witnesses as to whether the assault happened. Based on the during investigation record, a jury could find that the investigation in its • Can be both fact and expert witnesses if they wish scope and the delay to ultimate conclusion was clearly §The investigation must “[p]rovide an equal opportunity unreasonable and represented deliberate indifference for the parties to present witnesses, including fact and by the school and administrators.” expert witnesses, and other inculpatory and exculpatory evidence” 34 CFR 106.45(b)(5)(ii)

© 2020 KSB School Law, PC, LLO 197 © 2020 KSB School Law, PC, LLO 198

22 12/8/20

Parties’ Rights During Investigation— Parties’ Rights During Investigation— Parties’ Rights During Investigation— Discussion of Allegations Discussion of Allegations Right to Advisor

§ “Not restrict the ability of either party to discuss the §Exceptions § “Provide the parties with the same opportunities to have others allegations under investigation or to gather and present present during any grievance proceeding, including the opportunity relevant evidence” • No contact directives as part of supportive to be accompanied to any related meeting or proceeding by the • 34 CFR 106.45(b)(5)(iii) measures advisor of their choice, who may be, but is not required to be, an § Parties must be able to discuss allegations with anyone attorney, and not limit the choice or presence of advisor for either §Possible First Amendment concerns? the complainant or respondent in any meeting or grievance • Limited to the allegations themselves proceeding; however, the recipient may establish restrictions • Can place limits on discussion of the evidence outside of regarding the extent to which the advisor may participate in the the Tix process proceedings, as long as the restrictions apply equally to both • Regulations allow for school to require NDAs if no formal parties” complaint is filed • 34 CFR 106.45(b)(5)(iv)

© 2020 KSB School Law, PC, LLO 199 © 2020 KSB School Law, PC, LLO 200 © 2020 KSB School Law, PC, LLO 201

Parties’ Rights During Investigation— Investigation Hypo: Dead Parties’ Rights During Investigation— Protection from Retaliation to Rights? Reviewing All Evidence

§ Burr issues a notice to Hamilton that §Prohibition against retaliation his interview will take place in two §Review of all compiled evidence • Cannot hold a party’s (or a days in the school conference room • Once the investigator has compiled the evidence, ALL of witness’s) refusal to participate in § Hamilton responds that his attorney the evidence, including that which he doesn’t plan to use, the process against them cannot attend that day, and he must be disclosed to both parties • “Right to remain silent” refuses to proceed without his • Parties must then have the chance to meaningfully • Applies both to investigation and attorney present respond to the evidence before the investigator drafts employment This Photo by Unknown Author is licensed under CC BY-NC-ND § Burr has already obtained video final report footage confirming Reynolds’ §34 CFR 106.71(a) allegations §34 CFR 106.45(b)(5)(vi) § What next? © 2020 KSB School Law, PC, LLO 202 © 2020 KSB School Law, PC, LLO 204

Parties’ Rights During Investigation— Reviewing All Evidence Consider Dismissal? Consider Dismissal?

§Review of all compiled evidence §Once evidence is gathered, investigator should §Dismissal is permissive if: convene with Title IX coordinator to see if dismissal is • Can be submitted electronically • Complainant requests (in writing to Title IX either permitted or mandated • Parties must have at least ten days to submit a written Coordinator) to withdraw the formal complaint; §Dismissal is mandatory if: response to evidence, which investigator must consider • Respondent is no longer enrolled or employed by prior to drafting report • The facts would not constitute sexual harassment even if proved; the district; or • The conduct did not occur in the district’s education program • Specific circumstances prevent district from or activity; or • The conduct did not occur against a person in the United gathering evidence sufficient to reach a States determination

© 2020 KSB School Law, PC, LLO 205 © 2020 KSB School Law, PC, LLO 206 © 2020 KSB School Law, PC, LLO 207

23 12/8/20

Consider Dismissal? Burden of Proof Burden of Proof

§If we’re allowed to dismiss, how do we know if we §34 CFR 106.45(b)(5) §School is the party responsible for figuring out should? §“When investigating a formal complaint and what happened. §Pro: Don’t have to deal with investigation anymore throughout the grievance process, a recipient • Not complainant’s job to prove the claims • Not the respondent’s job to exonerate §Con: Unable to punish respondent for sex must— themselves harassment unless the grievance procedure is • (i) Ensure that the burden of proof and the followed burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the recipient and not on the parties”

© 2020 KSB School Law, PC, LLO 208 © 2020 KSB School Law, PC, LLO 209 © 2020 KSB School Law, PC, LLO 210

How much needs to be proved? Report Writing Report Writing

§ Preponderance of the evidence §34 CFR 106.45(b)(5)(vii) §Report should include: • More likely than not • The names of the parties § Clear and convincing evidence • The parties’ representatives, if any • When the evidence "instantly tilts the scales in the affirmative when §Report must “fairly weighed against the evidence in opposition and if it causes the fact • Allegations investigated finder to have an abiding conviction that the evidence is true," it is summarize the relevant evidence” • Individuals interviewed and dates of interviews considered clear and convincing. Trickey v. Kaman Indus. Techs. • List of exhibits/evidence considered Corp., 705 F.3d 788, 799 (8th Cir. 2013). • In other words, something highly and substantially more probable –Attach copies to be true than not § 34 CFR 106.45(1)(vii)

© 2020 KSB School Law, PC, LLO 211 © 2020 KSB School Law, PC, LLO 212 © 2020 KSB School Law, PC, LLO 213

Report Writing Report Writing Report Writing

§Report should include: §Use their words as much as possible § What evidence to put in report? • Summary of facts §Should describe any prior relationships between the § Relevant Evidence –Include your reasoning for a controversial or contested fact determination parties • Relevant evidence means evidence having any tendency –Discuss facts related to credibility of witnesses, witness to make the existence of any fact that is of consequence reluctance, witness tampering or retaliation, etc. §Must be sent to each party or the party’s advisor to the determination of the action more probable or less • Statement of Jurisdiction (control over respondent, control §Can be either in a hard copy or electronically probable than it would be without the evidence over context of allegations, reasons for no mandatory § Who, what, when, how of allegations in the complaint dismissal) • Burden of proof (preponderance of the evidence or clear and convincing)

© 2020 KSB School Law, PC, LLO 214 © 2020 KSB School Law, PC, LLO 215 © 2020 KSB School Law, PC, LLO 216

24 12/8/20

Investigation Hypo: Investigation Hypo: Report Writing Evidence Concluded Evidence Concluded

§ Burr has conducted interviews with both § If Burr drafts report in spite of § Motive or bias of witnesses and parties parties Hamilton’s protests, could invite an § Objective indications of truthfulness or deceit (e.g. witness § Hamilton alleges he wasn’t at school that day looked down during entire interview, witness was sweating but can’t remember what he was doing appeal § Burr submits his evidence to both parties and § and would start and stop sentences frequently, sobbing, Desire to wrap investigation up believes he’s ready to draft report quickly notwithstanding, should etc.) § On the eighth day after he submits evidence to § Relevant evidence can be both inculpatory (showing both parties, Hamilton contends it is not him in probably just do the interview responsibility) and exculpatory (showing non-responsibility) the video and demands Burr interview a friend § Regulations are unclear on whether of his who can corroborate an alibi additional evidence after initial § What are Burr’s obligations? evidence review requires a restart

© 2020 KSB School Law, PC, LLO 217

The Boundary between Investigations and Decision-Making Disclaimers Overview of Grievance Process

§ KSB School Law represents only public schools and related entities (like Informal Resolution Educational Service Units). Sex General Formal • We DO NOT represent teachers, students, parents, or district Harassment Responses Complaint Investigation Decision Appeal employees. § This presentation and these slides DO NOT constitute legal advice. § Neither this presentation nor these slides shall be construed to create an attorney-client relationship between you and KSB School Law or between you and us. § You should have no expectation of confidentiality or that anything that we discuss today is privileged. § Material discussed today is explicit © 2020 KSB School Law, PC, LLO 220 © 2020 KSB School Law, PC, LLO 221 © 2020 KSB School Law, PC, LLO 222

Separate Roles and all the hats to wear Decision-Makers Decision-Maker

§Thomas Jefferson is principal and has §Title IX Coordinator training as a decision-maker §Investigator §Decision maker is a new role for Title IX complaints in sex harassment only §Decision Maker §Determines final responsibility or non- responsibility §Appellate Decision Maker §Issues written determination at §Informal Mediator culmination of grievance procedure

High School Elementary Middle School Principal Thomas Principal Sally Principal John Jefferson Hemmings Adams © 2020 KSB School Law, PC, LLO 223

25 12/8/20

Boundaries for Decision-Maker and Investigator/Decision-Maker Credibility Determinations Investigator Boundary—Credibility

§D-M not required to be an employee § Credibility determinations §Things Investigator can (and should) §May not be Title IX Coordinator, • Cannot be made based on status of complainant, respondent, or witness put into notes and subsequent Investigator, Appellate Decision-Maker, or • Generally left to the D-M, especially when they impact responsibility investigative report: informal mediator determinations • “The complainant’s eyes were moving §Recommended that you align decision- • Investigator should report facts regarding physical behavior and constantly while he spoke.” maker role with similar roles in general indicators of reliability and truthfulness during interviews • “The respondent made several hand disciplinary processes § Decision-making left to decision maker gestures when he was done speaking.” • Usually the building principal • Investigator should include facts that would bear towards responsibility or • “Complainant’s voice shook and faltered while she told the story.” non-responsibility, but notes and report should not state any • “Respondent would respond with a determination by the investigator raised voice when questioned.”

© 2020 KSB School Law, PC, LLO 227 © 2020 KSB School Law, PC, LLO 228

Credibility Determinations The Investigative Report The Investigative Report

§Things investigator SHOULD NOT put into §Decisions are the purview of the §Include: notes and subsequent report decision-maker • “The respondent alleges he was in his biology §Investigator should avoid credibility class when the alleged assault occurred in the • “The complainant did not appear truthful” determinations parking lot. Several witnesses including his • “The respondent was believable” §Should include in notes facts that teacher corroborate his statements.” • “Because of facts x,y, and z, the witness is likely would bear towards responsibility or • “Several witnesses saw the respondent enter the lying” non-responsibility, but notes and locker room where the complainant alleges the report should not state any • The decision-maker should conclude . . . . assault occurred. Their statements indicate the inferences to be drawn from those respondent looked angry.” facts © 2020 KSB School Law, PC, LLO 229 © 2020 KSB School Law, PC, LLO 230 © 2020 KSB School Law, PC, LLO 231

The Investigative Report Relevant Evidence Relevance

§NOT: § Both Investigator and Decision §Evidence is legally relevant if: •“It was impossible for the respondent to Maker are asked to make • (a) it has any tendency to make a fact more or less determinations about the probable than it would be without the evidence; and have committed the assault because he was relevance of evidence • (b) the fact is of consequence in determining the on the other side of the school in his biology § Decision Maker can only consider action. class.” relevant evidence for the –FED. R. EVID. 401 •“The complainant is probably telling the truth determination §“A brick is not a wall” because several people saw the respondent • The evidence doesn’t have to conclusively prove the follow her.” case one way or another

© 2020 KSB School Law, PC, LLO 232 © 2020 KSB School Law, PC, LLO 233 © 2020 KSB School Law, PC, LLO 234

26 12/8/20

Relevance Relevance Relevance

§Ultimate Question in a Title IX Grievance §Quid Pro Quo §Severe, Pervasive, and Objectively Offensive Process: • What was the district aid, benefit, or service at • What was the misconduct? issue? • Did respondent sexually harass complainant? • Who witnessed it? • What was the unwelcome sexual conduct that the • When did it occur? respondent requested? §What are some “facts of consequence”? • What were the statements or conduct that • How many times? • Depends on nature of sexual harassment. communicated that the receipt of the • Over what period of time? aid/benefit/service were conditioned upon • Why was complainant offended? engaging the unwelcome sexual conduct? • Is misconduct severe? Why?

© 2020 KSB School Law, PC, LLO 235 © 2020 KSB School Law, PC, LLO 236 © 2020 KSB School Law, PC, LLO 237

Relevance Relevance Not Relevant

§Sexual Assault – Rape §Sexual Assault – Fondling §Complainant’s sexual predisposition • Who, what, when, where, how? • Did respondent touch complainant’s private body • NEVER parts? Which ones? • Did respondent engage in sexual intercourse with • Was it for the purpose of respondent’s sexual §Complainant’s prior sexual behavior complainant? gratification? • UNLESS –Details of intercourse –How known? –Offered to prove that someone other than the • Did complainant consent? oPrevious interactions respondent committed the alleged misconduct –Was consent withdrawn during intercourse? oDemeanor. –Prior behavior with respect to respondent offered to oOral statements. oManifested how? prove consent oPhysical conduct

© 2020 KSB School Law, PC, LLO 238 © 2020 KSB School Law, PC, LLO 239 © 2020 KSB School Law, PC, LLO 240

Investigations/Decision Making Investigations/Decision Making Investigations/Decision Making Boundary Hypo 1 Boundary Hypo 1 Boundary Hypo 1

§Mr. Aaron Burr, the guidance counselor, has been §In Burr’s interview with Reynolds, she states the §In Burr’s interview with Hamilton, Hamilton states: asked by Title IX Coordinator Dolley Madison to following: • Reynolds had never touched him that way before investigate a formal complaint • She had recently broken up with Hamilton • He broke up with her §The complaint was filed by Alexander Hamilton • She has no memory of the events in the complaint • He threw her hand away as soon as she touched against his former girlfriend, Maria Reynolds, for specifically, but admits that she had touched him him grabbing his crotch at school that way during their relationship with his consent §Burr finds video of the incident showing Hamilton many times kiss Reynolds after she grabs him

© 2020 KSB School Law, PC, LLO 241 © 2020 KSB School Law, PC, LLO 242 © 2020 KSB School Law, PC, LLO 243

27 12/8/20

Investigations/Decision Making Investigations/Decision Making Investigations/Decision Making Boundary Hypo 1 Boundary Hypo 2 Boundary Hypo 2

§How should Burr approach his report? § Investigator Aaron Burr is assigned another investigation by § In Burr’s interview with the complainant, she alleges the following: TixC Dolley Madison • For the last month or so, every time Mulligan sees her says “Sup §Once Jefferson gets the report, how should he slutty Schuyler?” Their class schedule is similar so this happens § Angelica Schuyler filed a formal complaint against classmate several times a day approach his decision? Hercules Mulligan • This has caused others to begin calling her “Slutty Schuyler” as well §Previous history of Reynolds touching Hamilton? • Last week, Mulligan and several others wore t-shirts concealed § Burr schedules interviews for each student and gives each under other clothes which had an unflattering picture of Schuyler • Relevant? two days notice on it with the caption “always open for business” • She alleges her friend Abigail Adams was with her for many of the §Credibility? insults §Responsibility? • She’s stayed home sick several times recently because she alleges coming to school was too difficult

© 2020 KSB School Law, PC, LLO 244 © 2020 KSB School Law, PC, LLO 245 © 2020 KSB School Law, PC, LLO 246

Investigations/Decision Making Investigations/Decision Making Investigations/Decision Making Boundary Hypo 2 Boundary Hypo 2 Boundary Hypo 2

§ In Burr’s interview with the respondent, he states as follows: § Burr then decides to interview the two other witnesses— Hamilton and Adams § What’s relevant? • Schuyler was formerly dating his best friend, Alexander Hamilton • Hamilton mostly corroborates Mulligan’s story, but thought they never • Mulligan’s motivations? actually showed Schuyler the shirts • Hamilton told Mulligan that Schuyler cheated on him with John Church • His denials? • Hamilton told him that she broke up with him after she cheated on him, • In Adams’ interview, Burr asks her generally about the allegations. She • Hamilton’s testimony? telling him “I can’t be with someone as weak as you.” proceeds to tell the story almost verbatim to Schuyler’s allegations • Adams’ testimony? • He admits he may have called her a name once or twice but denies he did § Burr is suspicious… § Go through facts, do they go towards the who, what, when, why, and it everyday how of whether the conduct is severe, pervasive, and objectively • He denies the T-shirt allegation entirely offensive? • He alleges that while she was dating Hamilton, he would good-naturedly § Credibility determination? tease her and call her “Slutty Schuyler” and she didn’t care

© 2020 KSB School Law, PC, LLO 247 © 2020 KSB School Law, PC, LLO 248 © 2020 KSB School Law, PC, LLO 249

Title IX Team Training: Informal Resolution Process Disclaimers Overview of Grievance Process

§ KSB School Law represents only public schools and related entities (like Educational Informal Resolution Service Units). • We DO NOT represent individual teachers, students, parents, or district Sex General Formal Investigation Decision Appeal employees. Harassment Responses Complaint § This presentation and these slides DO NOT constitute legal advice—they are for training purposes only. Any questions about your obligations or specific situations should be discussed with your legal counsel. § Neither this presentation nor these slides shall be construed to create an attorney- client relationship between you and KSB School Law or between you and us. § You should have no expectation of confidentiality or that anything that discussed is privileged. § Material discussed in this training is explicit.

© 2020 KSB School Law, PC, LLO 250 © 2020 KSB School Law, PC, LLO 251 © 2020 KSB School Law, PC, LLO 252

28 12/8/20

New Tool in the Belt Informal Resolution Provided That The Recipient. . .

§Provides to the parties a written notice of: • Allegations §2001 and 2011 Guidance regarding previous • Requirements of the informal resolution process “. . . At any time prior to reaching a determination −Extent it precludes resumption of grievance procedures/formal complaint Title IX regulations and procedures discouraged regarding same allegations regarding responsibility the recipient may facilitate an −Any party may withdraw from informal resolution and resume grievance mediation or other informal resolution of procedures at any time prior to informal resolution informal resolution process that does not involve a • Consequences of informal resolution process complaints full investigation and adjudication. . .” −Including records that will be maintained or could be shared −Role of facilitator should grievance procedure resume §2017 Guidance permitted informal resolution, • 34 C.F.R. § 106.45(b)(9) §Obtains parties’ voluntary, written consent but did not provide guidelines or limitations

Discussion of Regulations Discussion of Regulations What is an Informal Resolution? 85 FR 30026 85 FR 30026 “The Department believes an explicit definition of ‘informal §Informal resolution options intended to promote resolution’ in the final regulations is unnecessary. Informal autonomy and reporting for complainants “The Department believes that the option of resolution may encompass a broad range of conflict resolution • Ability to engage in informal resolution “may encourage some strategies, including, but not limited to, arbitration, mediation, or complainants to file a formal complaint where they may have informal resolution gives recipients an avenue for restorative justice. Defining this concept may have the been reluctant to do so if a full investigation and adjudication using the disciplinary process to educate and unintended effect of limiting parties’ freedom to choose the was the only option” change behavior in a way that the adversarial resolution option that is best for them, and recipient flexibility to craft resolution processes that serve the unique educational • Affords “greater choice and control for complainants” formal grievance process might not, in situations needs of their communities.” §Intended to promote recipient discretion and problem where both parties voluntarily agree to • 85 FR 30026 solving participate.”

What is an Informal Resolution? What is an Informal Resolution? What is an Informal Resolution?

“The Department believes an explicit definition of ‘informal “The Department believes an explicit definition of ‘informal “The Department believes an explicit definition of ‘informal resolution’ in the final regulations is unnecessary. Informal resolution’ in the final regulations is unnecessary. Informal resolution’ in the final regulations is unnecessary. Informal resolution may encompass a broad range of conflict resolution resolution may encompass a broad range of conflict resolution resolution may encompass a broad range of conflict resolution strategies, including, but not limited to, arbitration, mediation, or strategies, including, but not limited to, arbitration, mediation, or strategies, including, but not limited to, arbitration, mediation, or restorative justice. Defining this concept may have the restorative justice. Defining this concept may have the restorative justice. Defining this concept may have the unintended effect of limiting parties’ freedom to choose the unintended effect of limiting parties’ freedom to choose the unintended effect of limiting parties’ freedom to choose the resolution option that is best for them, and recipient flexibility to resolution option that is best for them, and recipient flexibility to resolution option that is best for them, and recipient flexibility to craft resolution processes that serve the unique educational craft resolution processes that serve the unique educational craft resolution processes that serve the unique educational needs of their communities.” needs of their communities.” needs of their communities.” • 85 FR 30026 • 85 FR 30026 • 85 FR 30026

29 12/8/20

Informal Resolution ≠ What is an Informal Resolution? Supportive Measures Never Mandatory

“The Department believes an explicit definition of ‘informal §Informal resolution may result in discipline or other burden on §Never mandatory for the recipient resolution’ in the final regulations is unnecessary. Informal respondent • Informal resolution may be facilitated resolution may encompass a broad range of conflict resolution strategies, including, but not limited to, arbitration, mediation, or • Supportive measures must be non-disciplinary and non-punitive §Never mandatory for the parties restorative justice. Defining this concept may have the §Informal resolution can call for provision of service or measures • Participation voluntary, shown by written consent unintended effect of limiting parties’ freedom to choose the that would otherwise constitute supportive measures • May withdraw at any time prior to resolution resolution option that is best for them, and recipient flexibility to • Counseling, no contact orders, etc. §Never incentivized craft resolution processes that serve the unique educational §Informal resolution may finally resolve allegations needs of their communities.” • Cannot force parties to waive right to formal process and participate • Supportive measures cannot preclude formal complaint initiating grievance in informal resolution by conditioning any right or benefit upon that • 85 FR 30026 procedures and final resolution waiver

Never Mandatory Examples from the Department 85 FR 30026 When Appropriate 85 FR 30026

“While the final regulations permit recipients wide discretion to facilitate informal resolution of formal complaints of sexual §After a formal complaint has been filed “Similarly, a respondent’s lack of comprehension that harassment, the Department declines to require parties to attempt conduct constituting sexual harassment violates the mediation before initiating the formal grievance process. Every §Any time prior to the final determination (if the bodily or emotional autonomy and dignity of a victim party should know that a formal, impartial, fair process is available parties agree) to resolve Title IX sexual harassment allegations; where a recipient does not excuse the misconduct, though genuine lack of believes that parties may benefit from mediation or other informal §As a part of the reasonably prompt resolution of understanding may (in a recipient’s discretion) factor into resolution process as an alternative to the formal grievance process, the decision to attempt mediation or other form of allegations the sanction decision affecting a particular respondent, or informal resolution should remain with each party.” §Never to resolve allegations that an employee a recipient’s willingness to facilitate informal resolution of sexually harassed a student a formal complaint of sexual harassment.”

Examples from the Department 85 FR 30026 Factors to Consider Process

§Preference of complainant “Where the facts alleged in a formal complaint are not §Relationship of parties §Must be facilitated by individual free from bias or contested, or where the respondent has admitted, or §Need for further investigation conflict of interest, trained on how to serve wishes to admit responsibility, or where both parties want §Disposition of complainant impartially to resolve the case without a completed investigation or §Likelihood of recurrence of allegations/misconduct/incidents adjudication, § 106.45(b)(9) allows a recipient to §Not required to involve the parties confronting each §Severity/significance of allegations other or even being present in the same room facilitate an informal resolution of the formal complaint §Likelihood of productive outcome and educational opportunity • Mediations or other processes may be accomplished by that does not necessitate a full investigation or §Availability of qualified facilitator adjudication.” shuttle diplomacy

30 12/8/20

Outcomes Recommendations Hypothetical

§Parties must agree to resolution, thus drive the result §If you offer informal resolution, require that any resultant resolution be § John Laurens and Alexander Hamilton are §May result in respondent agreeing to accept disciplinary final as to the allegations members of the school wrestling team. sanctions or other adverse consequences, without §Continue to reinforce voluntary nature of process § One the first day of practice, Coach Abigail completing the grievance process §Resultant agreement should contemplate disciplinary process requirements Adams began berating John Laurens for not • If respondent agrees to discipline, resulting agreement should contemplate waiver of exerting enough effort in a practice match §May result in apology or acceptance of responsibility associated due process available under state law with Hamilton, culminating with the Coach §Consider interaction with special education laws alleging that Laurens was “taking it easy on §May result in other accommodations, supports, or his little boyfriend.” services like counseling, no contact orders, etc. • Disciplinary terms may be subject to MDR • Student’s placement decision of IEP Team to provide FAPE

Hypothetical Hypothetical Hypothetical

§ In every practice after for two months, § After complaining, both Hamilton and § Coach Adams is adamant the issue could be Coach Adams ridiculed the pair about their Laurens express interest in rejoining the resolved quickly and quietly by a team relationship and targeted them with wrestling team if the harassment is meeting led by the Athletic Director and Title homophobic slurs. The behavior continued resolved. IX Coordinator. She communicates this to to escalate through the season with both Complainants, assuring them this could encouragement of of other team members. § When Coach Adams received notice of even allow them to return to the team in § Laurens and Hamilton both quit the team a allegations, she was insistent it was an time to compete in regionals. Both month before the end of the season and overblown misunderstanding of her Hamilton’s and Laurens’ representatives filed a formal complaint naming Coach intentions, which were never to offend but Adams respondent. always in a crass attempt to motivate. would agree to an informal meeting to resolve the complaint.

Sorry, Coach! Requirements for Facilitators Informal Resolution Facilitator

§Complaint cannot be resolved through informal resolution where it is alleged an employee engaged in sexual harassment §Any person designated to facilitate informal §Work with both parties to reach a mutually §No right or benefit should be conditioned resolution process must: agreed upon resolution to the formal complaint on engaging in informal resolution • Not have a conflict of interest or bias • Focus not on investigating/fact-finding, but that will • Receive training on the definition of sexual likely factor in as parties work from common set of • Coach’s communication suggests that harassment, the scope of the recipient’s education facts informal resolution is incentivized by their more prompt return to the team program or activity, how to conduct an informal resolution process, as applicable, and how to serve §Utilize informal resolution process/method impartially described in notice to parties

31 12/8/20

Facilitating the Informal Resolution Same Hypothetical, Different Process Respondent Hypothetical

§Remain objective § John Laurens and Alexander Hamilton are §After complaining, both Hamilton and members of the school wrestling team. Laurens express interest in rejoining the §Don’t allow enthusiasm for resolution be mistaken for § One the first day of practice, John wrestling team if the harassment is incentivizing or conditioning benefits on engaging in the LaFayette, a foreign exchange student from resolved. process France who is an excellent wrestler began §When LaFayette received notice of berating John Laurens for not exerting allegations, he was insistent that talking §Allow case-by-case circumstances and determinations enough effort in a practice match with about having a little boyfriend is not drive the process Hamilton, culminating with the LaFayette offensive in France, and that this is a • Whether to separate parties during process likely depends on alleging that Laurens was “taking it easy on cultural misunderstanding. circumstances, etc. his little boyfriend.”

Hypothetical Hypothetical Informal Resolution in Practice

§All three students are willing to engage in informal resolution to allow §All three students are willing to engage in informal resolution to allow 1. Determine whether to offer to facilitate informal resolution. the wresting team to move forward without distraction. the wresting team to move forward without distraction. 2. Provide written notice to the parties regarding the available informal §Who can facilitate for District 1776? §Who can facilitate for District 1776? resolution process. • Dolley Madison (TIX Coordinator) • Dolley Madison (TIX Coordinator) 3. Obtain the parties’ voluntary, written consent to the informal • Thomas Jefferson (HS Principal and Decision-Maker) • Thomas Jefferson (HS Principal and Decision-Maker) resolution process. • Aaron Burr (Guidance Counselor and Investigator) • Aaron Burr (Guidance Counselor and Investigator) 4. Have a qualified facilitator facilitate the informal resolution. • John Adams (MS Principal and Decision-Maker) • John Adams (MS Principal and Decision-Maker) • George Washington (Superintendent and Appellate Decision-Maker • George Washington (Superintendent and Appellate Decision-Maker 5. Reach a resolution acceptable to each party and reduce to writing or • Someone else? • Someone else? resume grievance procedure. *Notify TixC if party withdraws from process at any time

Title IX Team Training: Decision-Making Process Disclaimers Agenda

§ KSB School Law represents only public schools and related entities (like Educational Service Units). §Where are we in the process? • We DO NOT represent individual teachers, students, parents, or district employees. §Review of the investigation § This presentation and these slides DO NOT constitute legal advice—they are for training purposes only. Any questions about your obligations or specific situations §Exchange of written questions should be discussed with your legal counsel. §Written determination § Neither this presentation nor these slides shall be construed to create an attorney- client relationship between you and KSB School Law or between you and us. §Issues to consider when imposing student § You should have no expectation of confidentiality or that anything that discussed is privileged. discipline § Material discussed in this training is explicit.

© 2020 KSB School Law, PC, LLO 286 © 2020 KSB School Law, PC, LLO 287 © 2020 KSB School Law, PC, LLO 288

32 12/8/20

Recap Review of Investigation Review of Investigation

Informal Resolution §Parties have presented evidence and witness §Investigator finalizes report that fairly

Sex General Formal that Investigator has investigated summarizes all relevant evidence Harassment Responses Complaint Investigation Decision Appeal §Parties have reviewed Investigator’s evidence §Parties receive Investigator’s Report and had opportunity to provide written §Parties may provide a written response (to feedback whom???) §Investigator has considered parties’ written responses

© 2020 KSB School Law, PC, LLO 289 © 2020 KSB School Law, PC, LLO 290 © 2020 KSB School Law, PC, LLO 291

Hypothetical Hypothetical Hypothetical

§Peggy Schuler and Maria Reynolds are 8th grade students in Minuteman Middle §Peggy Schuler begins to call Maria a §Maria is so distressed by Peggy’s School. “slut” and “whore” every time she taunts that she starts cutting §Both girls have romantic feelings for Alexander Hamilton, anther middle sees her. Peggy spreads rumors herself and is hospitalized for a school student. about Maria engaging in brief period of time. §Peggy is outraged when Alexander promiscuous sexual relationships, §With the help and encouragement invites Maria to make a TikTok dance that she has AIDS and is pregnant. of her therapist, Maria files a Title video with him. § Other students join in with Peggy IX complaint against Peggy

292 293 294

Hypothetical Decision-Making Process Exchanging Written Questions

§Guidance Counselor Aaron Burr has investigated Maria’s complaint, and §At the outset, Respondent still presumed to be §The parties may pose written, relevant has completed his written report. not-responsible. questions to any party or witness. §John Adams is the Minuteman principal and the designated §Decision-Maker cannot be the same person as §Decision-Maker must determine if questions decision-maker for this complaint. the Title IX Coordinator or the Investigator. seek relevant information §He is working through the process to make his decision…… §No live hearing required for K-12 school districts.

295 © 2020 KSB School Law, PC, LLO 296 © 2020 KSB School Law, PC, LLO 297

33 12/8/20

Exchanging Written Questions Exchanging Written Questions Hypothetical

§Remember: §Peggy Schuler submits the following • Complainant’s sexual predisposition §If questions are permissible, Decision-Maker questions for Maria: • Isn’t it true that you and Alexander’s –NEVER facilitates the Q&A and provides the answers to TikTok video was banned by the app for • Complainant’s prior sexual behavior the questioner. being too explicit? –UNLESS • How many sexual partners have you had? o Offered to prove that someone other than the respondent §Decision-maker(s) must: • Why did Mark LaFayette break up with you committed the alleged misconduct • provide each party with the answers earlier this year? Was it because you had o Prior behavior with respect to respondent offered to prove consent sex with Alexander? §Decision-Maker must explain to party posing • allow for additional, limited follow-up questions from questions any decision to exclude a question as not each party relevant −What does this mean?

© 2020 KSB School Law, PC, LLO 298 299 300

Hypothetical Hypothetical Hypothetical

§Maria submits the following §Which questions should John §Which questions should John Adams questions for Peggy: allow? Adams allow? • TikTok video ban? • Did Angelica Church (another student) obtain a restraining order against you • TikTok video ban? • Number of sexual partners? after you threatened her for dating • Number of sexual partners? • Mark LaFayette breakup? John Laurens, a boy for whom you had • Restraining order? feelings? • Mark LaFayette breakup? • Restraining order? • Disciplinary referrals? • How many disciplinary referrals have §How does John Adams communicate you received while a student at • Disciplinary referrals? Minuteman Middle School? these limits?

301 302 303

Required Contents of Timelines Written Determination Written Determination

§The Decision-Maker determines whether the §First: make sure to identify what this §Regulations are silent about how long Q&A should last Respondent is responsible for the alleged document is and the relevant dates: • Give the parties reasonable deadlines to submit and sexual harassment answer questions and follow up questions (2-3 days?) • Only waive Q&A deadlines for good cause shown §What is the timeline for issuing that determination? §Decision-Maker must wait at least 10 days before issuing decision

© 2020 KSB School Law, PC, LLO 305 © 2020 KSB School Law, PC, LLO 306

34 12/8/20

Required Contents of Required Contents of Written Determination Written Determination Written Determination

§Second: Identify each one of the allegations §Third: Describe the procedural steps taken by §For procedural steps, include at least: potentially constituting sexual harassment the district from the time that it received the • any notifications to the parties, formal complaint until the determination. • interviews with parties and witnesses, • site visits, • methods used to gather other evidence, and • process of exchanging questions.

© 2020 KSB School Law, PC, LLO 307 © 2020 KSB School Law, PC, LLO 308 © 2020 KSB School Law, PC, LLO 309

Written Determination Written Determination Written Determination

§Fourth: make findings of facts: §Fourth: make findings of facts: §Fourth: make findings of facts: • Credibility determinations • Credibility determinations • Credibility determinations –Who does Decision-Maker believe, disbelieve? • Conclude (for the district) what happened –Decision-Maker can make credibility determinations

© 2020 KSB School Law, PC, LLO 310 © 2020 KSB School Law, PC, LLO 311 © 2020 KSB School Law, PC, LLO 312

Written Determination Written Determination Written Determination

§Fifth: go back to each allegation of sex §Sixth: determine whether the district’s code of §Seventh: identify responsive actions harassment conduct applies to the facts as you have found • Include: • For each allegation, say whether you find the them –whether remedies designed to restore or preserve respondent responsible and why. equal access to the district’s education program or activity will be provided by the district to the complainant.

© 2020 KSB School Law, PC, LLO 313 © 2020 KSB School Law, PC, LLO 314 © 2020 KSB School Law, PC, LLO 315

35 12/8/20

Written Determination Written Determination Imposing Student Discipline

§Eighth: lay out the parties’ right to appeal §State the district’s procedures and permissible §District still must comply with state law bases for the parties to appeal. §When can student discipline be imposed? §Provided to the parties simultaneously. • At the end of the Title IX Grievance process • Role of determination of responsibility in student §Becomes final either on the date that the discipline district provides the parties with the written determination of the result of the appeal (if §Who can impose discipline / start the process? one is filed) or on the date that an appeal §What discipline can be imposed? would no longer be timely. §What process must be followed?

© 2020 KSB School Law, PC, LLO 316 © 2020 KSB School Law, PC, LLO 317 © 2020 KSB School Law, PC, LLO 318

Hypothetical Hypothetical Hypothetical

§John Adams has reviewed Aaron §John Adams thinks it is extremely likely that Peggy §John Adams thinks it is extremely likely that Peggy engaged Burr’s report and the responses to engaged in sex harassment of Maria. in sex harassment of Maria. that report from Peggy and Maria. §What issues should he address in his report? §What issues should he make findings of fact about in his • The TikTok video? report? §He concludes that it is 51% likely • The girls’ mutual romantic interest in Alexander? • The TikTok video? that Peggy did the things Maria • Calling Maria “slut” and ”whore” • The girls’ mutual romantic interest in Alexander? alleges. • Promiscuity/pregnancy/AIDS rumors? • Calling Maria “slut” and ”whore” • Finding of responsibility or no • Other students? • Promiscuity/pregnancy/AIDS rumors? responsibility? • Psychological effect? • Other students?

319 320 321

Title IX Team Training: Hypothetical Appealing the Decision Disclaimers

§John Adams thinks it is extremely likely that Peggy engaged § KSB School Law represents only public schools and related entities (like Educational in sex harassment of Maria. Service Units). • We DO NOT represent individual teachers, students, parents, or district §What issues should he make findings of fact about address in his report? employees. • The TikTok video? § This presentation and these slides DO NOT constitute legal advice—they are for • The girls’ mutual romantic interest in Alexander? training purposes only. Any questions about your obligations or specific situations • Calling Maria “slut” and ”whore” should be discussed with your legal counsel. • Promiscuity/pregnancy/AIDS rumors? § Neither this presentation nor these slides shall be construed to create an attorney- • Other students? client relationship between you and KSB School Law or between you and us. § You should have no expectation of confidentiality or that anything that discussed is privileged. § Material discussed in this training is explicit.

322 © 2020 KSB School Law, PC, LLO 323 © 2020 KSB School Law, PC, LLO 324

36 12/8/20

Appeals Overview of Grievance Process Who can appeal?

Informal Resolution §Decision must make clear

Sex General Formal Harassment Responses Complaint Investigation Decision Appeal each party has this right •Complainant has just as much right to appeal a determination of non- This Photo by Unknown Author is licensed under CC BY-NC-ND responsibility as vice- versa

© 2020 KSB School Law, PC, LLO 325 © 2020 KSB School Law, PC, LLO 326 © 2020 KSB School Law, PC, LLO 327

When can a decision be When can a decision be When a decision can be appealed? appealed? appealed—procedural issues §Three mandatory grounds*: §Procedural issues • Procedural issue §Regardless of grounds used, • Party appealing must • New evidence appellant must show the issue • Bias/conflict of interest show how the §Recipient can add grounds, but must apply them actually affected the outcome procedural irregularity equally to both parties affected the outcome §Will be a common reason to * Both parties can also appeal a recipient’s determination that the allegations were subject to mandatory dismissal under § dismiss appeals 106.45(b)(3)(i).

© 2020 KSB School Law, PC, LLO 328 © 2020 KSB School Law, PC, LLO 329 © 2020 KSB School Law, PC, LLO 330

When a decision can be When a decision can be appealed—new evidence appealed—Bias/Conflict Appellate Decision-Maker

§New evidence §Bias/conflict of interest • Must have been able to alter the outcome • Must have not been “reasonably available” at the time §Must have affected of the determination or dismissal outcome §Example §Example • A witness comes forward with testimony after a • Complainant becomes determination was made that he saw respondent somewhere else at the time of the alleged assault aware after decision that • No one was aware of the witness’s testimony until he respondent is related to the came forward TixC Superintendent George Washington © 2020 KSB School Law, PC, LLO 331 © 2020 KSB School Law, PC, LLO 332

37 12/8/20

Appeal Decision-Maker Appeal Procedure Drafting the Appeal Decision

§Cannot be the TixC, investigator, or D-M §KSB Policy allows for up to ten days to bring §Framed similarly to §Must be free of bias and conflicts of interest appeal original decision §Must issue written decision and submit it to §Must notify other party when appeal is brought §More streamlined both parties simultaneously §Each party must have an opportunity to submit • Less emphasis on all the a written statement either in support of or facts required against the decision

© 2020 KSB School Law, PC, LLO 334 © 2020 KSB School Law, PC, LLO 335 © 2020 KSB School Law, PC, LLO 336

Drafting the Appeal Decision Drafting the Appeal Decision Drafting the Appeal Decision

§First: make sure to identify what this Second: Identify and describe the arguments for Third: Describe the procedural steps from time of document is and the relevant dates: appeal complaint to time of drafting decision

© 2020 KSB School Law, PC, LLO 337 © 2020 KSB School Law, PC, LLO 338 © 2020 KSB School Law, PC, LLO 339

Drafting the Appeal Decision Drafting the Appeal Decision Drafting the Appeal Decision

Fourth: Summarize decision and its rationale. Fifth: Analyze whether outcome was affected by Sixth: Grant or reject the appeal and state your claimed error: rationale for doing so. • If not, appeal can be dismissed

© 2020 KSB School Law, PC, LLO 340 © 2020 KSB School Law, PC, LLO 341 © 2020 KSB School Law, PC, LLO 342

38 12/8/20

Appeals Hypo-- Appeals Hypo-- Appeals Hypo--

§Angelica Church accused Alexander §Angelica wishes to appeal on the §Angelica wishes to appeal on the Hamilton of sexual assault and filed following grounds: following grounds (more): a formal complaint with the TixC • The investigation yielded a video • A witness came to the complainant recording of the assault and the after the decision was made. This §After the investigation concluded, decision does not mention it person claimed may have possibly Lincoln High School Principal seen the Respondent somewhere Thomas Jefferson submitted his • The school only gave her the notice other than where he said he was the decision to the parties three days of her interview only a few hours ago. He made a finding of non- prior to the scheduled time night of the complaint responsibility

© 2020 KSB School Law, PC, LLO 343 © 2020 KSB School Law, PC, LLO 344 © 2020 KSB School Law, PC, LLO 345

Appeals Hypo-- Appeals Hypo-- Appeals Hypo--

§Angelica wishes to appeal on the §What should the General do? §The investigation yielded a video recording of the following grounds (still more): assault and the decision does not mention it • The investigator submitted his report §Step 1: Solicit a response from Hamilton • Does this fall under one of the three? Did it eight days after the complaint was • 34 C.F.R. 106.45(b)(8)(D) says you must “Give both parties a affect outcome? filed reasonable, equal opportunity to submit a written statement §The school only gave her the notice of her in support of, or challenging, the outcome” interview only a few hours prior to the scheduled • The TixC is in Rotary Club with the §Step 2: Look at each grounds for appeal time respondent’s mother • Does this fall under one of the three? Did it • Does it fall under one of the three grounds? affect outcome? • Did it affect the outcome of the decision?

© 2020 KSB School Law, PC, LLO 346 © 2020 KSB School Law, PC, LLO 347 © 2020 KSB School Law, PC, LLO 348

So What Does Superintendent Appeals Hypo-- Appeals Hypo-- Washington Do Here?

§Written report could reverse determination of non- §A witness came to the complainant after the §The investigator submitted his report eight days responsibility based on: decision was made. This person claimed may after the complaint was filed • Video? • Interview Notice? have possibly seen the Respondent somewhere • Does this fall under one of the three? Did it §Regardless of his decision, Washington must: other than where he said he was the night of the • Create a written report describing the result of the appeal affect outcome? and the rationale for the result complaint §The TixC is in Rotary Club with the respondent’s • Provide it to both parties simultaneously • (and remember, he cannot tell a lie….) • Does this fall under one of the three? Did it mother affect outcome? • Does this fall under one of the three? Did it affect outcome?

© 2020 KSB School Law, PC, LLO 349 © 2020 KSB School Law, PC, LLO 350

39 12/8/20

Title IX Team Training: Avoiding Bias and Conflicts of Interest Disclaimers Session Overview

§ KSB School Law represents only public schools and related entities (like Educational Service Units). §Requirement of Impartiality • We DO NOT represent individual teachers, students, parents, or district employees. §Correcting an Overcorrection § This presentation and these slides DO NOT constitute legal advice—they are for training purposes only. Any questions about your obligations or specific situations §Conflicts of Interests should be discussed with your legal counsel. §Prejudgment and Bias § Neither this presentation nor these slides shall be construed to create an attorney- client relationship between you and KSB School Law or between you and us. § You should have no expectation of confidentiality or that anything that discussed is privileged. § Material discussed in this training is explicit.

© 2020 KSB School Law, PC, LLO 352 © 2020 KSB School Law, PC, LLO 353

Overview of Grievance Process Requirement of Impartiality Requirement of Impartiality

Bias and Conflict of Interest “A recipient’s grievance process must . . . Require “. . . A recipient must ensure that Title IX Coordinators, that any individual designated by a recipient as a investigators, decision-makers, and any person who Sex General Formal Title IX Coordinator, investigator, decision-maker, or Investigation Decision Appeal facilitates an informal resolution process, receive training Harassment Responses Complaint any person designated by a recipient to facilitate an on . . . how to conduct an investigation and grievance informal resolution process, not have a conflict of process including hearings, appeals, and informal interest or bias for or against complainants or resolution processes, as applicable, and how to serve respondents generally or an individual complainant impartially, including by avoiding prejudgment of the facts or respondent.” at issue, conflicts of interest, and bias.” • 34 C.F.R. § 106.45 (b)(1)(iii) • 34 C.F.R. § 106.45 (b)(1)(iii)

© 2020 KSB School Law, PC, LLO 355

Requirement of Impartiality Requirement of Impartiality Required Basis of Appeal

“Any materials used to train Title IX Coordinators, “A recipient must offer both parties an appeal from a investigators, decision-makers, and any person who “A recipient’s grievance process must . . . require determination regarding responsibility, and from a recipients dismissal of a formal complaint or any allegations therein, on facilitates an informal resolution process, must not an objective evaluation of all relevant evidence – including both inculpatory and exculpatory the following bases . . . the Title IX Coordinator, rely on sex stereotypes and must promote impartial investigator(s), or decision-maker(s) had a conflict of interest investigations and adjudications of formal complaints evidence – and provide that credibility or bias for or against complainants or respondents generally of sexual harassment.” determinations may not be based on a person’s or the individual complainant or respondent that affected the status as a complaint, respondent, or witness.” outcome of the matter.” • 34 C.F.R. § 106.45 (b)(1)(iii) • 34 C.F.R. § 106.45(b)(1)(ii) • 34 C.F.R. § 106.45(b)(8)

40 12/8/20

Doe v. Columbia Univ. At All Stages Correcting an Overcorrection 831 F.3d 46 (2nd Cir. 2016)

§ Beginning of 2013-2014 school year, John Doe received notice of allegations of “Every Title IX Coordinator must be free from conflicts of interest and Department of Education cited three main purposes sexual assault against him regarding incident from previous school year bias and, under revised § 106.45(b)(1)(iii), trained in how to serve impartially and avoid prejudgment of the facts at issue. No recipient is of the regulations in its commentary, including to § John Doe called in for meeting; Univ. issued order barring him from contact with permitted to ignore a sexual harassment report, regardless of the “avoid intentional or unintentional injection of sex- victim and restricting access to residence halls identity of the person alleged to have been victimized, and whether or based biases and stereotypes into proceedings that § John Doe alleges Title IX investigator was not gender neutral; responded with not a school administrator might be inclined to apply harmful too often have been biased for or against parties on hostility when told encounter was consensual and witnesses would corroborate stereotypes against believing complainants generally or based on the the basis of sex, mostly because the underlying • Claims investigator failed to further look into his account or to interview or follow up with com plainant’s personal characteristics or identity. The Department will allegations at issue involve issues of sex-based witnesses enforce the final regulations vigorously to ensure that each complainant • Claims investigator’s questioning was like cross examination, and he was not informed of receives the response owed to them by the recipient.” conduct.” any right to submit a statement or seek an advocate; not provided supports • 85 FR 30026 • 85 FR 30026

Doe v. Columbia Univ. Doe v. Columbia Univ. Doe v. Columbia Univ. 831 F.3d 46 (2nd Cir. 2016) 831 F.3d 46 (2nd Cir. 2016) 831 F.3d 46 (2nd Cir. 2016)

§After two-hour hearing, John Doe found responsible and suspended §2nd Cir.: Plaintiff plead sufficient facts to support plausible inference § John Doe then reported to admin that Complainant’s friends were harassing him of sex discrimination and assaulted him, but his complaint wasn’t taken seriously 1.5 years, denied credit for Spring • John Doe appealed • “It alleges that Columbia’s hearing panel . . . were all motivated . . . by pro- § John Doe met with investigator regarding initial report; attempted to correct female, anti-male bias. Those alleged biased attitudes were, at least in part, what he saw as errors and bias in report • Jane Doe appealed to have sanctions lightened adopted to refute criticisms circulating in the student body and in the public • Given form to respond • Appeals rejected and sanction upheld; deemed that it was within press that Columbia was turning a blind eye to female students' charges of investigator discretion not to interview witnesses sexual assaults by male students. . . When the evidence substantially favors § While investigation/hearing was pending, University was facing complaints that one party's version of a disputed matter, but an evaluator forms a conclusion it was not taking complaints of sexual harassment sufficiently seriously and was §John Doe filed suit alleging violation of his rights under in favor of the other side (without an apparent reason based in the too lenient on aggressors evidence), it is plausible to infer (although by no means necessarily correct) Title IX that the evaluator has been influenced by bias.” § Disciplinary hearing held, but John Doe not given opportunity to prepare • District court granted University’s motion to dismiss

Doe v. Columbia Univ. 831 F.3d 46 (2nd Cir. 2016) Determining Conflicts and Bias Determining Bias

§2nd Cir.: Plaintiff plead sufficient facts to support plausible inference § Department specifically chose not to further define conflicts of interest or bias despite of sex discrimination requests from commenters “Whether bias exists requires examination of the • Indicated that training on serving impartially would ensure that Title IX Team was not impermissibly • “It alleges that Columbia’s hearing panel . . . were all motivated . . . by pro- biased or conflicted particular facts of a situation ...... and the female, anti-male bias. Those alleged biased attitudes were, at least in part, adopted to refute criticisms circulating in the student body and in the public § Generally, in the Title IX context... Department encourages recipients to apply an press that Columbia was turning a blind eye to female students' charges of • A conflict of interest occurs when an individual’s interests raise a serious question as to whether they sexual assaults by male students. . . When the evidence substantially favors can act objectively and without bias should they need to act against those interests objective (whether a reasonable person would one party's version of a disputed matter, but an evaluator forms a conclusion • Bias is the inability to maintain objectivity, due to some inclination or prejudice towards or against believe bias exists), common sense approach to in favor of the other side (without an apparent reason based in the an individual, characteristic, or circumstance evidence), it is plausible to infer (although by no means necessarily correct) • Prejudgment refers to passing judgment prematurely or without sufficient objective consideration evaluating whether a particular person serving in a that the evaluator has been influenced by bias.” § Serving multiple roles (if permitted by the regs) does not create a conflict Title IX role is biased…” • 85 FR 30026

41 12/8/20

Determining Bias Determining Bias Determining Bias

“…exercising caution not to apply generalizations that “ . . . bearing in mind that the very training required by “Whether bias exists requires examination of the might unreasonably conclude that bias exists (for § 106.45(b)(1)(iii) is intended to provide Title IX particular facts of a situation ...... and the example, assuming that all self-professed feminists, or personnel with the tools needed to serve impartially Department encourages recipients to apply an self-described survivors, are biased against men, or that and without bias such that the prior professional objective (whether a reasonable person would a male is incapable of being sensitive to women, or that experience of a person whom a recipient would like to believe bias exists), common sense approach to prior work as a victim advocate, or as a defense attorney, have in a Title IX role need not disqualify the person renders the person biased for or against complainants or from obtaining the requisite training to serve impartially evaluating whether a particular person serving in a respondents)…” Title IX role is biased…” in a Title IX role.” • 85 FR 30026 • 85 FR 30026 • 85 FR 30026

Hypothetical Hypothetical Coordinator Signing Complaint

§Title IX Coordinator Madison receives notice of alleged §One of the Respondents complains Dolley Madison §Title IX Coordinator has discretion to sign formal complaint sexual assault, but no formal complaint filed cannot investigate because: initiating grievance procedure • Dolley determines that an appropriate response requires formal • Must do so if you would otherwise be deliberately indifferent grievance procedure, so she signs formal complaint to initiate • She has a conflict of interest the process • She is a party to the complaint §Signing complaint does not indicate predetermination as to truth; §One of several parties to formal complaint is Theodosia must avoid predetermination at that stage Burr (Investigator Aaron Burr’s daughter) §Is the Respondent right? §Signing complaint does not make Title IX Coordinator the • Investigator Burr recuses himself from grievance procedure; complainant • Dolley Madison is assigned to investigate the complaint in Mr. • Does not preclude Title IX Coordinator from serving as the Burr’s place investigator

Hypothetical Bias or Conflict Issues? Bias or Conflict Issues?

§One of the Respondents complains Dolley Madison §HS Principal, and HS Decision-Maker, Thomas §Teacher Abigail Adams is the respondent in a cannot investigate because: Jefferson is the head football coach; Title IX complaint from a middle school student; • She has a conflict of interest respondent in formal complaint is the star Middle School Principal John Adams is generally decision-maker for middle school complaints • She is a party to the complaint quarterback (and yes, it’s football season) §Investigator Burr, months after watching this Title §Is the Respondent right? §Appellate Decision-Maker and Superintendent IX training module, is often heard in the staff George Washington is direct supervisor, and lounge bemoaning the #MeToo movement and evaluator of, all employees trained to serve as suggesting that “most of the time, they’re just investigator and decision-maker making it up.”

42 12/8/20

Bias or Conflict Issues? Bias Bias Formation

§ The advocate for a complainant is a well-known women’s §Bias formation is a natural neurological response to rights attorney, who very recently represented a high stimuli profile client whose claims were proven to be false. In §Often considered in terms of implicit and explicit biases that case, public perception is that the attorney • Implicit biases are subconscious associations/prejudices/ §Begins in the early stages of development repeatedly misrepresented the underlying facts in order shortcuts/reactions our brains default to in order to more • Studies show babies show preference for race/ethnicity of to benefit his client and attempt to force a quick caregivers as young as 4 months efficiently process information settlement. Decision-maker Sally Hemmings is • Bias leads to prejudices towards in-groups and other like concerned that the advocate would make similar −More efficiently, not more effectively or more accurately individuals misrepresentations in this hearing process, and is −Not necessarily discriminatory §Biases are then affirmed or disaffirmed through life annoyed the Complainant would bring such a high-profile • Biases become explicit when you become consciously aware attorney to put a national spotlight on the district. experiences of them and choose to act on them

Requirement of Impartiality National Statistical Trends Including Bias Against...

“Department will vigorously enforce the final regulations in a “Department will vigorously enforce the final regulations in a manner that holds recipients responsible for responding to manner that holds recipients responsible for responding to complainants, and treating all parties during any § 106.45 complainants, and treating all parties during any § 106.45 grievance process, impartially without prejudgment of the grievance process, impartially without prejudgment of the facts at issue or bias, including bias against an individual’s facts at issue or bias, including bias against an individual’s sex, race, ethnicity, sexual orientation, gender identity, sex, race, ethnicity, sexual orientation, gender identity, disability or immigration status, financial ability, or other disability or immigration status, financial ability, or other characteristic.” characteristic.” • 85 FR 30026 • 85 FR 30026

Boys won’t be boys... Hypothetical Hypothetical

“It would be inappropriate for a Title IX Coordinator to evaluate §Title IX Coordinator Madison receives an email § Mark Lafayette is a Senior best known for breaking Thomas conduct for objective offensiveness by shrugging off unwelcome from Angelica Church Top ham ’s school records in weight lifting, and for being the • “Mrs. Madison, as Activities Director I thought you Class A wrestling champion three years straight conduct as simply “boys being boys” or make similar assumptions should know that the lacrosse team is making us based on bias or prejudice. To take that approach would risk underclassmen do some pretty horrible stuff as part of § He comes to Title IX Coordinator Madison to talk about an evidencing sex-based bias in contravention of § 106.45(a) or bias this year’s initiations. The coaches just look the other incident where he says his girlfriend, the petite and docile way, but things are getting taken really too far. Last for or against a complainant or respondent in violation of § week, Maria held us freshman down while Peggy Angelica Church, pinned him down and sexually assaulted him 106.45(b)(1)(iii), in addition to indicating improper evaluation of shoved her crosse up our you know whats and even § Normally, Coordinator Madison would sign a complaint given the Davis elements under a reasonable person standard.” made Anne bleed. Can you do something? [Signed with Angelica’s email signature.]” these facts, but is hesitant because it seems far fetched that • 85 FR 30026 Angelica could have taken advantage of Lafayette

43 12/8/20

Including Bias Against... Bias and Prejudgments Disciplinary Discrepancies

“Department will vigorously enforce the final regulations in a §Compared to white children, data from OCR in 2016 manner that holds recipients responsible for responding to “The Department shares the concerns of commenters indicates that black children are: complainants, and treating all parties during any § 106.45 who asserted, and cited to data and articles showing, • 3.6x more likely to receive an out-of-school suspension in grievance process, impartially without prejudgment of the that some complainants, including or especially girls preschool facts at issue or bias, including bias against an individual’s • 3.8x more likely to receive an out-of-school suspension in sex, race, ethnicity, sexual orientation, gender identity, of color, face school-level responses to their reports K-12 disability or immigration status, financial ability, or other of sexual harassment infected by bias, prejudice, or • 2.2x more likely to be referred to law enforcement or characteristic.” stereotypes.” subject to a school-related arrest • 85 FR 30026 • 85 FR 30026 §Data continually corroborated by state reports

Related to Bias Other Discrepancies Including Bias Against...

§Research from 2019 by the Proceedings of the National Academy §Research from Children and Youth Services Review “Department will vigorously enforce the final regulations in a of Sciences found that the discrepancies on the basis of • Engaged in phycological measurements of racial biases (implicit and race/ethnicity are pervasive in non-disciplinary and manner that holds recipients responsible for responding to explicit) by population group to determine associations with disparate complainants, and treating all parties during any § 106.45 outcomes non-exclusionary interventions grievance process, impartially without prejudgment of the • Found county-level rates of implicit and explicit bias are highly • Black students less likely than White students to be facts at issue or bias, including bias against an individual’s correlated warned about behavior sex, race, ethnicity, sexual orientation, gender identity, • The more biased an area was, the higher the disproportionality in • Black boys are less likely to be warned than White boys disability or immigration status, financial ability, or other discipline or girls characteristic.” • The less explicit bias, the more effect of implicit bias • Consequences escalated at faster rate for these students • 85 FR 30026

Sexual Orientation and Gender Identity Including Bias Against... Including Bias Against...

§Bostock indicates that discrimination/harassment on “Department will vigorously enforce the final regulations in a “Department will vigorously enforce the final regulations in a the basis of one’s sexual orientation or gender manner that holds recipients responsible for responding to manner that holds recipients responsible for responding to identity constitutes discrimination on the basis of complainants, and treating all parties during any § 106.45 complainants, and treating all parties during any § 106.45 sex grievance process, impartially without prejudgment of the grievance process, impartially without prejudgment of the facts at issue or bias, including bias against an individual’s facts at issue or bias, including bias against an individual’s §These characteristics subject to unique biases and sex, race, ethnicity, sexual orientation, gender identity, sex, race, ethnicity, sexual orientation, gender identity, prejudices disability or immigration status, financial ability, or other disability or immigration status, financial ability, or other §You cannot treat claims differently simply because characteristic.” characteristic.” all parties are members of the same sex • 85 FR 30026 • 85 FR 30026

44 12/8/20

Income Disparities Including Bias Against... Other Characteristics

§Researchers in several states find disparities in “Department will vigorously enforce the final regulations in a §Biases or assumptions about athletes were prevalent in discipline for students with lower family income manner that holds recipients responsible for responding to suits alleging bias in Title IX proceedings • Not commensurate to, but also not unlike, the disparities on complainants, and treating all parties during any § 106.45 the basis of race and ethnicity grievance process, impartially without prejudgment of the §Social statuses, ability to communicate effectively, −In fact, research indicates lower family income exacerbates disparities for appearance all shown to affect credibility determinations minority students facts at issue or bias, including bias against an individual’s • Occurs on the micro and macro levels sex, race, ethnicity, sexual orientation, gender identity, and general reactions to an individual −Schools with high poverty rates overall engage in harsher disciplinary practices disability or immigration status, financial ability, or other §Biases towards an individual, including those founded on −Within schools, students of lower income treated with harsher disciplinary characteristic.” practices prior history or issues, cannot affect decision-making • 85 FR 30026

Are you biased? Strategies to Serve Without Bias Strategies to Serve Without Bias

§In the literal sense, yes, we all are... In the Title IX context... §Improve decision-making with Title IX’s systematic §Stereotype Replacement: replace automatic stereotypical response • Can you objectively serve in your role without predetermination, basing any approach with new, automatic, non-stereotypical response decisions on the facts and investigating further when necessary? • Slow down and remove the discretion, ambiguity, and • Recognize a response as stereotypical; • Can you apply the concepts and meet the obligations described in this training subjectivity from decision making processes • Label response as stereotypical an consider source/reason underlying while fulfilling your role? response; • Can you consistently apply the definitions and due process rights while • Implement grievance procedure processes and definitions with • Consider alternate responses fulfilling your role? fidelity and consistency • Will you allow the prescribed grievance process to drive the role you play, and −In doing so, abide by roles and associated limitations, such as leaving all credibility §Counter-Stereotypic Imaging: create an opposite image of a the manner in which the issues are determined? determinations to the decision maker stereotype in your mind • If yes to all... serve your role consistent with applicable requirements • Carefully document decision making processes and • Intended to challenge stereotype and make a positive association with • If no to any... recuse yourself from the grievance process considerations for later steps and potential review counter-stereotype

Strategies to Serve Without Bias General Recommendations Hypothetical

§Carefully follow grievance process §Individuation: give individuality to persons in a group §Title IX Coordinator Madison receives an email §Consistently apply definitions from Angelica Church • Intended to prevent making biased inferences on basis of sex, race, sexual • “Mrs. Madison, as Activities Director I thought you orientation, etc. §Rely only on objective interpretations of documented evidence should know that the lacrosse team is making us • Requires obtaining information about individual members of a group §Actively assess and consider your implicit and explicit biases and underclassmen do some pretty horrible stuff as part of instead of relying on generalizations this year’s initiations. The coaches just look the other correct as necessary with strategies way, but things are getting taken really too far. Last §Perspective Taking: take a first-person perspective towards groups • https://implicit.Harvard.edu/implicit/selectatest.html week, Maria held us freshman down while Peggy to promote empathy and understanding shoved her crosse up our you know whats and even §Take an objective approach to determining conflicts and bias made Anne bleed. Can you do something? [Signed §Increased Opportunities for Contact: seek out opportunities to with Angelica’s email signature.]” engage with stigmatized groups in a positive manner

45 12/8/20

Title IX Team Training: Hypothetical Confidentiality and Retaliation Disclaimers

§ KSB School Law represents only public schools and related entities (like Educational § Mark Lafayette is a Senior best known for breaking Thomas Top ham ’s school records in weight lifting, and for being the Service Units). Class A wrestling champion three years straight • We DO NOT represent individual teachers, students, parents, or district employees. § He comes to Title IX Coordinator Madison to talk about an § This presentation and these slides DO NOT constitute legal advice—they are for incident where he says his girlfriend, the petite and docile training purposes only. Any questions about your obligations or specific situations Angelica Church, pinned him down and sexually assaulted him should be discussed with your legal counsel. § Normally, Coordinator Madison would sign a complaint given § Neither this presentation nor these slides shall be construed to create an attorney- these facts, but is hesitant because it seems far fetched that client relationship between you and KSB School Law or between you and us. Angelica could have taken advantage of Lafayette § You should have no expectation of confidentiality or that anything that discussed is privileged. § Material discussed in this training is explicit.

© 2020 KSB School Law, PC, LLO 407 © 2020 KSB School Law, PC, LLO 408

Medical, Psychological and Other Plan for Today Treatment Records Privileged Information

§Medical, Psychological and Other Treatment Records “[T]he recipient cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or “A recipient’s grievance process must . . . not §Privileged Information other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and require, allow, rely upon, or otherwise use questions §Confidentiality and Access to Evidence and Records maintained in connection with the provision of treatment to the party, unless the or evidence that constitute, or seek disclosure of, recipient obtains that party’s voluntary, written consent to do so for a grievance §Non-Disclosure Agreements process under this section (if a party is not [a student who has reached 18 years information protected under a legally recognized §First Amendment and Retaliation of age or is attending an institution of postsecondary education] then the recipient privilege, unless the person holding such privilege must obtain the voluntary, written consent of a “parent,” as defined in 34 CFR has waived the privilege.” §Reporting Child Abuse in Nebraska 99.3).” • 34 C.F.R. § 106.45(b)(5)(i) • 34 C.F.R. § 106.45(b)(1)(x)

Title IX Confidentiality Requirements Title IX Confidentiality Requirements Title IX Confidentiality Requirements

The recipient must keep confidential the identity of any individual who The recipient must keep confidential the identity of any individual who The recipient must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any has made a report or complaint of sex discrimination, including any has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual individual who has made a report or filed a formal complaint of sexual individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to harassment, any complainant, any individual who has been reported to harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any be the perpetrator of sex discrimination, any respondent, and any be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute, 20 U.S.C. witness, except as may be permitted by the FERPA statute, 20 U.S.C. witness, except as may be permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any carry out the purposes of 34 CFR part 106, including the conduct of any carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. investigation, hearing, or judicial proceeding arising thereunder. investigation, hearing, or judicial proceeding arising thereunder. • 34 C.F.R. § 106.71(a) • 34 C.F.R. § 106.71(a) • 34 C.F.R. § 106.71(a)

46 12/8/20

FERPA Confidentiality Requirements Education Records Education Records

§FERPA requires school districts to maintain the §An education record is defined by FERPA to include, with §An education record is defined by FERPA to include, with confidentiality of personally identifiable information limited exemptions, any records that contain personally limited exemptions, any records that contain personally • Generally requires written parental consent prior to identifiable information directly related to a student and identifiable information directly related to a student and disclosure, unless an exception applies to permit are maintained by an educational agency or institution are maintained by an educational agency or institution disclosure • Parents and students 18 and older have the right to access the • Parents and students 18 and older have the right to access the education records of their children education records of their children −School official exception −Emergency exception • May seek amendment of records • May seek amendment of records

Education Records Disclosure of Evidence May Limit Downloads and Copies (Under Title IX)

§Must provide both parties an equal opportunity to inspect and review any evidence obtained as part of the §“The Department acknowledges that a recipient may §An education record is defined by FERPA to include, with limited exemptions, any records that contain personally investigation that is directly related to the allegations use, but is not required to use, a file sharing platform raised in a formal complaint that restricts the parties and advisors from identifiable information directly related to a student and • Including the evidence upon which the recipient does not intend downloading or copying evidence.” are maintained by an educational agency or institution to rely in reaching a determination regarding responsibility • 85 FR 30026 • Parents and students 18 and older have the right to access the • And inculpatory or exculpatory evidence education records of their children • Sent to each party in electronic format or a hard copy §BUT check state law (which may require copies of • May seek amendment of records education records or personnel records be provided)

Disclosure of Report and Determination No Inherent Conflict But...

§The Department argues that there is no inherent conflict § “The obligation to comply with this part is not obviated or alleviated by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99.” §Must send to each party and the party’s advisor, if between Title IX and FERPA obligation with respect to the requirements to disclose evidence, reports, and • 34 C.F.R. § 106.6(e) any, the investigative report in an electronic format determinations § “To the extent that there may be unusual circumstances, where a true conflict or a hard copy, for their review and written response between Title IX and FERPA may exist (such as a student’s formal complaint • Because everything required to be disclosed “directly relates” to against an employee), the Department includes a provision in § 106.6(e) to §Must provide the written determination to each party both parties to the dispute (if parties are students) expressly state that the obligation to comply with these final regulations under simultaneously −Consistent with long standing guidance on video footage of altercations Title IX is not obviated or alleviated by the FERPA statute or regulations.” 85 FR 30026 • 85 FR 30026

47 12/8/20

Hypo Why? Non-Disclosure Agreements (NDAs)

§ Alexander Hamilton, an 8th grader, filed a formal complaint against Paul Revere, the janitor, alleging that Paul Revere “The Department is precluded from administering, forcibly fondled him on August 18 in the school stables “The Department does not interpret Title IX as either requiring enforcing, and interpreting statutes, including Title IX recipients to, or prohibiting recipients from, using a non- § Investigator Aaron Burr pulled Alexander’s attendance and FERPA, in a manner that would require a records for the day in question, and they show that he was disclosure agreement, as long as such non-disclosure absent on the 18th recipient to deny the parties, including employee- agreement does not restrict the ability of either party to discuss • He also reviewed security footage, which does not show respondents, their constitutional right to due process Alexander in the stable area on the day in question because the Department, as an agency of the Federal the allegations under investigation or to gather and present § Alexander’s parents have e-mailed investigator Burr, government, is subject to the U.S. Constitution.” relevant evidence under § 106.45(b)(5)(iii). Any non-disclosure informing him that their son’s attendance records and any agreement, however, must comply with all applicable laws.” video used in the investigation are protected by FERPA and • 85 FR 30026 they will not consent to disclosure • 85 FR 30026

Hypo Subject to the First Amendment... First Amendment Generally

§Same facts as before “Constitutional protections. Nothing in this part requires a recipient to . . . restrict any rights that would otherwise be protected from §“Congress shall make no law . . . abridging the freedom of speech.” §To ease the privacy concerns of Mr. and Mrs. Hamilton, government action by the First Amendment of the U.S. Constitution.” • 34 C.F.R. § 106.6(d) • Incorporated to apply to public schools and other state/local government Investigator Burr requests that the parties sign a non- bodies under 14th Amendment disclosure agreement prior to sharing the evidence “The Department may not deem a recipient to have satisfied the §Tinker: Students do not shed first amendment rights at school §Revere signs the agreement, but subsequently discloses recipient’s duty to not be deliberately indifferent under this part based on the recipient’s restriction of rights protected under the U.S. • School cannot suppress student expression unless school officials the evidence to each of his witnesses Constitution, including the First Amendment, Fifth Amendment, and reasonably conclude that it has or will ”materially and substantially disrupt Fourteenth Amendment.” §Revere also refers to the evidence in detail in a long the work and discipline of the school” • 34 C.F.R. § 106.44(a) Facebook post written to publicly “clear his name” • Conduct which involves “invasion of the rights of others” may be regulated

Retaliation Prohibited Retaliation and the First Amendment False Statements not Protected

“Retaliation prohibited. No recipient or other person may intimidate, “Charging an individual with a code of conduct violation for threaten, coerce, or discriminate against any individual for the “To address the commenter’s concerns, the final regulations purpose of interfering with any right or privilege secured by title IX making a materially false statement in bad faith in the also provide that the exercise of rights protected under the course of a grievance proceeding under this part does not or this part, or because the individual has made a report or First Amendment does not constitute retaliation pursuant to complaint, testified, assisted, or participated or refused to participate constitute retaliation prohibited under paragraph (a) of this in any manner in an investigation, proceeding, or hearing under this § 106.71. Threatening to publicize or make a written section, provided, however, that a determination regarding part. . . The exercise of rights protected under the First Amendment determination public for the purpose of retaliation, however, responsibility, alone, is not sufficient to conclude that any does not constitute retaliation. . . .” is strictly prohibited under § 106.71 of these final party made a materially false statement in bad faith.” • 34 C.F.R. § 106.71 regulations.” • 34 C.F.R. § 106.71(b)(2) • 85 FR 30026

48 12/8/20

First Amendment and Defining Sex Bethel Sch. Dist. v. Fraser In Practice Harassment 478 U.S. 675 (1986)

§You may be able to discipline for inappropriate speech under “The Davis definition of sexual harassment as ‘severe, §Student disciplined for innuendo-filled speech Bethel even if it doesn’t rise to severe, pervasive, and pervasive, and objectively offensive’ comports with First §Circuit Court ruled discipline violated First Amendment objectively offensive, but tread lightly Amendment protections, and the way in which a broader • Attendance at event was voluntary §You may discipline for false statements in grievance process, definition, such as severe, persistent, or pervasive (as • No material or substantial disruption long as basis is not simply the result/determination used in the 1997 Guidance and 2001 Guidance), has led to §Supreme Court: Schools may encourage “the §You may require NDAs, but you cannot restrict protected First infringement of rights of free speech and academic fundamental values of habits and manners of civility by Amendment activity or the right to discuss the case and prepare freedom of students and faculty.” insisting that certain modes of expression are a response • 85 FR 30026 inappropriate and subject to sanction.”

Title IX Team Training: Title IX Team Training: Reporting Child Abuse Confidentiality and Retaliation Special Education Considerations

§Reporting child abuse permitted under FERPA • Health and Safety (Emergency) exception to consent §Reporting child abuse may be required by state law • Requirements vary by state • In some states it is “all persons” and others it may also or in the alternative have special or specific obligations for school officials • State law definitions of child abuse may or may not line up with definitions of “sexual harassment” under Title IX

© 2020 KSB School Law, PC, LLO 437 © 2020 KSB School Law, PC, LLO 438

Disclaimers Overview of Grievance Process Plan For Today

§ KSB School Law represents only public schools and related entities (like Educational Informal Resolution Service Units). • We DO NOT represent individual teachers, students, parents, or district Sex General Formal Investigation Decision Appeal employees. Harassment Responses Complaint §Disproportionate Impact on Students with § This presentation and these slides DO NOT constitute legal advice—they are for Disabilities training purposes only. Any questions about your obligations or specific situations should be discussed with your legal counsel. §All Obligations Apply § Neither this presentation nor these slides shall be construed to create an attorney- client relationship between you and KSB School Law or between you and us. §Considerations for Complainants with Disabilities § You should have no expectation of confidentiality or that anything that discussed is privileged. §Considerations for Respondents with Disabilities § Material discussed in this training is explicit.

© 2020 KSB School Law, PC, LLO 439 © 2020 KSB School Law, PC, LLO 440

49 12/8/20

Disproportionate Impact On Disproportionate Impact on Students With Disabilities Students with Disabilities Two Sides of the Coin

§2012 report: Children with disabilities almost 3x more likely to be §Data cited in the comments to the proposed regulations: §Students with disabilities may exhibit sexually aggressive sexually abused • 22 percent of students with disabilities reported some form of or inappropriate behaviors §Report on school sexual maltreatment of 300 students with abuse over the last year • Number of Title IX and other cases related to sexual violence in disabilities (Journal of Child Sexual Abuse) • Nearly 62 percent had experienced some form of physical or • 55% of victims had significant cognitive disabilities sexual abuse before the age of 17 which both aggressor and victim is student with a disability • 68% reported verbal harassment • Only 27 percent reported the incident §Consider school’s obligation to address such behaviors • 62% reported touching, pinching, rubbing • Individuals with intellectual disabilities are sexually assaulted • 30% reported forced intercourse and raped at more than seven times the rate of individuals §Consider school’s limitations in addressing such behaviors • 51% reported abuser was adult; 30% teaching personnel without disabilities • 24.5% said school “did nothing”

All Obligations Apply Running Hypothetical Accommodate throughout Process

§The parents of Maria Reynolds, a student with ASD who is nonverbal, “Recipients’ obligation to comply both with these final regulations and with disability laws applies to all aspects of submit a formal complaint “The Department also fully encourages responding to a Title IX sexual harassment incident including • Alleges that an AngelSense™ device kept in Maria’s backpack captured audio recipients to provide whatever reasonable investigation, discipline, and segregating elementary and of her being sexually harassed every day for over two months by John accommodations are necessary for students secondary school students with disabilities from classroom Laurens, a student with an IEP due to his diagnosis of Tourette’s Syndrome, settings. Nothing in these final regulations precludes or and Mark Lafayette, a student with an IEP due to his diagnosis of dyslexia with disabilities; recipients must comply with impedes a recipient from determining what services may be −Alleges Mark Lafayette made daily, graphic threats of sexual assault before attempting to applicable disability laws while also complying necessary to ensure a safe, welcoming environment for all rape Maria last week students.” −Alleges John Laurens called Maria a “whore” and “slut” several times an hours with these final regulations.” • 85 F.R. 30026 • 85 FR 30026

Running Hypothetical Running Hypothetical Complainants with Disabilities

§John Lauren’s father is serving as §Given Maria’s inability to communicate verbally or engage John’s advisor, and dad is deaf in any activity for an extended §Data suggests that students with disabilities will be §Consider accommodations period of time, her advisor complainants in Title IX process at disproportionate rates throughout process: requested additional time to • Must be unbiased and neutral in reviewing complaint or • Providing transcriptions of audio prepare responses to written considering the filing of a complaint evidence, such as the AngelSense™ questions, evaluate evidence, and recordings prepare a response to the §Must ensure student continues to be provided FAPE • Making available an ASL interpreter in interviews involving the advisor investigator’s report. §Consider obligation to respond to harassment on the basis of disability

50 12/8/20

No Magic Words Supportive Meaures Supportive Measures are Key

§Department commentary emphasizes role of “The process for offering supportive measures after considering the §Investigate reports of misconduct even if it isn’t supportive measures in meeting the needs of complainant’s wishes is an interactive process that is not unlike the initially clear the report is a formal complaint of students with disabilities interactive process that the ADA requires. By ensuring that each sexual harassment complainant is offered supportive measures regardless of whether • “Similarly, recognizing whether a student has disclosed a §Supportive measures, to the extent they change a the reported incident results in a grievance process, more Title IX sexual harassment incident includes taking into student’s placement, must be determined/approved complainants, including individuals with disabilities, can feel safe account any disability the reporting student may have by IEP team or written agreement with parents reporting without fearing that a report automatically leads to that may affect how that student describes or • I.e., if counseling services would remove complainant participation in a grievance process.” communicates about the incident.” from general education setting, must amend IEP §85 FR 30026

M.J.G. v. Sch. Dist. of Philadelphia M.J.G. v. Sch. Dist. of Philadelphia M.J.G. v. Sch. Dist. of Philadelphia 74 IDELR 151 (3rd Cir. 2019) 74 IDELR 151 (3rd Cir. 2019) 74 IDELR 151 (3rd Cir. 2019)

§M.J.G. is a student with ASD and other disabilities §Nearly a year later, M.J.G. reported a second incident with §School implemented another safety plan in response • Additional supervision at lunch • Reported to her mother that while in the school library, a peer with ID took her hand different peer to mother • Separated and monitored students and placed it on his penis; Mom reported to school • Claimed during a game of tag over lunch, aggressor pulled her pants down, blew on her stomach, and put his penis on her • Provided escort during transitions • Teacher met with mom and student to discuss incident; teacher refuted claim • Called for daily communication log and weekly e-mails to mother −Indicated M.J.G. was acting inappropriately and reprimanded, suggested she was reporting as §Mother reported to school and police • Called for IEP meeting to discuss 1:1 supervision attention-seeking behavior §Nonetheless, teacher and school agreed to safety plan §School and police investigated §Mom withdrew M.J.G. and files Title IX and ADA suit • Reviewed security footage • Both require showing of deliberate indifference • Increased supervision • Interviewed witnesses §Summary judgment for school • Changed student’s seating −Conflicting reports as to whether M.J.G. intentionally dropped her pants, but • Implemented by other teachers witnesses all agreed alleged aggressor did not commit assault as M.J.G. reported §3rd Cir.: Affirmed

Running Hypothetical Consent Respondents with Disabilities

§Supportive measures for Maria §Consider compliance with IDEA at all stages, including emergency • IEP team should be involved in determining appropriate supportive measures, as some may change her placement removals, supportive measures, discipline −Any additional counseling services that may remove her from current placement §Review definition of “consent” adopted by your §Respondent must be provided FAPE irrespective of supportive • If you determine separating her from respondents is appropriate, consider board in your policy measures whether you’re changing anyone’s placement or whether you’re changing §Manifestation required prior to disciplinary removals of ten days or location §Consider how a student’s disability affects −Changes in placement for Maria, John, and Mark must be made through IEP process more −Changes in location for Maria, John, and Mark may be made unilaterally his/her ability/capacity to consent to sexual §Contemplate respondent’s need for new placement/services • Consider whether supportive measures require accommodations or impact activity ability to access FAPE §Consider early whether discipline or a change in placement is more • For instance, Maria likely lacks the capacity to appropriate to address misconduct consent to sexual activity

51 12/8/20

Running Hypothetical Emergency Removals Emergency Removals

§Guidance Counselor Aaron Burr is investigating the formal complaint, and believes that Mark Lafayette presents an “Emergency removal. Nothing in this part precludes a recipient from removing “Emergency removal. Nothing in this part precludes a recipient from removing immediate threat to the safety of his peers a respondent from the recipient's education program or activity on an a respondent from the recipient's education program or activity on an emergency basis, provided that the recipient undertakes an individualized emergency basis, provided that the recipient undertakes an individualized • May Mark Lafayette be removed from school? safety and risk analysis, determines that an immediate threat to the physical safety and risk analysis, determines that an immediate threat to the physical • Must we conduct an MDR prior to removal? health or safety of any student or other individual arising from the allegations health or safety of any student or other individual arising from the allegations • Must his IEP Team meet? of sexual harassment justifies removal, and provides the respondent with of sexual harassment justifies removal, and provides the respondent with • Should his IEP Team meet? notice and an opportunity to challenge the decision immediately following the notice and an opportunity to challenge the decision immediately following the §Burr believes that John Laurens is highly likely to continue to removal. This provision may not be construed to modify any rights under the removal. This provision may not be construed to modify any rights under the verbally harass peers during process Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Individuals with Disabilities Education Act, Section 504 of the Rehabilitation • May John Laurens be removed from school? Act of 1973, or the Americans with Disabilities Act.” Act of 1973, or the Americans with Disabilities Act.” • 34 C.F.R. § 106.44(c) • 34 C.F.R. § 106.44(c)

Emergency Removals Running Hypothetical Sticks and Stones

§Guidance Counselor Aaron Burr is investigating the formal complaint, and “As a further example, nothing in § 106.44(c) prevents a believes that Mark Lafayette presents an immediate threat to the safety of recipient from involving a student’s IEP team before making his peers an emergency removal decision, and § 106.44(c) does not • May Mark Lafayette be removed from school? require a recipient to remove a respondent where the −Yes, subject to the requirements of notice and due process §Burr believes that John Laurens is highly likely to recipient has determined that the threat posed by the • Must we conduct an MDR prior to removal? −Check state law... continue to verbally harass peers during process respondent, arising from the sexual harassment allegations, −Required for disciplinary removals; emergency removals may not be disciplinary is a manifestation of a disability such that the recipient’s • Must his IEP Team meet? • May John Laurens be removed from school? discretion to remove the respondent is constrained by IDEA −Guidance indicates the team should meet to consider a revision to his placement/services if he’ll be requirements.” removed for 10+ days −No! Verbal harassment does not present an • 85 FR 30026 −Not explicitly required by regulation, but you still owe FAPE immediate threat to the physical health and safety of others.

Running Hypothetical Discipline Discipline NOT Required

§Both respondents verified under the IDEA, will be subject to “Even when conduct committed by a respondent with a disability constitutes procedural safeguards sexual harassment (e.g., because the conduct constitutes sexual assault, or because the conduct is severe, pervasive, and objectively offensive), the §Title IX Coordinator Dolley Madison is familiar with both §Students with disabilities may be disciplined Department does not second guess whether the recipient imposes a respondents disciplinary sanction on a respondent who is found responsible for sexual • She believes that *if* the allegations are true, John’s alleged misconduct subject to procedural safeguards of the IDEA harassment, and thus recipients have flexibility to carefully consider the kind of consequences that the recipient believes should follow in a situation would have been caused by, or directly related to, his disability §Discipline may only be administered after a final where a respondent with a disability unintentionally committed conduct that • She believes that *if* the allegations are true, Mark’s alleged misconduct constituted sexual harassment, perhaps not realizing the effect of the would not be related to his disability determination of responsibility finds a conduct on the victim.” §Why is this important???? respondent responsible after the formal • 85 FR 30026 grievance procedure

52 12/8/20

Not more than 10 consecutive school Discipline NOT Required 34 CFR § 300.530(b)(1) days

“For example, the recipient could determine that “School personnel... may remove a child with a counseling or behavioral intervention is more appropriate disability who violates a code of student conduct than disciplinary sanctions for a particular respondent. from his or her current placement... for not more §10 consecutive days per offense (We note that in such a circumstance, the complainant is than 10 consecutive school days... and for additional removals of not more than 10 consecutive school §Additional removals in same school year for still entitled to remedies designed to restore or preserve days in that same school year for separate incidents separate incidents of misconduct allowable so the complainant’s equal educational access.)” of misconduct (as long as those removals do not long as not a “pattern of removals” constituting a • 85 FR 30026 constitute a change of placement under § 300.536).” “change in placement”

Major Discipline Manifestation Determination Manifestation Determination

§Removals for more than 10 days §If no: §Was this misbehavior caused by the student’s • Child can be treated like a regular education student consistent §"Expulsion” with state law §Removal for 45 days for special issues disability? • Sort of … §Requires MDR §Was conduct in question caused by or did it have §If yes: • The MDR must be conducted by “the LEA, the parent, and relevant members of the child’s IEP Team (as determined by the parent and the LEA).” 34 CFR a direct and substantial relationship to the child’s • Cannot remove 300.530(e)(1) disability? • Must conduct FBA, implement BIP, OR review existing BIP • Team must “review all relevant information in the student’s file, including the child’s IEP, [and] teacher observations … and any relevant information • Must return to prior placement (unless agreement otherwise) provided by the parents.” §Was the misconduct a direct result of the district's failure to implement the IEP?

Misconduct is a Manifestation IAES May Be an Option Serious Bodily Injury 34 CFR 300.530(f)

§If student's conduct is a manifestation of the student's disability, §The term “serious bodily injury” means bodily injury that involves: the IEP team must: § 34 CFR 300.530 (g) • a substantial risk of death, • unconsciousness, • Conduct a functional behavioral assessment (provided the district had not • May remove a student to IAES for 45 days conducted such assessment prior to the conduct at issue) and implement a • extreme physical pain, (regardless of manifestation) if student . . . has behavioral intervention plan for the child. • protracted and obvious disfigurement, or • When a behavioral intervention plan already has been developed, review inflicted serious bodily injury upon another person • protracted loss or impairment of the function of a bodily member, the plan and modify it as necessary to address the behavior. while at school. organ, or mental faculty • Return the child to the placement from which he was removed, unless the parent and district agree to a change in placement as part of the §Whether student inflicted serious bodily injury is 18 USC § 2246(4) modification of the behavioral intervention plan. a fact specific inquiry

53 12/8/20

Different Outcomes ≠ Bias Changes in Placement 34 CFR § 300.530(a)

§“Any different treatment between students without disabilities and students with disabilities with respect to §If a student’s behavior is likely a manifestation, it may be emergency removals, may occur due to a recipient’s need more appropriate to address behavior via services and “School personnel may consider any unique to comply with the IDEA, Section 504, the ADA, or other placement rather than discipline disability laws, but would not be permissible due to bias §Once discipline is initiated, student’s placement cannot be circumstances on a case-by-case basis when or stereotypes against individuals with disabilities.” changed without bilateral agreement if misconduct is a determining whether a change in placement, • 85 FR 30026 manifestation consistent with the other requirements of this §Same would be true of discipline • Can hinder your ability to effectively meet student’s needs section, is appropriate for a child with a disability • Can hinder your ability to ensure safe atmosphere who violates a code of student conduct.”

Ogallala (NE) Pub. Sch., Ogallala (NE) Pub. Sch., 106 LRP 913 (SEA NE 12/15/05) 106 LRP 913 (SEA NE 12/15/05) Running Hypothetical

§Guidance Counselor Burr is in the process of investigating Maria’s claims. §Parents sued claiming that the social skills program was §Student with Down syndrome transitioning from §Principal Tom Jefferson* has emergency excluded John Laurens during the a punitive removal pendency of the investigation elementary to middle school §H.O.: placement, not disciplinary • Manifestation required? §Parents disagreed with program and methods • "A plan needed to be put in place to deal with that behavior before it seriously interfered with [the student's] educational §Mark LaFayette's IEP team decided to remove him to an intensive day §Some sexualized misbehavior progress. That plan was put into place, [the student's] program which specializes in helping students with disabilities understand • Team determined that the misbehavior was a behavior improved, [the student] met the required goals, and healthy sexuality. manifestation the Respondent returned [the student] to the regular • Manifestation required? education classroom." • Placed student in intensive social skills program

54