Title IX
What are the corollary WI laws regarding discrimination
Wis. Stat. Sec. 118.13 PI 9
May parents or guardian's file a formal complaint?
Yes - May do so if acting on behalf of the child complainant
Are dismissals subject to appeal?
Yes - Only on the limited grounds specified in the Title IX regulations or under any additional grounds specified in local grievance process
To what are the Title IX regulations referring when they mention a district's "grievance process?"
highly structured process for investigating and resolving formal complaints of sexual harassment under Title IX. (See §106.45)
What are the retention requirements for Title IX training materials?
1) 7 years 2) All materials used to training coordinators, investigators, decision-makers, and any person who facilitates informal resolution process. 3) Materials must be publicly available on the district's website
What are the two ways that a formal complaint of sexual harassment may arise?
1) Complainant (i.e., alleged victim of sexual harassment) may file formal complaint 2) Title IX Coordinator may sign a formal complaint
What are the general responsibilities of the Title IX coortinator?
1) Coordinate compliance efforts 2) Investigation of any complaints communicated to the school
What are the four lines of Title IX training that must be received
1) Definition of sexual harassment under Title IX 2) Scope of district's education program or activity 3) How to conduct investigation and grievance process including, hearings (if applicable), appeals, and informal resolution process (if applicable) 4) How to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias
What does "Unwelcome verbal or physical conduct of a sexual nature" include for purposes of Wis. Stat. Sec. 111.32(13)?
1) Deliberate, repeated making of unsolicited gestures or comments of a sexual nature 2) Deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes; or 3) Deliberate verbal or physical conduct of a sexual nature 4) Whether or not repeated 5) That is sufficiently severe to interfere substantially with an employee's work performance or to create an intimidating, hostile, or offensive work environment.
What are the two general requirements of 34 CFR Sec. 106.8
1) Designation of Title IX Coordinator 2) Establish complaint and grievance procedure
In connection with each formal complaint of sexual harassment that is filed, what records must a school district maintain?
1) Determination of responsibility 2) Discipline imposed on respondent 3) Remedies to complainant designed to restore or preserve equal access to programs or activities 4) Audio or video of hearing (generally N/A to schools) 5) Appeal and result of the appeal 6) Informal resolution and result therefrom
Under Sec. 106.30(a), of Title IX, what is a formal complaint?
1) Document filed by a complainant or signed by the Title IX coordinator 2) Alleging sexual harassment against a respondent and 3) Requesting that the district investigate the allegation
What is required for removal of a student from an educational program or activity while there is a pending formal complaint of sexual harassment?
1) Emergency basis 2) Immediate threat to physical health or safety of student(s) or other(s) 3) Cannot violate other legal requirements such as rights of students with disabilities 4) Cannot violate state laws relating to suspension or expulsion
What do the Title IX regulations require regarding grievance procedures?
1) Grievance procedures must provide for "prompt and equitable resolution" of complaints alleging any action prohibited by Title IX 2) For complaints under Title IX, the grievance procedure applies only to sex discrimination occurring in the district's education program or activity against a person in the United States. (See §106.8(c) and (d))
What are the independent roles within the grievance process that are required by Title IX?
1) Investigator 2) Decision-maker 3) Appeal Note: District's may also define a role for individuals trained to facilitate an informal resolution process
What are the students' rights?
1) Investigator must provide all parties an equal opportunity to examine all evidence gathered during the investigation that is directly related to the allegations 2) Copy of the investigative report must be given to the parties at least ten days prior to the hearing
In general terms, what are the 7 requirements of the new Title IX regulations?
1) Nondiscrimination policy regarding sex discrimination under Title IX with identification of Title IX Coordinator 2) Grievance procedure for receiving and responding to complaints of sex discrimination 3) District response to actual knowledge of sexual harassment - regardless of formal complaint 4) Grievance process for addressing formal complaints of sexual harassment 5) Notices 6) Training 7) Recordkeeping, confidentiality, and nonretaliation
What does the preamble to Title IX suggest regarding Title IX Coordinator autonomy to sign a formal complaint?
1) Should have a degree of autonomy to determine whether to sign a formal complaint 2) Not improper for the Title IX Coordinator to obtain input from other district officials (including district legal counsel) regarding whether a formal complaint and investigation under the grievance process are warranted 3) Coordinator should assess whether signing would be a "clearly unreasonable" response
What are the respondent's rights?
1) Tell respondent in writing that they are presumed innocent until determined to be guilty 2) Respondent may not be summarily expelled from school unless they pose an immediate threat to the physical health or safety of the complainant or anyone else
As part of its response to a report or complaint, what must the district document?
1) The basis for its conclusion that its response was not deliberately indifferent, and 2) document that it has taken measures designed to restore or preserve equal access to the school district's education program or activity.
If a district elects to offer voluntary informal resolution process, who will be authorized to serve as a facilitator for the process?
1) Title IX Coordinator 2) Others trained as investigators, decision-makers, or appeal decision-makers 3) Unknown at this time whether facilitating voluntary resolution process may disqualify a person from later serving a different role 4) Even if allowable, districts should avoid having facilitator from same case later serve as decision-maker or appeal decision-maker
Generally, what types of complaints might a district received under its "procedure" for receiving and responding to complaints of unlawful discrimination
1) Title IX complaints other than formal complaints of Title IX sexual harassment 2) Based on protected classes other than sex 3) Based on nondiscrimination laws other than Title IX
How is sexual harassment defined under 111.32(13)?
1) Unwelcome sexual advances 2) Unwelcome requests for sexual favors 3) Unwelcome physical contact of a sexual nature 4) Unwelcome verbal or physical conduct of a sexual nature
What are examples of ways that a school district employee could obtain actual knowledge of sexual harassment?
1) Witness an incident (or series of incidents) 2) Receiving verbal or written report about an incident or allegation from student, parent, or other person 3) Receiving multiple reports that, taken together, provide a different picture of a person's conduct than each incident standing alone 4) Filing of a formal complaint or any report under the district's Title IX grievance procedure or grievance process
What are the exceptions to the Title IX confidentiality requirements?
1) as may be permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99; or 2) as required by law; or 3) to carry out the purposes of the Title IX regulations, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.
For informal resolution to proceed, what must occur?
Both parties must give voluntary, informed, written consent
Who will generally be the investigator?
Can be Title IX Coordinator Larger districts may tend to use someone other than Coordinator Benefits to having multiple people trained as investigators (dependent on size of district) Role can be outsourced to properly trained individual
What restrictions apply regarding districts and certain medical or physician records?
Cannot access, consider, disclose, or otherwise use a party's records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional's or paraprofessional's capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the district obtains that party's voluntary, written consent to do so for a Title IX grievance process
Who may not serve in the decision-maker role?
Cannot be performed by the Title IX Coordinator or by the person who served as the investigator for the complaint
Who is not authorized to respond to appeals that arise out of any formal complaint?
Cannot be performed by the Title IX Coordinator, the investigator, or the individual who made the determination of responsibility in the case. Role may be outsourced to a properly trained individual
What is second example of a situation where the Title IX Coordinator would want to sign a formal complaint and trigger the grievance process?
Complainant declines to file a formal complaint, but the Title IX Coordinator determines that the District's interest in the matter is substantial enough that the matter should be investigated and resolved through the grievance process without the complainant's direct cooperation
What is one example of a situation where the Title IX Coordinator would want to sign a formal complaint and trigger the grievance process?
Complainant is not eligible to file formal complaint under Title IX (e.g., complainant is past graduate of the district and no longer participating in district program or activity)
How is sexual harassment now defined under the new Title IX regs?
Conduct on the basis of sex that satisfies one or more: 1) Employee conditioning the provision of an aid, benefit, or service of the district on an individual's participation in an unwelcome sexual conduct 2) Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the district's education program or activity 3) "Sexual assault," "dating violence," "domestic violence," or "stalking" as each is defined in Fed. statutes
What are some examples of supportive measures?
Counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escorts, mutual restrictions on contact, changes in work locations, LOA, increased security and monitoring of certain areas
What must the district's nondiscrimination policy state, according to Sec. 106.8(b)?
District does not discriminate on the basis of sex in the education program or activity that it operates, and the District is required by Title IX and 34 C.F.R. ch. 106 not to discriminate in this manner. The requirement not to discriminate in the District's education program or activity extends to admission (as applicable) and to employment.
May informal resolution be offered in situations involving students?
District may not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student
If a district does not provide a complainant with supportive measures, what must it include as part of its response to the report or complaint?
District must document the reasons why such a response was not clearly unreasonable in light of the known circumstances.
Regarding report writing, what training must investigators receive?
District must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence
What are the district's obligations concerning the confidentiality of supportive measures
District must keep supportive measures to complainant or respondent confidential
What are the district's confidentiality requirements concerning supportive measures?
District must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the school district to provide the supportive measures.
How is Title IX more narrow than most school districts' codes of student conduct or employee handbooks?
District's will generally assert an interest in intervening in certain inappropriate conduct before it reaches the level of conduct that is legally actionable as sexual harassment
What must training materials do and not do?
Do - promote impartial investigations and adjudications of formal complaints of sexual harassment Not do - Rely on sex stereotypes
What is the definition of "document filed by a complainant?"
Document (paper) or electronic submission (email or electronic portal) 2) Complainant's digital signature or otherwise indicates that the complainant is the person filing the formal complaint
May the investigator confer with district employees, including the Superintendent
Due to concerns with separation of roles, impartiality, and conflicts of interest, conversations and consultation should be limited. For example, if DA is appeal decision-maker, the investigator and initial decision-maker should avoid consult with DA about fact-finding and determination of responsibility
What is an example of a Title IX complaint that would be directed to the grievance procedure
Example of Title IX complaint that would not be sexual harassment subject to grievance procedure would be complaint the district provides unequal financial support or facilities in athletics based on sex
What are supportive measures
Generally, are non-disciplinary, non-punitive individualized services offered as appropriate and without fee or charge to the complainant or respondent Designed to restore or preserve equal access to the district's education program or activity without unreasonably burdening other party
When does a school have "actual knowledge"
If a report is made to the Title IX coordinator or any official or the school who has authority to institute corrective measures on behalf of the school, or to any employee of an elementary and secondary school
What are district's supportive measures obligations if Title IX sexual harassment does not exist?
If district determines allegations of inappropriate conduct, even if proven, would not constitute sexual harassment under Title IX, there is no obligation to provide, or continue providing, supportive measures
Regarding formal complaints, what is the significance of the comparatively narrow definition of "sexual harassment" that applies under the Title IX regulations?
If the conduct alleged in a formal complaint would not constitute sexual harassment as defined in the Title IX regulations, even if proved, then any formal complaint must be dismissed for the purposes of Title IX, and the Title IX "grievance process" would normally end.
Regarding situations where there is no formal complaint, what is the significance of the comparatively narrow definition of "sexual harassment" that applies under the Title IX regulations?
If the district has actual knowledge of conduct that clearly does not rise to the level of sexual harassment as defined under Title IX, then, for purposes of the Title IX regulations, the District is not charged with the obligation to "respond promptly in a manner that is not deliberately indifferent," which would normally include, for example, offering supportive measures for the complainant
Is there a live hearing requirement for school districts?
Institutions of higher education must provide for live hearings
How does the potential for retaliation relate to charges for code of conduct violations?
Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by title IX or this part, constitutes retaliation.
For purposes of the district's Title IX obligations relating to sexual harassment, what does an education program or activity include?
Locations, events, or circumstances over which the school district exercised substantial control over BOTH the respondent and the context in which the sexual harassment occurred.
In connection with formal complaints, what restriction(s) do the regs place on districts
May not impose disciplinary sanctions or take other adverse actions against alleged perpetrators of sexual harassment until after an investigation occurs and a determination of responsibility is made at the conclusion of the grievance process
How does the scope of the Title IX definition of sexual harassment compare to Title VII?
More narrow definition in Title IX
What must the Title IX Coordinator discuss with the complainant?
Must promptly contact the complainant to 1) Discuss availability of supportive measures 2) Consider complainant's wishes with respect to supportive measures 3) Inform complainant of the availability of supportive measures with or without the filing of a formal complaint, and 4) Explain to complainant the process for filing a formal complaint
Must the individual making a report of sex discrimination, including sexual harassment, be the victim?
No
Are Title IX complaints limited to individuals?
No - can challenge district policies, procedures, and practices (i.e., inequality in athletics based on sex)
Are there any prohibitions in the Title IX regs concerning administrative leave for employees?
No - schools are not prohibited from placing employees on administrative leave pending the conclusion of the grievance process
May a witness of sexual harassment file a formal complaint under Title IX?
No - witness or person with only second-hand knowledge of an allegation involving other people could report the information, but the report would not be considered a formal complaint of Title IX sexual harassment.
What non-retaliation requirements are included in the Title IX regulations?
No school district or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by title IX or this part, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part.
How are "supportive measures" defined under Title IX?
Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to complainant or respondent before or after filing of formal complaint or where no formal complaint has been filed 2) Designed to restore or preserve equal access to school district's education program or activity without unreasonably burdening the other party, including measures to protect the safety of parties or district's educational environment, or deter sexual harassment
When does a school need to take action regarding an allegation of sexual harassment?
Once they have "actual knowledge" of the allegations
Explain the difference between formal complaints of sexual harassment and reports of possible sexual harassment of which the district has actual knowledge
Only formal complaints trigger the obligation to use the formal Title IX investigation and grievance process
May students be removed from an educational program or activity if a formal complaint of sexual harassment is pending?
Only on an emergency basis, which is defined to include an immediate threat to the physical health or safety of any student or other individual
Who has access to the formal complaint process?
Only students complaints can initiate a formal complaint and trigger the formal grievance process requirements -- Employees may be subject to the nuanced grievance process outlined in the regulations
How is Title IX more narrow than PI 9 of the WI Admin. Code?
PI 9 defines pupil harassment as "behavior towards pupils based, in whole or in part, on any protected status, including sex, which substantially interferes with a pupil's school performance or creates an intimidating, hostile, or offensive school environment.
What is the primary focus of the new Title IX regulations in the K-12 context?
Primary focus of the regulations concerns the overall institutional response by school districts to alleged or confirmed incidents of sexual harassment (including sexual assault and other forms of sexual violence) that may occur in the district's education programs and activities within the United States.
In what circumstance may "supportive measures" may be offered
Prior to and after the filing of a formal complaint as well as in the absence of a formal complaint, must respond to reports of possible sexual harassment and supportive measures may be offered
When responding to an allegation, how quickly should a district respond?
Promptly and in a manner that is not clearly unreasonable in light of the known circumstances (i.e., in a manner that is not "deliberately indifferent")
What level of training should appeal decision-makers receive
Recommended to receive the same level of training as the "decision makers"
When the Title IX regulations refer to a school district's Title IX "grievance procedure," to what are they referring?
Referring to steps for responding to and resolving reports or complaints of possible unlawful discrimination based on sex under Title IX, other than formal complaints of sexual harassment under Title IX.
What is the Standard of Proof for a Title IX investigation?
School may choose the burden of proof. 1) Preponderance of the evidence 2) Clear and convincing
May a school choose to address a claimed Title IX violation that does not occur under an education program or activity?
School may choose to address incidents outside its jurisdiction but does not have to do so.
How does "jurisdiction" impact a Title IX investigation?
Schools are only responsible for addressing sexual harassment that occurs under an education program or activity.
In what circumstances is informal resolution not allowed?
Schools cannot offer informal resolution for allegations that an employee sexually harassed a student
What is informal resolution?
Schools may offer informal resolution options, such as mediation, to the parties.
What are school district requirements regarding grievance procedures?
Schools must adopt and publish grievance procedures that provide for the prompt and equitable resolution of student and employee complaints of acts prohibited under Title IX and a grievance process that complies with Sec. 106.45 for formal complaints 34 CFR Sec. 106.8(c)
What are the record keeping requirements for Title IX?
Schools must maintain for 7 years
Under 34 CFR Sec. 106.8, what are the school's requirements regarding the Title IX coordinator?
Shall notify all its students and employees of the name or title, office address, email address, and telephone number of the Title IX coordinator(s) Note: District must prominently display the contact information and nondiscrimination policy on its website and in each handbook or catalog it makes available to persons who are entitled to receive notifications
What is the single-investigator model?
The investigator for the Title IX claim cannot be the same person who determines whether the respondent is guilty
How is Title IX more narrow than Title VII?
Under Title VII in the employment context conduct that is severe or pervasive can meet the applicable standard for a hostile work environment claim
For what reason might a district choose to have all employees participate in a general, awareness-level training module regarding sexual harassment and the district's Title IX obligations?
Under the new regs, districts are deemed to have "actual knowledge" of sexual harassment if any employee of the district has notice of an incident of or allegation of sexual harassment
How does the Title IX grievance process relate to discipline?
Use of the Title IX grievance process is generally a prerequisite to the imposition of any disciplinary sanction or penalty for substantiated sexual harassment, as defined under the Title IX regulations.
Will the Title IX grievance process be used to address and resolve any complaints other than a formal complaint of sexual harassment under Title IX?
When a formal complaint of conduct that could constitute sexual harassment exists, the District will likely use the Title IX process for simultateously assessing the same conduct under other laws (e.g., Title VII and WSA 118.13) If district determines that it is not required to use Title IX grievance process, district will likely use more general discrimination complaint procedures or other processes
What are the Title IX confidentiality requirements?
34 CFR Sec. 106.71(a) Must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness
Will the school board have any role in the Title IX grievance process for formal complaints of sexual harassment, or only in potential post-Title IX or non-Title IX proceedings (e.g., student expulsion, employee discipline and grievances for discipline)?
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In connection with a school district response to any report or formal complaint of sexual harassment, what must the district create and maintain
A record of any actions, including any supportive measures, that the district takes in response to the report or complaint
Why is it recommended that districts not use the District Administrator to be the Title IX Coordinator?
Title IX Coordinator may not be the decision-maker or the appeal decision-maker when the district is addressing a formal complaint of sexual harassment 2) If DA were to investigate, a subordinate would review and evaluate the investigative report, raising concerns about the impartiality if the decision-maker
What may occur if the employee (respondent) is no longer employed by the school?
Title IX coordinator may dismiss the formal complaint
Does Title IX apply to incidents occurring outside the United States?
Title IX does not apply to incidents outside the U.S., such as during a study abroad trip
How does Title IX relate to situations of employee v. employee claims?
Title IX protects employees of educational institutions, programs, and activities against sex discrimination and harassment. Typically under Title VII of the Civil Rights Act, but Title IX is implicated if employee only claims of discrimination, harassment, and retaliation on the basis of sex
Who may make a report?
Title IX regulations specify that a District's procedures must allow any person to report sex discrimination, including sexual harassment
If conclusion is reached that sexual harassment did not occur under Title IX, may a school find that a student, employee, or other respondent engaged in inappropriate conduct under some other area?
Title VII (employment), student codes of conduct, employee handbooks, and other local policies will generally prohibit a broader range of undesirable conduct so district's will also need to assess whether violations have occurred, even when Title IX threshold was not reached
What additional training must decision-makers also receive?
Training on any technology to be used at a live hearing (if applicable) 2) Issues of relevance of questions and evidence, including when questions and evidence about the complainant's sexual predisposition or prior sexual behavior are not relevant, as set forth in the regs
What additional training must investigators receive?
Training on issues of relevance to create an investigative report that fairly summarizes relevant evidence
