Top 3 Missteps to Avoid in Title IX Investigations

Title IX

(1) Know the School’s Title IX Coordinator. 

As a Title IX Investigator, I have received many calls from public and private schools needing assistance during a Title IX investigation.  School representatives have called without knowing the name or contact information for the school’s Title IX Coordinator, the individuals responsible for compliance with Title IX laws and school campus policies. This is a simple misstep to fix!

Title IX regulations require that schools receiving federal funds designate and authorize at least one employee to coordinate its efforts to comply with Title IX responsibilities.  34 C.F.R. § 106.8(a).  This employee must be referred to as the Title IX Coordinator.  Id.  Schools must notify applicants for admission and employment, students and all unions or professional organization holding collective bargaining professional agreements with the school of the name or tile, office address, electronic mail address, and telephone number of the employee or employees designated as the Title IX Coordinator.  Id. The school must prominently display contact information for the Title IX Coordinator on its website, if any, and in each handbook or catalog that it makes available to persons entitled to notification per the regulations.  34 C.F.R. § 106.8(b)(2)(i).

Of importance, schools must comply with all Title IX requirements, including notifying several individuals, listed above, of the Title IX Coordinator’s name, office address, electronic mail address, and telephone number. Schools often place this notification in a school policy. The school representative who called me without having any knowledge of the Title IX Coordinator had recently been hired at the school.  Most schools provide onboard training when an employee begins a new position. The school should provide a section during the onboard training relating to the Title IX complaints and grievance process. Schools may also ask the Title IX Coordinator to speak during a staff meeting or school-wide event to create understanding about the roles and responsibilities of the Title IX Coordinator.  Schools have an opportunity to create common understanding of applicable regulations through onboard training and yearly updates to employees.

(2) Review the School’s Title IX Policies.   

A Title IX Coordinator called for assistance on a Title IX investigation involving two elementary students.  The Title IX Coordinator had never reviewed the school’s policy, so he/she was unfamiliar with the school’s Title IX process.

Title IX Coordinators must serve without bias or conflicts of interest, and receive the training specified in that position.  34 C.F.R. § 106.45(b)(1)(iii).[1]  Title IX Coordinators must receive training on the definition of sexual harassment, scope of the recipient’s education program or activity, how to conduct an investigation, and grievance process including hearings, appeals, and informal resolution processes, as applicable, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.  Id.  Schools then must make the training materials publicly available on the school’s website or, if the school does not have a website, such materials must be made available upon request. 34 C.F.R. § 106.45(b)(10)(i)(D).

It became clear during the conversation with the Title IX Coordinator that his/her school did not appropriately comply with the Title IX regulations requiring training. Again, this is an easy fix! Title IX Coordinators may attend training via outside consultants to achieve this Title IX requirement. Please feel free to reach out to me for my personal favorites!

(3) Understand When Sexual Harassment Has Occurred. 

A Title IX Coordinator called me inquiring whether certain conduct between students constituted sexual harassment and whether the conduct needed to be investigated under Title IX.  I have had multiple conversations with clients regarding whether actions amount to sexual harassment under Title IX.

Title IX protects people from discrimination based on sex in education programs or activities that receive federal financial assistance.  Title IX states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

20 U.S.C. § 1681.

Schools are legally required to respond and remedy hostile educational environments and failure to do so, constitutes a violation that may risk the school losing federal funding.  Schools have Title IX obligations in recruitment, admissions, and counseling; financial assistance; treatment of pregnant and parenting students; treatment of LGBTQI+ students; discipline; single-sex education; and employment.[2]  Title IX also requires schools to prevent against sexual harassment, which includes sexual violence.[3]  Sexual harassment is defined as unwelcome sexual behavior, advances, or requests for favors that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to an educational program or activity.  Id. Sexual harassment also includes conditioning the provision of aid, benefit, or service on an individual’s participation in unwelcome sexual contact.  Sexual violence is a form of sexual harassment.  Id.  Sexual violence is defined as physical sexual acts perpetrated against someone’s will or where a person is incapable of giving consent.  Rape, sexual assault, sexual battery, sexual abuse, and sexual coercion are considered acts of sexual violence.  Some examples of sexual harassment include, stalking or obscene phone calls, texts, emails, or gestures; sexually suggestive jokes, whistles, catcalls, or innuendos; inappropriate touching; and intimidation. Participation in yearly trainings coupled with experience in the field will help individuals better identify incidents of sexual harassment.

[1] See also U.S. Dep’t of Educ. Office for Civil Rights, Part 2: Questions and Answers Regarding the Department’s Title IX Regulations, Jan. 15, 2021, available at:  https://www2.ed.gov/about/offices/list/ocr/docs/qa-titleix-part2-20210115.pdf.

[2] U.S. Dep’t of Educ., Office for Civil Rights, Title IX and Sex Discrimination, Aug. 2021, available at: https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html.

[3] U.S. Dep’t of Educ., Office for Civil Rights, Sex-Based Harassment, available at: https://www2.ed.gov/about/offices/list/ocr/frontpage/pro-students/issues/sex-issue01.html.

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