Understanding Title IX and the New Sexual Harassment Regulations for School Boards

APPEALS Under the formal complaint process, school systems must offer both parties the right to appeal the decision, whether that decision has found the respondent responsible or the complaint has been dismissed. The appeal may be based on any of the following reasons: (1) a procedural irregularity that affected the outcome; (2) new evidence that was not reasonably available at the time of the decision and could affect the outcome; or (3) a conflict of interest on the part of the Title IX coordinator, investigator or decisionmaker that affected the outcome. In addition to these reasons, a system’s grievance procedure may also give both parties an equal right to appeal for other reasons.130 For all appeals, however, the system must ensure that written notice is provided to both parties of the appeal and both parties must be provided an equal opportunity to submit a written statement in support of, or challenging, the determination. The appeal process must result in a written decision that must be provided to both parties simultaneously.131 In addition, systems must make sure that the decisionmaker for an appeal: (1) is not the Title IX coordinator, investigator or initial decisionmaker; (2) does not have a conflict of interest or bias against the parties; and (3) receives appropriate training.132 Importantly, in the K-12 context, sometimes boards of education decide grievance appeals under local policies and procedures. AASB recommends that boards and their attorneys, discuss whether it is ideal for a board to serve in this capacity, given the unique training requirements and prohibition on conflicts of interest.

INFORMAL RESOLUTION After the formal complaint has been filed, the Title IX Coordinator must offer the option of informal resolution in the written notice to the parties.133 Importantly, the Final Rule prohibits a school system from offering an informal resolution process unless a formal complaint is filed. The intent is to ensure that the “default” procedure following a report of sexual harassment includes an investigation.134 At any point during the formal complaint process, however, a system may offer an informal process that does not require a full investigation as long as the system: (1) provides both parties written notice of their rights; and (2) obtains the parties’ written, voluntary consent. This is allowed unless the complaint involves an employee harassing a student.135 OCR declined to adopt a definition of “informal resolution process,” explaining that informal resolution “may encompass a broad range of conflict resolution strategies, including, but not limited to, arbitration, mediation or restorative justice.”136 35