Finally, the Final Rule prohibits retaliation by a school system or any other person for the purpose of interfering with Title IX rights or because the person has participated or refused to participate in any manner in a proceeding under Title IX regulations.142 The retaliation provision is purposefully broad in scope.143 It protects any person who has made a report or complaint of sex discrimination or harassment, any complainant, any person who has been reported to be the perpetrator of sex discrimination, any respondent, any witness and any other person who participates or refuses to participate in an investigation, proceeding or hearing. Although a wide variety of conduct may constitute retaliation, including acts of intimidation, threats, coercion and discrimination, the exercise of rights protected under the First Amendment does not constitute retaliation under the Final Rule.144 Charging a person with a code of conduct violation based on knowingly making a false statement in bad faith is not retaliation. However, a simple finding of responsibility alone is not enough to find that a false statement was made. In other words, the deciding factor for whether an additional code of conduct charge is retaliatory is whether the charge is designed to interfere with any right or privilege secured by Title IX.145 Complaints alleging retaliation may be filed according to the grievance procedures for sex discrimination that school systems are required to adopt.146 The system should respond to a complaint of retaliation to the best of its ability.147 If the person accused of retaliation is a student or employee, the system may pursue discipline. If the person accused is a third party, a system can take precautionary measures such as issuing a no-trespass order against the third party. THE FINAL RULE: TRAINING Under the Final Rule, all employees who are likely to receive information about sexual harassment should be trained on a regular basis regarding how to identify and report sexual harassment.148 In addition, the Final Rule requires school systems to ensure that Title IX Coordinators, investigators, decisionmakers and other appropriate individuals receive training covering the following:
The updated definition of Title IX sexual harassment;
The scope of the school system’s education programs and activities;
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