Another Back to School Checklist - Title IX Style

Another Back to School Checklist - Title IX Style How Your District Can Prepare

David Holmes, Associate Attorney

AAs a wholly unusual summer comes to a close, school districts are facing an unprecedented degree of difficulty in getting the 2020-21 school year off to a solid start. Besides the pandemic-sized elephant in the room, there are also the looming requirements of new federal regulations under Title IX set to go into effect at virtually the same time that students are slated to return to school.

As you likely know, on May 6, 2020, the U.S. Department of Education announced new regulations under Title IX set to go into effect August 14, 2020. The Department claims the new regulations strengthen protections for survivors while also bolstering due process standards for all parties in campus proceedings. For the first time, the regulations officially define sexual harassment—including sexual assault—as impermissible sex discrimination. The new regulations also place additional procedural and evidentiary burdens upon schools to ensure they meet federal expectations in Title IX investigations and adjudications. This article provides a back-toschool roadmap for districts to make sure everything is in place to stay in compliance with the federal regulations.

DESIGNATE AND PROVIDE NOTICE FOR THE TITLE IX COORDINATOR

Under the new regulations, schools are now required to designate a specific employee as the coordinator of efforts to comply with Title IX. This employee must hold the title of and be referred to as the “Title IX Coordinator,” and must be given authority to initiate and coordinate the school’s response to a report of sexual misconduct. Districts are required to notify potential reporters (including employees, students, parents, and unions/ other professional organizations) of the name/title, office address, electronic mail address, and telephone number of the employee or employees designated as the Title IX Coordinator, and any person may report sex discrimination to the Title IX Coordinator at any time (including during non-business hours) in person, by mail, by telephone, by email, or by any other means that results in the Title IX Coordinator receiving the report. Because the Title IX Coordinator is the centralized recipient of all Title IX offense reports and the field general for the district’s response, it is critical that this individual be decided upon and announced/ publicized as soon as possible.

REVIEW AND REVISE PROCEDURES TO RESPOND TO ALLEGATION OF MISCONDUCT

The new regulations provide a number of requirements that any school’s grievance process for sexual harassment must meet to be compliant with Title IX:

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7. Equal Access/Treatment - Complainants and respondents must be treated equitably by providing remedies to a complainant when a respondent has been found responsible for sexual harassment and by following a compliant grievance process before taking any disciplinary action against a respondent. Objective Evaluation – all evidence, both inculpatory and exculpatory, must be objectively reviewed and credibility of a person cannot be based on their status as complainant, respondent, or witness. Bias Free Training - The Title IX Coordinator and other staff involved in the Title IX response must be free of bias, not have a conflict of interest, and must receive training on Title IX regulations, definitions, and procedures. Presumption of Innocence – The process must operate assuming the respondent is not responsible for the alleged conduct until a final determination is made. Reasonable Time Frames – The process must proceed within a reasonably prompt time frame, including any informal resolution process or the filing and resolving of appeals. Temporary delay is permitted for good cause with written notice to the complainant and respondent of the delay and the reason. Description of Possible Outcomes – the process must include the provision of a description of the range of possible disciplinary sanctions and remedies after a final determination. Standard of Evidence – The process must state whether the standard of evidence is the clear and convincing

or preponderance of the evidence standard. The institution may choose either standard but must apply the same standard for all formal complaints. 8. Appeal – Must include procedures and bases for either party to appeal. 9. Supportive Measures – Must describe the range of supportive measures (meaning “non-disciplinary, nonpunitive individualized services”) available to the parties. 10. Protection of Privilege – the process may not require, allow, or otherwise use evidence that requires the disclosure of information protected by a legally recognized privilege, unless the holder has waived the privilege.

The new regulations also provide a number of requirements specifically applicable to a school’s investigation of a claim of Title IX violations: 1. Place the burden of proof and responsibility to gather evidence on the institution and not on the parties; 2. Present an equal opportunity for parties to present witnesses and other evidence; 3. Permit parties to discuss allegations under investigation and gather relevant evidence; 4. Provide parties with equal opportunity to have others present during any grievance proceeding; 5. Provide written notice of all hearings, interviews, or other meetings to any involved party with sufficient time for the party to prepare; 6. Provide equal opportunity to both parties to inspect and review evidence obtained as part of the investigation (including evidence which the institution does not intent to rely on), and send to each party the evidence at least 10 days before completion of the investigative report 7. Create investigative report that summarizes relevant evidence and send a copy of the report to each side 10 days prior to any hearing or other time of determination regarding responsibility to permit them an opportunity to send a written response.

As soon as reasonably possible, districts must craft a procedure to respond to and investigate allegations of sexual misconduct that sufficiently meets the stated requirements, so that the district can be in compliance from the first report received after the regulations go into effect.

REVISE/ADOPT NEW DISTRICT POLICY

District policies may require revisions in order to remain compliant with Title IX. Board Policies DGBA, DIA, FFF, FFG, FFH, FNG, and GF stand out as particularly ripe for review for potential revision to comply with the new regulations. Consult with your district’s attorney to determine the full scope of changes needed to your district’s policies.

DETERMINE AND PROCURE NECESSARY TRAINING

Compliance with the new regulations will certainly require additional training for most if not all school employees – among the new requirements is a mandate that a report of potential sexual harassment to any K-12 school district employee puts the district on actual notice of the harassment and triggers the district’s obligation to respond. Accordingly, districts will need to ensure that all employees are sufficiently trained to recognize a report of potential sexual harassment and promptly make a subsequent report to the necessary administrators to allow the district to respond. Additionally, any staff involved in a district’s Title IX response are specifically required to undergo bias-free training on all Title IX regulations, definitions, and procedures. It should be noted that multiple lawsuits have been filed against the Department of Education seeking injunctive relief to block the new rules from taking effect. Opponents include advocacy groups for students’ and women’s rights claiming the rules deter survivors from pursuing cases against their abusers, education interest groups who say the compliance date is unreasonable as schools focus on preparations to reopen during the coronavirus pandemic, and states who insist the regulations conflict with state laws and put state education systems at an untoward financial risk. However, until a binding ruling is issued in any of those cases, schools will need to prepare accordingly. Following these guidelines will make sure your district is ready and prepared from day one.

David Holmes is an Associate Attorney with Walsh Gallegos Treviño & Kyle , P.C. He can be reached at dholmes@wabsa.com.