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Title IX Compliance: Investigating Sexual Harassment Complaints in Schools

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Title IX Compliance: Investigating Sexual Harassment Complaints in Schools

The presentation explains the legal background and purpose of the current Title IX regulations governing sexual harassment, sex discrimination, and sexual misconduct complaints in educational programs. The program summarizes the core regulatory components and outlines the Title IX investigation process from complaint through hearing with a focus on key compliance standards.

Transcript

Hello, my name is Peter Carr. I'm an attorney with Eckert, Seamans, Cherin and Mellott in Boston, Massachusetts. I practice in the space of employment law, and representing schools. Today I will be presenting on a course, Title IX Compliance: Investigating Sexual Harassment Complaints in Schools. This presentation will explain the legal background, and purpose of the current Title IX regulations that govern sexual harassment, sex discrimination, and sexual misconduct complaints in education programs. This presentation will summarize the core regulatory components with respect to Title IX investigation process, from the complaint to the hearing, and focus on key compliance standards. So what is Title IX? Title IX is a federal law that was enacted in 1972 to address sexual harassment, and sex-based discrimination in programs that receive federal funding. 2022 marked the 50th anniversary of Title IX, and from the outset, Title IX's goal was to ensure equal access to education, and education rights in programs that receive federal funds. The federal government through the Department of Education Office for Civil rights oversees Title IX, and the standards of the law have been shaped over the years by United States Supreme Court decisions. At base, Title IX provides at a school that receives federal funding is liable for sexual harassment that occurs within the institution where the school has actual knowledge of the conduct, and responds with deliberate indifference. And those elements are critical to understanding a school's obligations, duties, and rights with respect to Title IX. Because deliberate indifference is a response that is clearly unreasonable in light of the circumstances known to the school, we will get into each of these important elements as we proceed through the presentation. So the core concepts of Title IX have been captured in regulations that were enacted in 2020 as a revamp of the Title IX rules that apply to schools. And these on the screen here you'll see the overview of legal and policy considerations. And at the top, Title IX prohibits sexual harassment, sexual misconduct involving both students, and school employees. A lot of people think that Title IX only applies to sports programs. I'm sure many people have heard about Title IX, and athletics and athletic funding. Title IX is a broad anti-discrimination law that prohibits sexual harassment, sexual misconduct in educational programs involving both students and employees. And all of the law that applies here is student to student conduct, or student to employee conduct. This presentation does not cover employment discrimination. That's covered under another section of federal law called Title VII, but what's important to understand is that Title IX applies to conduct both involving student on student conduct, and employee on student conduct. It prohibits this type of activities in any program that is a sponsored event, a school-sponsored activity, whether or not it occurs on campus. There's a revised definition of sexual harassment, which we will walk through, but the guiding principles of the 2020 regulations that were enacted is support for the victim, victim autonomy to determine complaints, whether to proceed with complaints and due process. And the key point of due process under the 2020 regulations is that both complainants, which are the victims, or alleged victims of sexual harassment, and respondents, who are the accused perpetrators have rights. A takeaway from today that I hope everybody understands, is that even if the conduct does not violate Title IX, even if it doesn't meet some of the definitions, which we will go through in a few minutes, that does not preclude a school from taking action against that conduct. There are many codes of conduct of a school that a school expects its students, and employees to comply with. And even if it doesn't meet the strict definition of Title IX, a school should and can take action to discipline, and investigate that type of behavior. The key here is a process. The schools must under Title IX implement a fair process resolving formal complaints. And there's a strict definition of a formal complaint, which we will review. The law requires transparent, and equitable grievance process, and a school must engage in training of professionals who are able to implement Title IX policies and procedures, starting with a Title IX coordinator. The school must publish this information on its website so that individuals who have complaints, who have concerns that wish to come forward with a concern know how to do it. I wanna talk about the definition of sexual harassment 'cause this is what drives the initial complaint process and investigation process. As a school gets a complaint, it looks at the factual allegations, and has to determine is this in the first instance, a potential allegation of sexual harassment. Sexual harassment is a broad concept. It includes these types of behaviors. Quid pro quo, which means that basically it's a situation where somebody is pressured to engage in some sort of sexual misconduct in return for benefits of the educational program. And, again, that could be by a student or an employee. There's sex-based misconduct. And this sexual harassment at this level covers criminal activity, sexual assault, rape, date rape, sexual abuse. All of those types of misconduct fall within Title IX's definition of sexual harassment. And there's many, many cases that arise with respect to these types of untoward behaviors on campus. And, in fact, it was this type of misconduct of sex-based misconduct of criminal activities, allegations of dating misconduct, or sexual assault that gave rise years ago to the Office for Civil Rights of sending letters around to the institutions to require beefed up standards of investigations. That led to the 2020 updated regulations to address situations that were occurring on campus, and complaints on both sides that the process under Title IX was not as fair, impartial, and transparent as it should be. And that is why in 2020, we had these new regulations that were updated to set forth some clear guidance on what the law requires. The third definition of sexual harassment is expressive conduct. And this conduct, which would give rise to a Title IX violation, has to be unwelcome. It has to be sex-based. And it has to be both objectively severe, and subjectively severe. That means a reasonable person, not just the person who's making the complaint, but a reasonable person would find the conduct so severe, and pervasive and offensive that it would deny educational access. These conduct standards are key because quid pro quo, which is the benefit relationship power type conduct, and the sexual violence conduct, the law says that type of behavior absolutely deprives equal access to education, that is if proven in a Title IX violation. Again, if proven, which will get to the investigation stage. However, expressive conduct, the conduct I just described that talks about severe, and pervasive and objectively unreasonable sex-based conduct does not automatically qualify as Title IX violation. And in part that's because some conduct, particularly if it's speech or words, could impact First Amendment rights. So the law right now as it's evolved to the Supreme Court is that in order to have an expressive conduct sexual harassment Title IX case it must be severe, it must be pervasive, and it must be objectively unreasonable. As I indicated, a touchstone of Title IX is deliberate indifference. A school has liability, legal liability under Title IX if it acts with deliberate indifference to information that it knows of. Knowledge is the key here. If a school has knowledge, has actual knowledge that there has been sexual harassment, or a complaint of sexual harassment comes forward, and that it occurred within the school's educational program involving somebody in the United States, 'cause Title IX only covers conduct occurring within the United States. It doesn't just cover conduct on campus. It can be activity that's part of the program such as a trip to another state, or a social event, or a gathering, but it all must be within the United States. Right now off-campus conduct that occurs outside the United States is not covered by Title IX. Once again, it could be a violation of school rules, but it wouldn't be a Title IX violation, but knowledge is key. If a school has knowledge it must respond. So what is actual knowledge that requires a school response? And, again, action is required once there is school knowledge. You must respond in a manner that's not deliberately indifferent upon the actual knowledge. Deliberate indifference is key. In a post-secondary institution knowledge is imputed to the school of conduct that requires investigation, and potential corrective action if the Title IX coordinator, or any school official with authority to institute corrective measures, actually knows of an incident of a complaint. So, if it's a person at a post-secondary institution that is a faculty member that becomes aware of a complaint, or becomes aware of an incident that's not knowledge when you're in a post-secondary institution, it must be brought to the attention of the Title IX coordinator. It must be brought to the attention of a school official that has authority. If that doesn't occur, the law deems that there is no knowledge, and no Title IX action is required. Again, I want to put aside, and I'll say it probably one more time, but you gotta put aside Title IX conduct that we're talking about here, and other misconduct that may still be a violation of school rules, but under Title IX strict definition legally. Deliberate indifference is only triggered if there's knowledge, and knowledge is at the level of the Title IX coordinator, or a school official. That standard of knowledge is different when you're dealing with K through 12 programs, and the knowledge there is any school personnel that receives notice of a potential misconduct complaint that would be a sexual harassment violation. At that point, there's knowledge of the school. It's similar to what states have in what we call our mandated reporter rules, that anybody that's within a school who has supervisory responsibilities over students, they are all mandated reporters. So if they get notice of a complaint they have to act, or potential complaint. That's in a lower school situation. It's a broader based knowledge standard. As I indicated, the conduct that's alleged must be part of the educational program or activity, and that means that it's obviously on campus, or in school conduct, but it also can be conduct that occurs outside of the typical school setting, provided that there was a connection back to the school. So if the school has exercised substantial control over the person who was involved in the act, and the context in which that occurred, the school can be responsible for that conduct, and must investigate that conduct. The best example I can give is that a school travels to a basketball tournament off-site in another state. And during that trip in the other state, there's conduct that constitutes sexual harassment. Even though that conduct did not occur on school grounds, it was connected to the school. There was a connection to the school because the school was supervising that trip, and that activity. And so, therefore, there's a nexus to the school, there must be an investigation. Similar if there was some sort of a social event. For instance, if there was a prom off-site, and there was some sort of sexual misconduct that occurred off-site at a hotel, it's still a school-sponsored event, and there's still an obligation to act. As I indicated, right now under the current version of the Title IX regulations, it still must occur within the United States. So if you have some sort of a program that's an overseas, or off-campus program and there's some sort of misconduct, Title IX does not apply. It could, again, I'll say it again, it could trigger obligations under other codes of conduct, but strictly speaking, Title IX would not apply to that behavior. What we talked about was notice and knowledge. Now I want to review some of what the school's response must be with respect to a Title IX complaint and incident. And in the first instance, in order for a school to make an appropriate response to an allegation, a complaint of sexual harassment, and violation of Title IX, people need to know where to go, where to come forward with these claims of harm, so the school can take proper remedial action, which starts with an investigation. The law says in order for people to make sure that they can exercise their rights to free educational opportunities and programming, the school must tell and must post how to report, how to make a report of misconduct. The school must designate a Title IX coordinator to receive and coordinate the response of a complaint. There must be a Title IX coordinator. It doesn't need to be a Title IX office, but there must be somebody at the school who holds the position of Title IX coordinator. And that information, that contact information of the Title IX coordinator must be published to the community. It must be on the website. It must be displayed prominently. It can't be a situation where somebody has to go hunt-and-peck to find out where do I go with a complaint? It must be prominently displayed. The schools must publish in advance a lot of information. The name, the information of the Title IX coordinator, how to make a complaint, but what is a critical piece that must be published in advance, so everybody knows is the standard of proof when you get to a hearing of what has to be proved, what level of evidence must be submitted to prove responsibility. And, again, that ties back to the due process piece of the new regulations. There's a due process right of an accused, a perpetrator to know what the charges are, and what is the level of proof that has to be withstood to show that I'm responsible for this incident, and the victim needs to know, what do I have to prove to establish that my rights were violated, and that I was deprived of a fair educational opportunity. This notice to the community of what is the standard of proof must be set forth prominently, and it protects the school later from complaints, or challenges to an outcome that we didn't know what we were faced with here. This is both to protect the interest of the students that are involved, or the individuals that are involved in a Title IX investigation as well as the school. So access to reporting, access to information is critical under the Title IX regulations. And a school can go a long way in mitigating its legal exposure if it has these items buttoned up in advance through policies and procedures, and proper notification to its community. A second piece that's required under the response to Title IX in all instances, if there's notice of an incident, and notice is different than knowledge in that notice is I know something's happened. Knowledge is a formal complaint, which we'll get to. If there's any notice of an incident, even if there's no complaint filed, even if there's no investigation convened, the school must provide what's called supportive measures to the individual who's the subject of the harassment. And this is a key part, again, of deliberate indifference. If the school has noticed that somebody is in jeopardy, in harm, has suffered harm, and they go and they do nothing, they don't provide any supportive measures, they don't reach out to the victim, and they don't provide the ability to at least on an initial basis, on an interim basis provide support, a school could be in violation of its Title IX responsibilities for deliberate indifference. Remember, at this phase of the Title IX process, there may not even be a formal complaint. It may just that somebody knows of, or heard of. And we all get concerned about rumor and innuendo, but if there's some information that comes to the school that raises a concern with the school there has been an incident of sexual harassment, sexual misconduct, the school must follow-up with the victim, if they know the victim, the alleged victim, and reach out and say we understand something has occurred. We wanna offer you support. That's even without a formal complaint being filed. That's without any finding. There's no findings here at this point. There's no determination or judgment by the school that an incidence occurred. There's no judgment or finding or conclusion by the school that the perpetrators engaged in, or the alleged perpetrators engaged in misconduct. And, in fact, the school cannot make that finding at this phase. This phase is limited to something may have happened, and we need to reach out you cannot make a judgment. If a school makes a judgment, or a conclusion at this phase of the process, there will be a potential claim, a violation of law by the alleged perpetrator because now you violated due process, but supportive measures still need to be considered, and implemented. Once the school is on notice of a situation, the Title IX coordinator must promptly engage in these types of discussions with the victim. Explain the process. Again, information, access to information is key. Explain to the potential victim of what is the process for filing a complaint. What is the process for investigating a formal complaint? And at this phase under the new regulations, the school must consider the complainant's wishes with respect to supportive measures, and with respect to whether or not that alleged victim or potential victim wants to pursue a formal complaint. Under the new regulations the law says that the school must respect at some level the wishes, particularly in a post-secondary situation, the school must respect the wishes of a potential complainant. And that is a key component of the new regulations. There are instances where the Title IX coordinator may hear of the allegations, may assess the situation. The complainant says, I do not want to pursue it, but there's enough information that has been developed in the interim before even a formal investigation occurs, where the Title IX coordinator will say, there's just too much here for us to just not pursue it. The school is at risk, the victim's at risk, the community's at risk. Even though the complainant does not want to pursue it, I'm gonna file a formal complaint. Now those can be few and far between. That's a judgment call that's beyond the scope of this presentation. This is an overview, but I did wanna highlight that there can be a situation where the Title IX investigator can take action. I'll pause here as I get ready to go through some more specifics on the process to mention retaliation. And this is a good point to talk about retaliation because we're at the beginning of the process, if there's a complaint, or an inkling of a complaint, and the school starts to talk to individuals to get some information as to what is going on. At that point, from then on out, retaliation is prohibited. Retaliation by the school, obviously. Retaliation by the potential complainant. If the complainant comes in and makes a complaint, the individuals that are investigating, the other witnesses, the perpetrator, any sort of retaliation against that complaint against the individual, and against the potential perpetrator, there can be no retaliation during this whole entire course of the proceeding. And retaliation in of itself is a violation of law. It's subject to the grievance procedures, and it's subject to punishment. And schools must make it clear to its community that just as it won't stand for sexual harassment, and misconduct in its programs, it will not stand for retaliation. I wanna talk about the essential complaint investigations procedures when the school does receive a complaint. The key is a formal complaint. As I indicated, the school can be on notice that something's occurring, but when it has actual knowledge that there has been an incident, or an alleged incident, the first step is a formal complaint. The school cannot act officially until there's a formal complaint. The grievance process, the formal Title IX grievance process does not start until, and unless there's a formal complaint. And the law defines a formal complaint as a document that's signed by the victim, the complainant. And as I indicated, the Title IX coordinator, in some instances, can sign and file a formal complaint if the Title IX coordinator determines based on the facts and circumstances at hand, that an investigation is reasonably required. And that, again, is to address the deliberate, and different standards. So even if there's no signed complaint by a complainant, the complainant decides not to pursue it. At least at this stage, the Title IX coordinator can say, you know what, there's enough here. We need to look into this. I'm gonna sign the formal complaint, but in either case, there's gotta be a signed document that lays out the basis of the complaint, the allegations. It doesn't have to be every single act that occurred, but it has to be in enough detail to set forth, and give notice of what is the conduct that's being complained of. What are the facts, and circumstances surrounding an incident? Typically, who's involved? What's the date? Where did it occur? When did it occur? Who else may have been present? Those are the key factual pieces of information that are necessary because at that point in time there has to be a process that's surrounding notice to the alleged perpetrator, so it must be signed. There must be an actual document, and what's also key to this determination as to whether or not a Title IX investigation is triggered is the person who's complaining, the alleged victim still at the school, are they trying to participate? Are they participating, the victim, in the school program? Former students, Title IX doesn't apply to them because the touchstone of Title IX is interference with the educational programming. Again, a former student may have other remedies, but if it's a former student, they're not currently attending, they're not trying to attend, the complaint does not apply to Title IX. The formal complaint is critical because there must be notice. The schools must send written notice of the formal complaint to the complainant, which is the victim, and the respondent who's the perpetrator. And the school must outline with some specificity, what are the allegations, what's the accusations that the school intends to investigate so that there's notice on both sides. Then tying back to due process, notice of what the charges are. There's been disagreement about some of these new regulations. Some fields believe that there's too much rights given to a perpetrator. Some feel there's too much rights given to the victim. This presentation doesn't delve into those policy considerations, and differing points of view they're acknowledged. The regulations govern, and the regulations say the schools must provide this notice. And if it doesn't provide this notice to a perpetrator, and conducts an investigation, and there's a disciplinary finding, that perpetrator is going to have a good legal suit to bring against the school for due process violation. The schools must also provide notice of any interviews that'll occur, meetings, hearings, as part of this process, again, for due process rights. So the next step in the process after the notice is given to everybody is what's called the investigation report process. So the school will retain an investigator, and the investigator needs to be unbiased. That's another piece of these regulations. There's gotta be transparency in the investigation. There's gotta be free from bias. There can't be judgment rush to judgments. These are all the criticisms at different levels that guided the new regulations. So the investigator will be assigned. The investigator will do an investigation. There will be interviews conducted, there will be meetings, there will be evidence that's gathered. And as part of that process, all the information that's gathered, the school must provide both sides the ability to inspect all that information. If there's physical evidence, if there's tangible evidence, if there's text messages, if there's clothing involved, if there's statements taken, all of that must be reviewed in advance, or given the right to review in advance by both sides. They must have 10 days before the investigator writes the report, taken whatever comments to the evidence must consider it, and then write the report. And in that process of writing the report, the parties or their advisors. Students or individuals have a right to advisors. They don't have a right to counsel, but they have a right advisors are entitled to submit additional evidence in response to what's been gathered. I put in here gag orders prohibited, because the school can't go and say to somebody, or the investigator, hey, don't talk to the investigator, or the school can't go and say, don't talk to this person, or anybody who's under investigation can't say you can't talk about this. No, it's gotta be an open confidential process, but an open process. So the investigator issues what's called the investigation report, and that report is then sent to both sides, the victim and the perpetrator, the complainant and the respondent. And the school must provide both parties 10 days to respond to that report and provide comments. And the investigator must consider those comments, and the investigator could amend the report, and then issue a final report. So in this process as you see these dates, the investigation is going on. Once the evidence is gathered, the investigator has to give both sides 10 days to respond. Then there's another 10 days to respond after the report. So this process can take some time, but you gotta follow those 10 day rules to make sure that the process is fair. Once the report is generated, and the formal complaints under investigation, and sometimes not regularly, but sometimes in my experience before there's a full-blown investigation, the school may try to encourage, or the complainant may want an informal resolution, and the school can facilitate informal resolutions of student on student sexual harassment cases. The school cannot engage in informal resolution of employee on student sexual harassment. And the law understands that the school, if there's a complaint involving an employee of misconduct towards a student, that level of review is more stringent. The school can't as hiring personnel, can't just try to resolve it informally. And as people have heard brush it under the rug. And the reason that is is because there's been too many cases of sexual abuse that have gone brushed under the rug. So the Title IX regulations recognize informal resolution of complaints between students and students, and that makes some sense depending on the nature of the complaint. It's an educational experience. There may be corrective action that they can agree to. As a learning experience, you have to consider the age of the kids, what their future looks like. Perhaps the school, if everybody wants to use it as a learning experience not that that's good behavior, but depending on the type of behavior, it's a way to build relationships and move forward without a student being impacted for the rest of their career. These are the types of situations a school will consider as to whether or not an informal resolution may be needed. Certainly if there's a complaint of a serious sexual assault an informal resolution would not be appropriate, but there are some cases, given that we are in a school context, an educational environment, ages, differences, that it may benefit from an informal process. And if that's the case, and if both parties agree, you can have this process. You gotta have it in writing. It's gotta be voluntary. If you're using a neutral, it should be somebody who's well-trained that's unbiased, that can help try to guide a resolution. And both parties cannot be forced to do this. Any party can withdraw from it at any time. There should be no pressure put in any way, or complaints of pressure. There are situations where a school may decide to dismiss a formal complaint, and legally the school has to dismiss, and cannot proceed with any further investigation under Title IX at least, if it doesn't meet the standard of Title IX. If, for instance, the allegation is the conduct occurred in Europe on a school-sponsored trip, if the respondent or the complainant are no longer enrolled, or employed at the school, there's no jurisdiction over that conduct. If the complainant withdraws a formal complaint in writing, I do not want to proceed with this. As I indicated, autonomy is a key part. Victim autonomy is a key part of this regulatory scheme. The school has to dismiss the complaint, cannot go forward. If there's instances where the school can't gather evidence, can't get access to witnesses, witnesses don't want to participate, there's no evidence, there's nothing to substantiate any of the allegations, or perhaps an initial investigation, it's determined that the alleged victim, and the alleged complainant were on opposite ends of the campus at the time in which this allegation occurred. The school can make a decision we're gonna dismiss, and they gotta give written notice to the parties of the reasons why and outlined, so that there's documentation as to why the school decided not to pursue a Title IX investigation. And that's for the benefit of the parties. And it's also for the benefit of the school to document that it wasn't deliberately indifferent, that it did take it seriously, and that it took action appropriately according to the law. And this is the last time I may say it. It's the last bullet on this slide. Even if they dismissed the Title IX complaint, that doesn't mean the school cannot take remedial action under any of its other code of conduct. It could still act. In certain instances the school should act. I wanna talk about the hearing process, because now we're at the point in the Title IX process where there is an investigation report, there's a finding by the investigator to substantiate that there has been a Title IX violation. And the process then goes to a hearing. And the hearing is basically you start over again. So the investigation report it's a finding that there's a reason to believe, probable cause if you wanna believe that there's a violation. Now there's a right to a hearing. And at the hearing in a post-secondary situation, this is not a courtroom, but this is a hearing process where each side comes in, and in post-secondary situations, the perpetrator, the alleged accused, has the right to cross-examine in real-time. Now, the individual who's been accused doesn't have a right to cross-examine witnesses, or even the victim. An advisor has to do it, or through the hearing officer. At this phase, and particularly in the post-secondary phase of the hearing phase advisors are appointed by the school. They have to appoint advisors on both sides. Those advisors are not lawyers. There's no right to counsel. You get the demand from the accused, I demand to bring my lawyer. No, that's not the way it works. There's no right to a lawyer there. The school could decide, yes, that's fine, but there's no right, but you have to provide this hearing where there's evidence is reviewed by the hearing officer anew. The investigation report typically comes in, but it's not final evidence. Sometimes the hearing officer will say, I'm not gonna take it, but the Title IX coordinator and the investigator are typically part of this hearing process, but the purpose of the hearing is not to just rubber stamp the investigation report. And if there's any indicia that there's a rubber stamping going on, there's gonna be a violation of rights because there's an obligation to the school to present its evidence for the accused to rebut it, to cross-examine, to have people under oath. And that's the process that's been set up under these new regulations. There has to be a level of due process. In a K through 12 school situation a live hearing is optional at the school. I highly recommend in practice that schools set forth in advance whether or not, the K through 12 schools now, in advance will set forth in writing policies and procedures for hearings, investigations and hearings, but hearings in particular. I've done a number of these in the past where it lays out what the hearing processes look like. Will it be live? Will it be done by written questions? Will there be a right to cross-examination in real-time? As a school you should set that forth in advance. You may decide as a school that certain levels of Title IX misconduct require hearings, live hearings, others don't. There's flexibility at the K through 12 level. There's not that flexibility under the regulations at post-secondary. You must have a live hearing. You must provide for real-time cross-examination. These hearings can be upsetting given the types of allegations at play. So the school can have these witnesses, accused and complainant in separate rooms, but they have to be able to hear and see each other, and they must be recorded. These are, again, just to reiterate some of the key hearing rules we discussed. It's not in a courtroom. Strict rules of evidence don't apply. The hearing officer will make the decision as to what evidence can come in, what evidence doesn't come in. The hearing officer determines questions. The hearing officer needs to determine whether or not a question's relevant. Is it important to the outcome? Is it material? Is it badgering? Is it bad faith? That's up to the hearing officer. However, if the hearing officer decides to exclude a question, it must be stated why the question was excluded. The hearing officer could say I don't think it's helpful. They could say it's not pertinent to the allegations. They could say I don't think it has anything to do with what I'm interested in. It has to at least be an articulated reason on the record why the question was excluded to make sure there's protections of due process. The decisionmaker, however, must exclude evidence of prior sexual behavior of the complainant under the regulations, except unless there's a strict exception that applies. And those typically are to make sure you have the identity. If there's a question, or a defense that the accused did not do this, that it was somebody else that the complainant misidentified, then perhaps the identity is at play, and the prior sexual behavior could be relevant. And the other potential relevancy would be consent. If there's an alleged sexual assault, and the accused says it was consensual, there may be information that the hearing officer would admit on prior sexual behavior, but absent a very strict exception, and absent what I would say would be a very specific explanation as to the relevancy, and the import of that evidence. It doesn't come in to protect the rights of the victims under typical law, and most states have laws that prohibit what we call rape shield laws that prohibit prior sexual conduct in any sort of a criminal behavior case involving some sort of sexual assault, so similar rules apply, although the rules of evidence do not apply. I wanna focus just briefly, as I indicated, there are special hearing rules for K through 12. In a K through 12 situation, and, again, we're talking about schools that receive federal monies, federal funds. So if you have a school that has federal funds, and that must comply with Title IX, and a K through 12 program, Title IX hearing processes apply, and the live hearing requirement is not necessary to K through 12. There's no absolute right to cross-examine. There's no right to questions in real-time, as we call it. The hearing officer must afford each party to submit written questions. They're asked to be answered under oath, and follow-up questions, but there's no need for a live hearing. Again, schools should decide this in advance. They should set forth an advance meeting before any complaint is filed. And they should set forth, the school should set forth what the rules of the road are, so everybody has knowledge going into the process. After the hearing is concluded, the hearing officer will make a decision, a decision on responsibility as to whether or not a Title IX violation has occurred. And so in essence, the hearing officer acts as the judge. The hearing officer hears all the evidence, decides which questions will be asked, decides what evidence is important. The hearing officer also has to weigh credibility. These are tough decisions to make. And schools are advised that the hearing stage, you need hearing officers who are well-trained, who are most importantly unbiased people that have the ability to understand a little bit about the process of law and courtrooms. Although a lawyer doesn't need to do this, it doesn't have to be a formal judge, but have a modicum of an understanding of what the hearing process entails, what it means to be a hearing officer, and to be able to weigh credibility, and to understand and read body language, and training is critical. If schools do these processes internally, if they're internal hearing officers, if somebody in administration is designated as the hearing officer then they need to be trained. Sometimes schools will go outside before the walls of the institution, and look for third parties who will serve as investigators. A lot of times investigators, and sometimes hearing officers, they'll bring in people that have experience in these types of cases, be it an attorney, or somebody who works in this space, and an educational background, or somebody in this space. So the schools will bring in somebody from the outside who have experience in this space to conduct the hearings so that it is unbiased, and they are well-trained to address the burden, and the standards that apply. And as I indicated from the outset, it leads to the school saying to its community to be able to say to its community, this is a transparent process free of bias with both sides have rights that have been protected, and have the ability to present their case before any judgements are made. As I indicated, a core part of the hearing is to understand what is the burden of proof. And we all understand burdens of proof from criminal, or civil law in our court system, but in this type of a circumstance in a Title IX hearing, it's not beyond a reasonable doubt, which is a criminal burden. It's either going to be what we call the preponderance of the evidence standard, or a clear and convincing evidence standard. Either one of those standards will be applied. Either one of those standards will be announced in advance. A preponderance of the evidence for the lack of a better description is it's more likely than not the accusations occurred, that there was sexual harassment in violation of Title IX. More likely than not, there was quid pro quo. More likely than not, there was conduct that constituted a sexual assault. More likely than not, there was conduct that was severe, and pervasive on an objective basis. That's a preponderance of the evidence standard. Some people talk about it as 51%. I personally don't like to use percentages because it really makes it cloudy. It's just more likely than not. And a preponderance of the evidence standard is the typical standard in a civil case when you're in court. A clear and convincing standard is also used in civil cases, but it's higher than a preponderance of the evidence. It's less than beyond a reasonable doubt, but higher than a preponderance of the evidence. So it's somewhere in the middle. Clear and convincing is more than inferences I would say. More than reasonable inferences being drawn from the evidence. It's substantiated. There's tangible conviction that a violation had occurred, and it's quite a high standard. Clear and convincing is quite high. Preponderance is difficult depending on what side of the ledge you're on, but clear and convincing is quite high. And that's fine if the school decides on these types of cases. We wanna have a high standard before we impose any sort of discipline that could shape the outcome of a young adult's life. That's the choice. As long as you tell people in advance, the school is within its rights to choose the standard. The decisionmaker, the hearing officer must issue a written determination. It has to be a written document that sets forth with some particularity the findings of fact. And in those findings of fact, you'll see a lot of times in hearing officer's decisions, a weighing of credibility. The findings of fact may say, I heard the testimony of X, and I do not find X testimony credible on this point for the following reasons. It was contradicted by this person, or X contradicted in other testimony. It may be that specific and it should be that specific, particularly if a hearing officer is drawing credibility determinations with respect to a complainant, if the complainant testifies, or if a respondent testifies. If the complainant doesn't testify, or the respondent doesn't testify, the decision-making hearing officer cannot draw an adverse inference, unlike courts if somebody doesn't testify in a civil case, you can draw an adverse inference say, well, if they would've testified, I'm gonna presume I'm gonna infer that their testimony would've been harmful to them, or would've been harmful on a point. That's not permitted under Title IX regulations, but a decisionmaker if a witness of a complainant, if an accused testifies at the hearing, subject to cross-examination, makes a credibility determination that's proper. Based on other evidence that may be submitted, the body language, whether or not a witness was evasive, all the ways that you determine credibility in any type of a contested proceeding. So when the hearing officer draws these inferences, and makes these credibility determinations, they must be specific findings to support that. The more findings the better. Although, sometimes a hearing officer that's well-trained may just say, I don't find this credible, or I draw the inference and that's appropriate too. It really depends on the nature of the case. It depends on the hearing officer. The hearing officer importantly must draw conclusions whether or not ultimately the conduct that was complained of occurred. And the hearing officer has to take the facts, and the fair inferences, and the credibility findings therefrom, apply it to the Title IX standards as we indicated before, and what is sexual harassment. Apply it to those legal standards and determine was there a Title IX violation based on the fair facts that I find. And there has to be a rationale for the result, either responsible or not responsible. And then, again, this is notice. This written determination once it's concluded, it must be simultaneously sent to both parties regardless of the outcome, either finding responsible or not. And there's no specific timetable for this, but it must be done promptly. I would recommend the schools do this promptly because hanging this over people's heads is difficult. Must identify the appeal process. The decisionmaker can also be the person who imposes discipline. It doesn't have to be the recommendations can be made, or a responsibility finding can be made, and then somebody else can determine what is the discipline. With respect to an appeal it's very narrow and limited. Appeal rights obviously apply to both parties. If you're the accused and you lose you can appeal. If you're the complainant, and you find there's a finding of not responsible you can appeal, but there's very basic limited grounds for an appeal. If there's some bias irregularities in the process, if there wasn't a right to cross-examine a witness, if there wasn't a right to have a say on a piece of information that would be irregularity. If there's new discovered evidence that wasn't known of at the time, or had the ability to be known of, but it's very, very limited appeal rights. I talked about training and education already as part of the process. Training is key here. Title IX coordinators, investigators, hearing offices, all need to be trained. School personnel at all levels should be trained in sexual harassment so they can identify it, so that if there is an incident they can come forward. Even though it may not be a formal complaint, at least the school can take action. At a K through 12 we have the mandated reporter obligation. So training up and down the line here from all through faculty, staff, administration, even if they're not involved in the formal Title IX compliance an overview process is critical. I wanna talk just briefly now about the future of Title IX because it is continued to evolve even since the 2020 regulations were implemented, and enacted. And part of the change that came about was the Supreme Court case in 2020 called the Bostock decision. And in that case, the Supreme Court determined that Title VII under the Civil Rights Act, which is employment discrimination, that gender identity and sexual orientation were protected classifications for Title VII purposes. And that's important because Title IX feeds off of a bit of what Title VII says about sex, sexual harassment, and protections under law on gender sex-based discrimination. And so in 2020, the Office of Civil Rights put out a Policy Guidance based on Bostock, and recognized that Title IX could and would apply at some level to sexual discrimination, sexual harassment based on sexual orientation, and gender identity. That's a very important policy consideration based on Bostock to provide greater protections under law, under Title IX. Because of that OCR policy guided statement the Biden administration in March of 2021 issued executive orders to the Department of Education, to look at the Title IX regulations to make sure that they guaranteed access to education based upon sexual orientation and gender identity to make sure that everybody had the free ability to participate in the educational environment, and have those educational opportunities as Title IX mandates. In 2021, there was a virtual hearing where 600 plus people appeared to comment on the review of the regulations as they existed, and implemented in 2020. And in 2022 of June, just this past June, the Department of Education released for public comment updates to the regulations as proposed amendments. They have not all been enacted, but it's likely that Title IX will be expanded to other protected classifications under law currently under Title VII and other state laws including pregnancy, gender identity, and sexual orientation discrimination. And what is significant about this for schools is that a school that has federal funding, that if there's sexual harassment, and it involves sexual harassment or discrimination based on pregnancy, gender identity, or sexual orientation, the same process we just described together of formal complaints of investigation and hearings must apply to those types of allegations. This is the process, and as I've said, it may be refined. The regulations and the comments I've seen to the regulations they're gonna expand rights to individuals, but right now it appears that most of what we discussed today in terms of the process will remain intact, including the most importantly, the cross-examination, and live hearing process we described. So from the takeaway, I wanted just to hit a couple of these points based on kind of going forward, and where we currently stand under the regulations. And these are some questions that I get from time to time from people and particularly schools, or potential school clients. I do a lot of work in the independent private school world, but I get these questions from various people asking me, does Title IX apply to all schools? Title IX applies to all schools that receive federal funds, federal program assistance. Private schools are subject to Title IX if they get federal funding, if they receive funds for individuals with disabilities, if they get federal funds under Paycheck Protection Program, the PPP loans. When those loans were in effect, and schools took that money, private schools took that money that was federal assistance. And while they were in the program, schools had to comply with Title IX. Once the schools were out of the PPP program, Title IX no longer applies, but in those circumstances, Title IX applies to private schools. Right now there are cases in courts where they're trying to expand the definition of participation in federal program assistance to include private school exemption under the IRS tax code as tax exempt entities. There's arguments and the judge has found that by taking advantage of the tax exempt regulations under the IRS code that that's federal program assistance. And that would be a sea change if, in fact, that were upheld by the federal courts, that would mean all private schools would have to participate, and meet the Title IX requirements. I will say this, even if a school does not comply with Title IX, does not require to comply with Title IX, all schools have and should have policies and procedures that protect and promote free, and open educational programming to all students, and all people through other policies and procedures. Sexual harassment, whether or not it's under Title IX, or state law, or federal law, or just good ethical conduct should be prohibited. And schools probably do this anyway, even if it's not a Title IX school. Schools can take disciplinary action if there's not a Title IX violation as we discussed. Lawyers are not allowed to participate in the Title IX process. They could be if the school wanted to, but they're not required. And the decisionmaker at the Title IX hearing, the hearing officer can be different from the person who makes the final determination on discipline for Title IX. The hearing officer can find responsibility, and kick that up to another senior administrator who makes a decision about discipline. And in fact, there are some state laws that require that. In a private school setting, it could be the dean of students, it could be the head of school. So the hearing officer would determine liability, and another person would determine discipline. So there is flexibility. The takeaway here from the schools is make sure that you have policies in effect. Make sure you look at what are your policies and procedures. Make sure that you have the training around these areas, and make sure that you talk to your legal counsel if you have any questions because this is a complicated, and ever-evolving area of the law. I hope that you found this presentation helpful, and beneficial as you go through your operational needs at your schools. And I wish you the best of luck in all of these difficult circumstances. This is Peter Carr signing off, thank you.

Presenter(s)

PC
Peter Carr
Member In Charge
Eckert Seamans Cherin & Mellott

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