Training For Title IX Coordinators, Investigators And .

8/23/2021Trainingfor Title IX Coordinators,Investigators and DecisionMakersAshley Rohleder-Webb, KASB Staff AttorneyOn-Demand Training1

8/23/2021Introductory and BackgroundInformationSynopsis of Formal Complaintand Investigation ProcessInvestigator TrainingDecision‐Maker Training2

8/23/2021Introductory & BackgroundInformationOn Demand Training: Section 13

8/23/2021Title IX of the Education AmendmentsAct of 1972"No person in the United States shall, on the basis of sex, beexcluded from participation in, be denied the benefits of, or besubjected to discrimination under any education program oractivity receiving Federal financial assistance."4

8/23/2021 No changes to existing regulations related to athletic participation,employment, or single-sex education Defines sexual harassmentSummaryof 2020Changes Provides new terminology for use in Title IX complaints Created specific roles of Title IX Coordinator, Investigator, DecisionMaker Requires response when district has “actual knowledge” of sexualharassment Provides due process rights to accusers and accused persons in sexualharassment investigation and decision-making, as well as outlining theprocedure for response: Mandates provision of supportive measures during investigation process Prohibits retaliation Requirements of Determination of Responsibility5

8/23/2021Definition:Sexual harassment shall include conduct on the basisof sex involving one or more of the following:(1) a district employeeconditioning the provision of anaid, benefit, or service of thedistrict on an individual’sparticipation in unwelcomedsexual conduct;(2) unwelcomed conductdetermined by a reasonableperson to be so severe,pervasive, and objectivelyoffensive that it effectivelydenies a person equal access tothe district’s educationalprogram or activity; or(3) sexual assault, datingviolence, domestic violence, orstalking.Quid proQuoHostileEnvironmentVAWAdefinitions6

8/23/2021Quid pro QuoSomething forsomethingOnly perpetratedby employee7

8/23/2021Hostile EnvironmentUnwelcome conduct that a reasonable personwould determine to be so severe, pervasive,and objectively offensive that it effectivelydenies a person equal access towork/education. “denial of access”: Might include skipping a class, decline in grades,bed-wetting incidents or crying at home in youngerchildren, an older child dropping out ofsports/activities. Does not require “that a person’s total or entireeducational access has been denied.” Do not have to suffer a loss of education beforereporting Drop out, fail a class, exhibit signs of trauma No “concrete injury” required.8

8/23/2021VAWA “Big Four”Sexual AssaultDating ViolenceDomestic ViolenceStalking an offense classified as aforcible or nonforcible sexoffense under the uniformcrime reporting system ofthe Federal Bureau ofInvestigation. violence committed by aperson who is or has beenin a social relationship of aromantic or intimatenature with the victimwhere the existence ofsuch a relationship shallbe determined based on aconsideration of thelength of the relationship,the type of relationship,and the frequency ofinteraction between thepersons involved. includes crimes ofviolence committed by aperson who is a current orformer spouse, partner,person with whom thevictim shares a child, orwho is or has cohabitedwith the victim as aspouse or partner, by aperson similarly situatedto a spouse of the victimunder Kansas or applicablefederal law, or by anyother person against anadult or youth victimhaving protection fromsuch person’s acts byKansas or applicablefederal law. engaging in a course ofconduct directed at aspecific person that wouldcause a reasonable personto fear for his or her safetyor the safety of others orto suffer substantialemotional distress.9

8/23/2021“Education Program and Activities” “locations, events, or circumstances over which the recipientexercised substantial control over both the respondent and thecontext in which the sexual harassment occurs, and alsoincludes any building owned or controlled by a studentorganization that is officially recognized by a postsecondaryinstitution” Think similar to “nexus to school” consideration in studentdiscipline. “In the United States”10

8/23/2021New RolesComplainant Alleged victimRespondent Alleged perpetratorTitle IX Coordinator Oversees processInvestigator Investigates claimsDecision‐Maker (and Appeal Decision‐Maker) Uses information collected by InvestigatorInformal Resolution Facilitator Neutral 3rd party that helps parties in informal resolution process11

8/23/2021Title IXCoordinator,Investigator,Decision-Makers,or Facilitator ofan InformalResolutionProcessShall not have a conflict of interest orbias for or against the complainant orrespondent (personally or generally).Will exercise objective evaluation ofall available evidence, bothinculpatory and exculpatory, andprohibit credibility determinationsbased on a party’s status ascomplainant, respondent, or witness.Will receive training to perform theirroles12

8/23/2021TrainingRequirements the definition of sexual harassment; the scope of the education program and activities; how to serve impartially, including by avoiding prejudgment of the facts, conflicts of interest, and bias; and how to conduct a formal complaint investigationprocess, including appeals and informal resolutionprocesses. Investigators shall receive training on issues ofrelevance of questions and evidence in order forthem to create investigative reports that fairlysummarize relevant evidence, and how to preparean investigation report. Decision-makers shall receive training on issues ofrelevance of questions and evidence, includingwhen questions and evidence about thecomplainant’s sexual predisposition or prior sexualbehavior are not relevant.13

8/23/2021ImpartialityAvoidPrejudgmentof the Factsat IssueTitle IX Coordinator’sinitial determinationto dismiss/notdismiss is notprejudgmentConflicts of InterestFamily member, closefamily friend, etc.Past DealingsBiasCannot Relyon Sex‐StereotypesPersonal bias or biasfor certain parties, byvirtue of their statusascomplainant/respondent/witness.14

tion, threats, coercion, ordiscrimination, including charges against anindividual for code of conduct violations thatdo not involve sex discrimination or sexualharassment, but arise out of the same factsor circumstances as a report or complaint ofsex discrimination, or a report or formalcomplaint of sexual harassment, for thepurpose of interfering with any right orprivilege secured by title IX or this part,constitutes retaliation.Complaints alleging retaliation may befiled according to the formal complaintinvestigation procedures for sexdiscrimination.No district or other person may intimidate,threaten, coerce, or discriminate againstany individual for the purpose ofinterfering with any right or privilegesecured by title IX or this part, or becausethe individual has made a report orcomplaint, testified, assisted, orparticipated or refused to participate inany manner in an investigation,proceeding, or hearing under this part.15

8/23/2021Retaliation Prohibited The exercise of rights protected under the First Amendment doesnot constitute retaliation prohibited by Title IX. Charging an individual with a code of conduct violation for makinga materially false statement in bad faith in the course of a formalcomplaint investigation proceeding does not constitute retaliation,provided, however, that a determination regarding responsibility,alone, is not sufficient to conclude that any party made amaterially false statement in bad faith. The district must keep confidential the identity

Training for Title IX Coordinators, Investigators and Decision-Makers . No changes to existing regulations related to athletic participation, employment, or single-sex education Defines sexual harassment . includes any building owned or controlled by a student