Title IX Coordinators are a school district’s primary resource for identifying sex discrimination, including sexual harassment. They help resolve grievances and train school staff on gender equity. They play a critical role in ensuring schools take proactive steps in complying with Title IX:
Having a Title IX Coordinator in place is not only required law, it is also essential for helping schools fulfill their mission of providing students with the best possible education. ––Title IX at 45: Advancing Opportunity through Equity in Education
On this page, SSAIS inaugurates a new series showcasing best practices from experienced K-12 Title IX Coordinators across the country.
by Megan Farrell, Title IX and Civil Rights Officer, Palo Alto Unified School District
Among the many challenges faced by K-12 school districts during this school year, the Department of Education released its long-awaited Final Rules under Title IX (“New Rules”). The regulations require sweeping changes for districts and are required to be implemented by August 14, 2020. These changes require districts to change policies, procedures and practices around sexual harassment and emphasize the due process rights of the accused.
The Dear Colleague Letters issued by the Office for Civil Rights in 2011, 2014, and 2016 (all rescinded) were considered non-regulatory guidance. Thus, schools could implement or refuse to implement the recommendations. Failing to follow those recommendations would be at their peril of course. The New Rules followed the administrative requirement of Notice and Comment period, and thus these requirements have the force of law, and all schools are required to follow them.
As of June 15, 2020, we note that several Attorneys General throughout the United States have joined in litigation against the Department of Education. That suit seeks to overturn some of this guidance and also stay the implementation date of August 14, 2020, giving all education institutions more time to digest and implement requirements. However, this same group appealed to the Department of Education to hold off issuing these new rules during the pandemic, and such pleas fell on deaf ears.
Below is a brief summary of ten of the changes that will have great impact on how K-12 school districts manage Title IX complaints as well as links to additional Department of Education resources on these new rules.
1. Notice of Sexual Harassment
K-12 schools must respond when ANY employee has notice of sexual harassment. In the past, districts may have designated only some employees as “responsible employees” with this duty. Because ALL employees have this responsibility under the new rules, districts need to ensure that ALL employees are trained on Title IX, how to recognize potential claims, and how to report it internally to the Title IX Coordinator.
2. Definition of Sexual Harassment
The Final Rules have redefined sexual harassment, limiting the definition and scope. This narrow definition is contrary to other legislation. The definition is as follows:
Sexual harassment means conduct on the basis of sex that satisfies one or more of the following:
1. Quid pro quo sexual harassment;
2. Hostile environment sexual harassment, defined as unwelcome conduct determined by a reasonable person to be so severe, pervasive and objectionably offensive that it effectively denies a person equal access to the recipient’s education program or activity (emphasis added); or
3. Sexual assault, dating/domestic violence, or stalking (uses Violence Against Women/Clery Act definitions)
This definition will limit when a sexual harassment policy violation is found. On its face, it appears that the definition restricts when a hostile environment can be found.
3. Jurisdiction for Title IX
The Final Rules clarify that a school must dismiss actions that do not occur in an education program or activity under Title IX. Initially, it is noted that a complainant must be currently enrolled or attempting to enroll in an educational program or activity for the complaint to be accepted. Thus, an individual who had transferred out of the district and/or graduated from the district could not file a complaint. The prior guidance looked broadly at what would be investigated, and in many cases, schools would be required to look into a matter even if a complainant or respondent was no longer attending school in the district.
Further, the New Rules state that these matters MUST be dismissed if they:
- Would not fit within the definition of sexual harassment
- Did not occur in an education program or activity of the school
- Did not occur in the United States
In addition, the New Rules state that a school MAY dismiss complaints if the:
- Complainant withdraws formal complaint in writing
- Respondent is no longer enrolled as a student or employed by school
- Circumstances prevent school from gathering evidence that would be sufficient to reach a determination
Each of these limits when a school may respond. Under the New Rules, there are more options for a school to dismiss a matter. In fact, the New Rules make some of those dismissals mandatory.
4. Requirement of Formal Complaint
Schools are required to investigate formal complaints received in writing from the complainant. The Title IX Coordinator may file and sign a formal complaint. However, the New Rules note that if the complainant does not file a formal complaint, the wishes of the complainant should be respected unless the Title IX Coordinator decides to initiate the complaint and it is “clearly not unreasonable in light of the known circumstances.” The New Rules include no guidance on what a Title IX Coordinator should consider in a determination about bringing a complaint.
5. Response to Report
The obligation imposed on a school is that it cannot be deliberately indifferent to a report of sexual harassment (this Gebser standard was issued in a Supreme Court decision in 1999). Mandatory obligations include offering “supportive measures” to a complainant that must be non-punitive, non-disciplinary, and not unreasonably burdensome on the other party. The measures must be designed to provide both parties with equal access to their education, protect safety, and deter sexual harassment. A school cannot take any measure that could be construed as disciplinary against a respondent at this stage. The New Rule indicates supportive measures are available to a respondent after a formal complaint is filed. Many of the “interim measures” that schools provided in the past would not be available to the school at the report stage, potentially opening up the door to continued harassment.
6. Grievance Process
The New Rule identified specific requirements that must be included in the sexual harassment grievance process. Some of these changes are:
- Process must be fair, equitable, without bias or conflict of interest, not reliant upon stereotypes
- Advisors for the parties are permitted, and in some instances, must be provided to the parties
- Separate decision-makers must be involved in process – i.e., investigator separate from the ultimate decision-maker (policy violation decision)
- Either a preponderance of the evidence or clear and convincing standard can be used to make determinations.
- The burden is on the school to gather evidence to support a finding
- Process cannot violate any constitutional protections of any party – First, Fifth and Fourteenth Amendments
- All information gathered in the investigation process must be shared with both parties before a decision is issued
- Appeal allowed for both parties
7. Hearing Panel
The New Rule permits but does not require K-12 schools to hold a hearing to adjudicate the matter after the initial investigation is completed. A hearing would allow for cross-examination of parties and witnesses by the advisor to a party. If one party has an advisor and the other does not, then the school must provide a trained advisor for the other party for its hearing. The hearing could be run by an officer or a panel. Specific training is required for all panelists/officers. In the absence of a live hearing, the parties will be permitted to submit questions that will be asked of other parties and witnesses by the decision-maker before a final decision is issued. Because of the substantial burden of instituting a hearing process, it is unlikely that most K-12 schools will voluntarily adopt this model.
8. Informal Resolution
Informal resolution is permitted after the filing of a formal complaint, review of the informal process by the parties, and agreement to participate in the informal process. Either party can leave the informal process and return to the formal process at their election before a final decision is made. In light of the new procedural requirements, schools are expected to develop informal resolution processes to provide a viable option to participants to resolve the matter without going through a time-consuming process.
The Final Rules indicate that both parties should have an appeal process available after dismissal of a formal complaint or a finding of policy violation. This appeal process must include the following basis:
- Procedural irregularity that affected the outcome of the matter;
- Newly discovered evidence that could affect the outcome;
- Title IX personnel had a conflict of interest or bias that affected the outcome.
Schools are permitted to include other bases for appeal beyond those outlined above.
The New Rules abandon the 60-day investigation completion guideline and advises schools to complete investigations within a reasonable period of time. This open-ended guidance may allow schools to unnecessarily delay investigations in the future.
. . .
As the information above indicates, the changes for K-12 school districts are significant. Districts need to assess the changes that must be made and move quickly with the impending implementation date. While many Title IX advocates do not feel that these new regulations do enough protect victims, they do have the force and effect of law. The implementation date of 8/14/20 means that these changes need to be in place, and staff will need to be trained before the next school year.
Megan Farrell is the Title IX Coordinator and Civil Rights Officer for PAUSD and can be reached at email@example.com. She also consults with K12, colleges, and universities on Title IX. You can reach her at Megan@titleixconsult.com.
Resources from the U.S. Department of Education
Listen to Megan Farrell’s podcast “A Clearer Understanding of Title IX in the School System” as she discusses Title IX compliance in K-12 schools during the Covid-19 school shutdown.
Immediate Response is Key to Successful Title IX Response
by Megan Farrell, Title IX and Civil Rights Officer, Palo Alto Unified School District
When I joined Palo Alto Unified School District (PAUSD) in 2017 as Title IX Coordinator, the District had recently completed a resolution agreement with the U.S. Department of Education Office for Civil Rights (OCR) related to a wide-reaching Title IX investigation. As part of this agreement, PAUSD agreed to hire its first full-time Title IX Coordinator. While most if not all colleges and universities were well aware of the requirements related to complying with Title IX, many school districts, lacking funding and expertise, had not undertaken a concerted effort to comply.
During my tenure at PAUSD, I have had the opportunity to work closely with dedicated and professional administrators whose focus has always been on the best interest of the students. Unfortunately, many of them had not been trained in Title IX prior to my arrival and did not understand the intricacies related to its requirements for response, investigation, and conclusion. While Title IX covers all forms of sex-based discrimination (i.e., access to educational programs, parity in athletics), the majority of my work in this period has involved sexual harassment and sexual misconduct matters.
Over the course of these years with PAUSD, I have concluded that assisting administrators with an immediate, reasoned response is a critical to managing Title IX claims and achieving the goal of allowing students to pursue their education without the fear of discrimination/harassment. The information contained in this blog deals with the immediate response, oftentimes prior to the initiation of a formal/informal investigation and definitely prior to reaching a conclusion about whether the Districts’ Sexual Harassment and/or Nondiscrimination policies have been violated.
Below are my suggestions for both Title IX Coordinators and school level administrators to assist in the process.
What is NOTICE of a Title IX matter?
As general guidance, a district is deemed to have notice of a Title IX matter when a “responsible employee” learns of a situation that may give rise to a Title IX complaint that the district must investigate. Under OCR guidance, responsible employees are those who have authority to redress or a duty to report incidents of sexual violence, or those who students reasonably believe have this authority or duty. In many districts, responsible employees include administrators, counselors, and teachers. At PAUSD, all employees of the District regardless of their title are considered responsible employees. The information regarding who is a responsible employee at any given District should be included in the District policies or on the website.
What is the OBLIGATION when a district learns of a Title IX matter?
As a guiding principle, districts need to remember its underlying obligation – upon notice of a Title IX matter, they must:
- Stop the harassment;
- Remedy the effects of the harassment; and,
- Prevent the harassment from occurring in the future.
What are the STEPS to an immediate, reasoned response?
Although it is difficult to predict exactly what might be necessary in any given circumstance, below is a list of considerations:
- Identify a School Point Person
For all those involved in a Title IX matter – the reporting party, the responding party, friends of both (who may have brought the initial report), and parents – the process can be intimidating and scary. Providing a party with a designated, on-campus point person can help everyone feel safe and solidify that that the District is taking the matter seriously. Normally, we try to select an administrator with whom the individual has a relationship prior to the incident. When there is not an administrator who fits, we will find a non-confidential counselor or teacher, and our Title IX Office supports the point person with any response that is necessary.
2. External Reporting Requirements
Title IX matters often trigger other reporting requirements. Upon learning of the matter, consider whether a report is necessary to:
- State welfare organization – most employees do this immediately due to mandatory reporter obligation. Districts are required to train on this mandatory reporting obligation in most states.
- Local Police
These reports are often state-mandated and cannot wait.
- Physical and Mental Health Support for Parties
Title IX matters often involve trauma and stress. Districts should ensure that they have resources to assist the parties and extend this support to other students who may be impacted. Responsible employees should know how to access this mental health support. Providing this information on the school website can assist in getting this information into the hands of those who need it.
Medical Health Assistance – Students should be given information about where to go for support after a sexual assault, maintaining evidence (clothing, etc.), and where they can receive a Sexual Assault Response Team examination.
Mental Health Support – Both parties may need the assistance of mental health professionals to manage the trauma and stress related to the Title IX matter. School resources that provide support and confidential services (if appropriate) should be shared with the parties. Initial appointments should be scheduled if possible. Districts should also compile a list of local resources, in the event that the parties may not want to receive this care through the District, including fee and free service options. Both the reporting party and the responding party should be given access to these resources.
- Academic and School Programs
Upon notification of a Title IX matter, schools need to examine how the students involved can continue to pursue their education. In many instances, this may mean altering students’ schedules and/or participation in school-sponsored activities. Prior guidance from OCR allowed preferences to be given to the requests of the reporting party. More recent guidance in 2017 advised schools to weigh the impact of the changes on both parties before instituting a change.
For example, if two students are in the same class, one may request that the other student be moved. In reaching a decision about the class, the school must weigh a number of factors and allow both parties to pursue their education. At PAUSD, we have moved one or both students, have allowed students to finish the class through independent study, moved seats, and also had class monitors attend the class going forward. Unfortunately, there is generally not a simple solution, and many factors need to be analyzed before an adequate solution is found.
Districts should review their policies before making any changes, and in complicated cases seek the advice of an expert or counsel. In addition, OCR plans to issue new regulations in the near future that could impact what schools are required to do going forward.
- Safety Measures
In order for students to pursue their education, they need to feel safe at school. Thus, schools should address what safety measures are necessary.
No Contact Directives – In general, these directives keep students from communicating while the investigation is pending. At PAUSD, we routinely issue these directives to ensure that we are preventing the possibility of continued harassment. Our directives prohibit the students from communicating with one another at school and off-campus. The prohibition includes verbal outreach and digital/social media posts about the other party.
Safety Plans – When a matter involves a serious allegation that includes potential violence, and/or students interacting frequently during the course of a normal school day, a more detailed Safety Plan can be used to address class and non-class time. Some of the areas that we usually cover in creating a safety plan include the following: designating how a student will arrive and depart from school; setting up specific routes for students to follow when traveling to and from classes; designating where students eat lunch; identifying when students use campus resources (library, technology lab); deciding who will and will not attend any school activity (dances, teams, clubs); and, including any other protections related to time/space where students might interact or run into one another.
In the K12 arena, the immediate response of the district is integral to allowing the students to feel safe and continue their education. Without a concerted response, students are left feeling unsupported and may disengage from their education. Each Title IX claim is unique and different, and the responses need to be tailored to the circumstances. Hopefully, this article can guide some of these responses and serve the best interests of the students.
Megan Farrell is the Title IX Coordinator and Civil Rights Officer for PAUSD and can be reached at firstname.lastname@example.org. She also consults with K12, colleges, and universities on Title IX. You can reach her at Megan@titleixconsult.com.
A Title IX Coordinator helps a parent whose children are sexually harassed at school
In this excerpt from the SSAIS video Sexual Harassment: Not in Our School! a mother talks with Keasara Williams, the Title IX Coordinator of San Francisco Unified School District, about the sexual harassment of her three children. Watch to find out what a the Title IX Coordinator should do so students can learn in an environment that is safe and free from sexual harassment.
How to File a Title IX Complaint in K-12 Schools: A Guide for Parents and Guardians
By Dr. Bill Howe with Stop Sexual Assault in Schools (SSAIS.org)
Dr. Howe was the Connecticut State Title IX coordinator for 17 years. He maintains a website on Title IX.
This simple guidance for parents and guardians explains how to file a complaint with your school district regarding sexual harassment, sexual violence, sex discrimination, and other violations of state and federal civil rights laws regarding gender discrimination. Some of this guidance also applies to educational programs (e.g. museum, science center) or private schools, if they receive federal funding from any source (e.g. Department of Education, Department of Agriculture, etc.). All public and private schools that receive federal funding must follow the federal civil rights law Title IX, which protects students from the impact of sexual harassment and assault on their education.
The following information should not be construed as legal advice.
- Make sure that your school or educational program is required to follow state and federal civil rights laws. Under federal law, any educational entity that receives even one dollar of federal financial support must abide by Title IX and other federal civil rights laws. Do not let schools argue that since “they do not receive Title IX money” they do not have to obey the law. For example, schools (public or private) must follow Title IX under these circumstances:
— The school receives public school district funding. Public school funds, state funds, and federal funds are commingled. Therefore, acceptance of public school district funding or state funds is essentially the same as receiving federal funding.
— If any student in your school receives grants, scholarships, or loans through the school district or through the state, that is federal funding.
— If the school receives any state funds, then the school is bound by state civil rights laws, which most likely include anti-discrimination laws such as sex discrimination and sexual harassment.
— The private school receives federal funds, such as Title I, from any number of federal agencies, such as the National Science Foundation, Department of Education, Department of Agriculture, etc.
To find out if a private school receives federal funding or how to file a complaint if it does, see Title IX and Private Schools. If your private school is one of several within an organization or diocese and even if only one school accepts federal money, Title IX applies to all schools in the organization or diocese. Learn more.
Students in parochial schools are generally not protected by state and federal civil rights laws if the schools do not accept state or federal funding. Complaints would go to the archdiocese office. However, if the complaint involves sexual assault, it could be a criminal matter that falls under police jurisdiction. Or it could be a child welfare issue, which should then also be reported to the state children welfare agency.
If your private school receives federal funding through federal agencies other than the U.S. Department of Education, such as the Department of Agriculture, it still must follow Title IX. Learn more.
- Upon finding out that a violation as occurred, determine if the child has been physically injured and if so seek medical treatment. If a sexual assault has occurred, consider preserving evidence by immediately following these steps:
* Reassure the child emotionally.
* Gather all facts immediately. Write them down in detail. The chronology (order of events) is important. Ask:
— Where did this take place?
— What time was it?
— Who was the perpetrator? How does the child know the perpetrator?
— Were there any witnesses? Get their names.
— What was the offensive behavior? Why does the child think this occurred?
— Were there any conversations at the time of the incident? Describe them.
— Where were people positioned? Draw a picture illustrating where the offense occurred.
— Were any adults notified of the incident? Get their names.
- Review the school’s policies and procedures regarding Title IX and violence. Title IX requires that schools have written policies and procedures in the student handbook. The Title IX Coordinator’s contact information should appear in the student handbook. If it doesn’t, call the district and find out who the Title IX Coordinator is.
- Call the person identified in the student handbook who is responsible for sexual harassment and assault. If a person cannot be reached, contact the school principal. If no one can be reached, leave a voice message and follow it up with an email indicating you have an urgent report of the civil rights violation and possible criminal action.
- When you reach the person in charge, make sure you get their name, title and other contact information. Reading from your notes describe exactly what your complaint is. Let the school official know that you believe that this incident is possibly a civil rights and criminal violation. Cite Title IX. Also, if your child is a special needs student, has a disability or may have been targeted because of race, religion, national origin indicate that these are also possible violations. Some federal civil rights in education laws are:
— Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681 et seq) prohibits sex discrimination in education and in employment situations that receive federal financial assistance.
— Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin in all programs or activities that receive federal financial assistance.
— Section 504 of the Rehabilitation Act of 1973 prohibits discrimination based on disability in all programs or activities that receive federal financial assistance.
— Individuals with Disabilities Education Act (IDEA) governs the equal treatment and education of special education students.
— Matthew Shepard & James Byrd, Jr. Hate Crimes Prevention Act of 2009 gives the Justice Department the power to investigate and prosecute bias-motivated violence by providing the Justice Department with jurisdiction over crimes of violence where a perpetrator has selected a victim because of the victim’s actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability.
- Write down what the school official says. Ask the school official how they plan to proceed. Get a commitment for a follow-up call. Follow up conversations with a written summary to the school.
- Get confirmation from the school official that there will be no retaliation against your child. There should be a statement in the student handbook that says so; it might be helpful to cite the page number. Get a written commitment from the school for a safety plan to ensure that your child will not be at risk during the investigation.
- Consider enlisting the help of a victim’s advocate or rape crisis organization to serve as an intermediary. Get confirmation from your school that your child will have permission to leave the classroom and seek the school counselor or other designated adult as needed.
- It is the school’s responsibility to notify law enforcement and the child welfare agency, if they deem it appropriate. School staff are mandated reporters and required to report sexual assault. You may also do so yourself.
- Allow the school district time to investigate your complaint and reach a conclusion. Often the timelines are in the student handbook. The U.S. Dept. of Education Office for Civil Rights (OCR) once considered 60 days a reasonable time for a school to complete an investigation, however that guidance has been rescinded. Many feel that this is far too long. A prompt investigation is critical. Law enforcement may ask the school to wait to complete its investigation, but this should not be an unreasonable amount of time.
- You may ask for proof that the person conducting the Title IX investigation has been trained in Title IX. Training is a federal requirement (see Cape Cod Community College, OCR Case No. 01-93-2047).
- While you notify the school, you also have the right to file a complaint with OCR. OCR generally wants to give the school sufficient time to conduct the investigation, but if they feel that the investigation is not progressing in a timely manner, you may press OCR to act.
- You may also file a complaint with the state civil rights commission and the state Department of Education. The state civil rights commission may decline to begin an investigation if OCR has already done so. At the same time, OCR most likely will not act if the state civil rights commission has already begun an investigation. OCR will most likely not act if you have contacted an attorney and begun private litigation. You can file the complaint with OCR within their 180-day limit. They may close the investigation if other agencies are investigating, but they may revisit the complaint once you have exhausted other complaint pathways. Keep in touch with OCR to determine your deadline for resubmitting.
- If the school investigates and concludes that there was no violation, ask what the appeal process is for the school district. Sometimes, schools will include a policy on appeals in the student handbook; sometimes they will not. Some schools may not have any appeal process.
- In high-profile cases, or in cases in which the alleged perpetrator is a school official, the school may hire a so-called “independent investigator” to conduct investigation. Try to vet this independent investigator to ensure that they are indeed unbiased and have no conflict of interest with the school district. For example, if the “independent investigator” is regularly hired by the district, they might not want to jeopardize future jobs by determining that the district was at fault.
- If the perpetrator is a certified teacher or administrator, you may have rights within your state to file a complaint with the state education agency and ask that their teaching credentials be revoked. This is usually done through the state education agency’s legal office.
- Even if the local law enforcement agency finds that there was no criminal action, that does not mean that there was no Title IX violation. Title IX is about protecting the student’s education from discrimination based on sex; it does not necessarily seek to determine whether a crime occurred. Similarly, a child welfare agency may find no violation of child welfare laws but there may still be a violation of Title IX. Most states have parallel (similar) state laws to Title IX.
- If the school investigation finds that you have no grounds for your complaint, you could proceed with a complaint with OCR or the state civil rights commission but generally only if you can prove that there were procedural errors, such as the person conducting the investigation was not trained in Title IX or that the school failed to follow its stated policies and procedures. At this point, you may want to consult an attorney to consider private litigation.
- The Family Educational Rights and Privacy Act (“FERPA”), generally prevents the disclosure of confidential information about other students. However, the U.S. Department of Education has ruled that in Title IX cases, parents have the right to know the outcomes of the investigation and the punishment given to the perpetrator. This is a very contentious issue since schools have been traditionally warned not to disclose any confidential information. Sometimes school districts will disclose your personal information accidentally or as retaliation. If this occurs, collect proof and file a FERPA complaint.
- Determine what you want to happen as a result of an investigation. In civil rights terminology the question is “how can we make the victim whole again?” Some things that you may want to consider for your child are:
— An opportunity to retake tests that were missed because of the incident.
— An extension to make up work to receive credit for the class after the end of the term.
— Tutoring for your child to help them make up for lost schooling and lowered grades.
— Payment for summer school to help your child get caught up in school.
— Reimbursement for out-of-pocket medical expenses because of the incident.
— Payment for counseling services for your child. You could ask the same for the perpetrator.
— You may ask for a safety plan to ensure that the perpetrator will not have any contact or share classes with your child. This may not be possible in small schools, but the perpetrator can be made to take coursework online or at another school.
— Protection against retaliation.
In addition, you could request that:
— The Title IX Coordinator receive training or advanced training.
— All faculty and staff be trained in Title IX, other civil rights laws, policies and procedures.
— All students receive additional lessons in proper school conduct, specifically in sexual harassment.
— All faculty and staff be trained by professionals to take complaints of sexual harassment and assault compassionately and effectively.
— The district review and update school policies, the employee handbook, and the student handbook.
- Filing Title IX complaints with other federal agencies. OCR only handles Title IX complaints where schools have received federal funds through the U.S. Department of Education. If your private school receives money from another federal agency, such as the Department of Agriculture, file the complaint through that agency. Follow these instructions.
To work in partnership with your school district to improve Title IX Compliance, see Parents: You Can Become the Agent of Change for Title IX Policies in Your Schools.