Title IX Update for K-12 Schools: Ensuring Compliance and Security

Title IX Update K-12 Overview Security & Investigations: March 2022

Agenda Getting Started Definitions & Application 4)Title IX Sexual Harassment Definitions 1) What is Title IX? 5) Title IX Team Structure 2) Key Title IX-Related Issues 6) When Does Title IX Apply? 3) Compliance Elements 7) Title IX and Security & Investigations 2

What Is Title IX? 1

What is Title IX? 20 U.S.C. 1681 & 34 C.F.R. Part 106 (1972) No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any educational program or activity receiving federal financial assistance. 4

Why Does This Matter for Security? Any school/district has actual notice of sexual harassment or sexual misconduct, the school must: Students may go to you with Title IX issues thinking you are the correct person to contact If you do not follow the school/district s Title IX grievance procedures, the district could be found in violation of Title IX (OCR complaint, lawsuit) Schools may not be aware of the difference between a criminal investigation and a Title IX investigation. Schools have their own obligation to conduct a Title IX investigation. 5

Key Title IX Related- Issues 2

Sex/Gender-Based Discrimination Program Equity Sexual Harassment Quid Pro Quo Hostile Environment Athletics Sexual assault Salaries & Benefits Domestic Violence Pregnancy Dating Violence Sex, Sexual Orientation, Gender Identity Stalking Extra-curricular activities Employment, Recruitment, & Hiring 7

Title IX Compliance Elements 3

For K-12 Schools: Any school/district has actual notice of sexual harassment or sexual misconduct, the school must: Take immediate & appropriate steps to investigate what occurred (even if it is just an initial assessment) Take prompt and effective action to: Stop the harassment Prevent the recurrence Remedy the effects (regardless of whether a formal complaint is filed) 9

Title IX Sexual Harassment Definitions Under the 2020 Regulations 4

Title IX Sexual Harassment Definitions: Conduct on the basis of sex that satisfies one ore more of the following: 1. Quid Pro Quo 2. Hostile Environment Respondent must be an employee. Severe, (AND) pervasive, and objectively offensive (Gebser standard) There must be a power dynamic (aid/benefit/service) Conduct must be unwelcome to the complainant Examples: Teacher/student or employee/employee Reasonable person: In the view of the complainant Pervasive: Widespread. Openly in front others. Objectively offensive: humiliating/intimidating/physically threatening Note: The fact that someone made an individual uncomfortable or said something offensive is not enough to qualify as sexual harassment under the 2020 regulations. 11

Title IX Sexual Harassment Definitions: 4. Dating Violence 5. Domestic Violence 6. Stalking 3. Sexual Assault Rape Dating Violence: Individuals in a social/romantic/intimate relationship Conduct where a reasonable person: Sodomy 1) Fears for their safety or the safety of others or Sexual Assault with an Object Domestic Violence: Can include former spouses, intimate partners, individuals who share a child, cohabitating partners 2) Suffers substantial emotional distress Fondling Incest Statutory Rape 12

Title IX Team Structure 5

Title IX Team Members Decision- Makers (Deputy Title IX Coordinators) District Title IX Coordinator Investigators 14

When Does Title IX Apply? 6

When does the Title IX regulatory process apply? It is the Title IX Coordinator s job to decide, using the Davis v. Monroe county Standard: 1) Control over the respondent (can you discipline this individual?); and 2) Control over context of the harassment. The alleged sexual harassment must have occurred within your education program or activity. In other words, it had to occur at a location, during events, or under circumstances where school has substantial control Note: If this is not a Title IX regulatory issue, the conduct can go through the student code of conduct process, through harassment/discrimination process, HR, etc. 16

When does the Title IX regulatory process apply? Even if there is no Title IX jurisdiction: District/School should still take steps to provide support and resources to the Complainant (address any downstream effects ) Determine if there are patterns of institutional variables that contributed to the alleged incident 17

Title IX and Security & Investigations 7

Title IX and Security & Investigations Abuse or Suspected Abuse of Minors All employees are required to report abuse or suspected abuse of minors consistent with state law. This generally includes immediately reporting to law enforcement and to the state s child welfare agency. 19

Role of Law Enforcement and Issues of Concurrent Criminal Action Criminal investigations do not relieve the school of its duty to respond promptly and effectively Law enforcement investigation isn t the same as school investigation. The Title IX statute does allow investigations by school officials and police to take place concurrently. School grievance process must be concluded in a reasonably prompt time frame Flexibility to temporarily delay the grievance process due to concurrent law enforcement activity Delay must be temporary brief or limited Must have good cause for the delay 20

Role of Law Enforcement and Issues of Concurrent Criminal Action (Continued) OCR Investigation, Public Schools of Robeson County Although a school district may need to delay temporarily the fact-finding portion of a Title IX investigation while the police are gathering evidence, once notified that the police department has completed its gathering of evidence (not the ultimate outcome of the investigation or the filing of any charges), the school district must promptly resume and complete its fact-finding for the Title IX investigation. 21

Lindsay Wright Assistant General Counsel, Jefferson County Public Schools lindsay.wright@jefferson.kyschools.us