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Title IX Investigator Refresher Training

Fall 2020

VIEW SLIDESHOW (PDF)

Understanding the role of a Title IX Investigator, Overview of the Updated Sexual Misconduct Policy, The Complaint Process, Investigation Considerations, and Formal Adjudication

Understanding the Role of an Investigator

  • A neutral institutional fact finder and gatherer 
    • Fair and unbiased review of matter
  • Follow the Policy
    • Standard of proof
    • Avoid burden shifting
  • Make a preliminary determination regarding the charge(s) and recommendations for the parties to consider

Overview of Title IX

The law states that:

"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 education program or activity receiving Federal financial assistance..." — United States Code

Administrative Action on Title IX

  • 2011 and 2014: Obama Guidance
  • 2017: Trump Guidance
  • 2018: Rule Making Notice and Comment
  • May 2020: Final Rule Issued
  • August 2020: Final Rule effective. Board Policy updated.

What is Sex Discrimination?

Sex Discrimination > Discriminatory Acts and/or Sexual Harassment > Retaliation

What is Required under the Final Rule?

A recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States, must respond promptly in a manner that is not deliberately indifferent.

Title IX Sexual Harassment Section 106.30

  • Conduct on the basis of sex that satisfies one or more of the following:
    • (i)An employee conditioning education benefits on participation in unwelcome sexual conduct (i.e. quid pro quo); or
    • (ii)Unwelcome conduct that a reasonable person would determine is so severe, pervasive, AND objectively offensive that it effectively denies a person equal access to the school’s education program or activity; or
    • (iii) Sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking as defined in VAWA

Title IX Jurisdiction

  • Institution’s program or activity in the United States
  • Institution property
  • Institution sponsored or affiliated events [substantial control is key]
  • Buildings owned or controlled by officially recognized student organizations

Updated Sexual Misconduct Policy

Sexual Misconduct Policy = Title IX and Other Sexually Based Behavior

What Has Changed?

  • Definitions of Prohibited Conduct
  • Title IX Jurisdiction
  • Provisions on Retaliation, Amnesty, False Statements
  • Role of Advisors
  • Adjudication Process
  • Timeframe for Completion
  • More...

What Has Remained the Same?

  • Scope of Sexual Misconduct
  • Jurisdictional reach of Sexual Misconduct
  • Responsible/Confidential/Privileged Employee designations
  • Definition of consent and incapacitation
  • Standard of evidence
  • System Office oversight
  • Support services and Interim measures

Prohibited Conduct: Definitions and Jurisdiction

Key Categories of Prohibited Conduct:

Sexual Misconduct, Dating Violence, Domestic Violence, Sexual Exploitation, Sexual Harassment, Stalking, Nonconsensual Sexual Contact, Nonconsensual Sexual Penetration

Dating Violence

Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the alleged victim.

  • Includes sexual or physical abuse
  • Includes threats of such abuse
  • The existence of a covered relationship is based on the totality of the circumstances

Domestic Violence

Violence committed by:

  • a current spouse, former spouse or intimate partner
  • a person whom shares a child
  • a person who is cohabiting with or cohabitated with the alleged victim

Stalking

Engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others OR suffer substantial emotional distress. 

  • Can be direct actions or through third parties
  • Could include the use of devices or other methods
  • Includes following, monitoring, observing, surveilling, threatening, communicating to or about a person, or interfering with a person’s property

Sexual Exploitation

Taking non-consensual or abusive sexual advantage of another for one’s own advantage or benefit, or for the benefit or advantage of anyone other than the one being exploited.

Examples include:

  • Non-consensual photos, videos, or audio of sexual activity
  • Non-consensual distribution of photo, video, or audio of sexual activity, even if the sexual activity was consensual
  • Intentionally and inappropriately exposing one’s breast, buttocks, groin, or genitals in non-consensual circumstances

Nonconsensual Sexual Contact

Any physical contact with another person of a sexual nature without the person’s consent.

Includes:

  • Touching of another’s intimate parts (genitalia, groin, breasts, buttocks)
  • Touching a person with one’s own intimate parts; or
  • Forcing a person to touch his or her own or another person’s intimate parts

Nonconsensual Sexual Penetration

Any penetration of another’s body parts without the person’s consent.

Includes:

  • Penetration of the vagina, anus, or mouth by a penis, object, tongue, finger, or other body part
  • Contact between the mouth of one person and the genitals or anus of another person

Sexual Harassment (Student on Student)

Unwelcome verbal, nonverbal, or physical conduct based on sex (including gender stereotypes), determined by a Reasonable Person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to participate in or to benefit from an institutional education program or activity in violation of Title IX.

Sexual Harassment (Other)

Unwelcome verbal, nonverbal, or physical conduct, based on sex (including gender stereotypes) that may be any of the following: 

  • Implicitly or explicitly a term or condition of employment status in a course program or activity
  • A basis for employment or education decisions; OR
  • Sufficiently severe, persistent, or pervasive to interfere with one’s work or educational performance creating an intimidating, hostile, or offensive work environment 

Note: Behavior may rise to the level of a Title IX violation

Comparing Jurisdiction

  • Title IX:

    • Institution’s program or activity the United States
    • Institution property
    • Institution sponsored or affiliated events [substantial control is key]
    • Buildings owned or controlled by officially recognized student organizations

 

  • Sexual Misconduct

    • Institution property
    • Institution-sponsored or affiliated events
    • Off campus as defined by the institution policies
    • Domestic or abroad

The Complaint Process

Formal Complaint Section 106.30

  • A document filed by a Complainant OR signed by the Title IX Coordinator
  • Alleges Sexual Harassment (Title IX)
  • Requests an investigation
  • Note: must be filed while the Complainant is participating in or attempting to participate in an education program or activity

Title IX Coordinator Initiated Complaints

  • Title IX Coordinator does NOT become the Complainant
  • When to sign? (Permissible)
    • Multiple reports against the same Respondent 
    • Violent behavior or use of a weapon
  • Caution: Be mindful of bias and conflicts of interest claims

Complaint Process

  • If not a Formal Complaint under Title IX may be a complaint under Sexual Misconduct
  • Recommended: Confirm with the Complainant (in writing) that they wish to investigate their claims
  • Once a complaint is filed the timeframe for completion begins

Complaint Consolidation

  • Permissible consolidation when allegations arise out of the same facts or circumstances:
    • Against more than one Respondent
    • By more than one Complainant against one or more Respondents
    • Cross complaints
  • Parties must have the opportunity to object; institution makes final determination

Support Services and Interim Measures Section 106.30

  • Non-disciplinary, non-punitive individualized services must be offered to the Complainant
    • USG policy requires offering support services to Respondents as well
  • Offered upon receiving a report [no Formal Complaint is required]
  • Example: counseling, modifications to work or class schedules, mutual no contact directives

The Investigation Process

Evidentiary Considerations Section 106.45 (b) (5)

  • The burden of proof AND burden of gathering evidence is on the institution
  • Information protected by legal privilege, may not be accessed, disclosed or relied upon unless a waiver is obtained
  • Questions and evidence regarding the Complainant’s sexual predisposition or prior sexual behavior are not relevant, UNLESS used to prove:
    • Someone other than the Respondent committed the conduct OR
    • Offered to prove consent between the parties

Standard of Evidence

Decisions regarding student and employee alleged misconduct are based on a preponderance of the evidence

Advisors

  • Title IX Complaints

    • Parties have a right to an advisor of their choice
    • Advisor may accompany party to all meetings and hearings
    • Provided a copy of the investigation report and directly related information
    • All communication will be between the institution and the party

 

  • Sexual Misconduct Complaints

    • Parties have a right to an advisor of their choice
    • Advisor may accompany party to all meetings and hearings
    • All communication will be between the institution and the party

False Statements

Updated standard to cover false statements knowingly made to an institution official

Amnesty

Updated to explicitly only apply to information regarding student consumption of drugs or alcohol

Retaliation Section 106.71

  • Who is protected: Reporters, Complainants, Witnesses, Respondents, even those who choose to not participate
  • What is protected: Intimidation, threats, coercion, discrimination 
    • Example: Charging individuals for code of conduct violations that arise out of the same facts or circumstances
    • Example: Not keeping the identity of the Complainant, Respondent, or any witnesses confidential

The Investigation Report Section 106.45(5)(vii)

  • Must fairly summarize relevant evidence
  • An objective evaluation of the information [inculpatory and exculpatory]
    • Credibility assessments cannot be based on a person’s status
  • Sample report sections still apply
  • Final report provided to the parties at least 10 days calendar days prior to the hearing

Access to Information Section 106.45(b)(5)(vi)

  • Parties have a right to review the investigation report prior to its finalization
  • Parties have a right to receive a copy of all directly related information
  • Procedurally can occur simultaneously or at different times
  • 10 calendar days to review

Informal Resolution

Considerations

  • The institution is a party to the informal resolution
    • Informal resolution is appropriate
    • The terms of the informal resolution are appropriate
  • Parties must engage in the process voluntary
  • Parties may end the informal resolution process any time prior to reaching the terms

Informal Resolution under Title IX Section 106.45(b)(9)

  • Not permissible for student allegations against employees
  • A Formal Complaint must be filed
  • The parties have received notice and explanation of the process and consequences of informal resolution
  • The parties have voluntary agreed to engage in the process

Formal Adjudication

Live Hearing Section 106.45(b)(6)

  • The Final Rule mandates a bifurcated process
  • Final determinations of responsibility and sanctions are made by decision-makers
    • CANNOT be the Title IX Coordinator or assigned investigator
  • New due process considerations
    • Cross examination
    • Relevancy determinations
    • Impact of party or witness refusal to submit to cross-examination

Adjudication Processes

  • Students

    • All matters not informally resolved will be heard by a Hearing Panel
    • Hearing Panels comprised of trained faculty and staff
  • Employees
    • Title IX matters not informally resolved will be heard by a designated decision-maker
      • Single decision-maker OR panel
    • Sexual Misconduct matters not informally resolved will be resolved according to previously established procedures
      • Institutions may choose to offer a hearing

The Written Decision Section 106.45(b)(7)

  • Provided to both parties simultaneously must include:
    • The allegations
    • The procedural steps from the complaint through determination
    • Findings of fact supporting the determination
    • Determinations regarding responsibility, sanctions (and remedies) along with the supporting evidence and rationale
    • Information on the appeals process

Appeals

  • Parties will continue to have both institutional level and Board level appeal opportunities
  • Grounds for an appeal:
    • New information
    • Procedural Error
      • Example: Bias or conflict of interest of Title IX personnel
    • Finding inconsistent with the weight of the information