Title IX & Sexual Misconduct

On May 6th, 2020, after two years of debate, the U.S. Department of Education released its final regulations regarding sexual harassment and assault under Title IX of the Education Amendments of 1972. The final regulations elicited more than 100,000 comments by institutions of higher education and victims' advocates and organizations.  

The new regulations are comprised of more than 2,000 pages that address, amongst other issues, the definition of sexual harassment, due process requirements, and mandated elements of the written grievance procedure. The summary that follows provides a brief overview of the impact of the new Title IX regulations and the steps that will be necessary for the College to achieve compliance by the August 14th, 2020 implementation date. 

Reporting Process 

The new regulations expand the requirements of schools to ensure that its community members are aware of the reporting process. In addition to notifying students and employees of the Title IX Coordinator's contact information, schools are required under the new regulations to also advise applicants for admission and employment, as well as all unions, of the name, office address, email address, and telephone number of the designated Title IX Coordinator.

Notice 

Postsecondary institutions, unlike K-12 schools, are permitted to determine their own mandatory reporting policy for employees. Notice to the Title IX Coordinator or to an official with authority to institute corrective measures is considered as constituting actual knowledge. 

Jurisdiction 

In accordance with the new regulations, schools must respond when sexual harassment occurs in the school's education program or activity against a person in the United States. Education programs and activities include locations, events, or circumstances over which the school exercises substantial control over both the respondent and the context in which the sexual harassment occurred, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution (such as a fraternity or sorority house). This definition of education programs and activities no longer applies to study abroad programs. However, given that Title IX represents a floor and not a ceiling, schools may continue to address sexual harassment affecting its students or employees that falls outside Title IX's jurisdiction, including providing supportive measures or pursuing discipline. 

Mandatory Response Obligations of Post-Secondary Institutions Receiving Federal Funding 

The new regulations impose a deliberate indifference standard (e.g. not clearly unreasonable in light of the circumstances) in order for a school to be found legally culpable for mishandling sexual misconduct allegations. Schools are required to respond promptly to misconduct prohibited under Title IX and have the following mandatory response obligations: 

• The Title IX Coordinator must promptly contact the complainant confidentially to offer supportive measures (available with or without the filing of a formal complaint), consider the complainant's wishes, and explain the process for filing a formal complaint.
• Schools are required to investigate sexual harassment allegations in any formal complaint.
• If the allegations in a formal complaint fails to meet the definition of sexual harassment or did not occur in the school's educational program or activity, the school is required to dismiss the allegations for purposes of Title IX, but may address the conduct under the school's code of conduct.

Revised Definition of Sexual Harassment  

The new regulations adopt a narrower definition of sexual harassment in that it imposes a reasonable person standard and redefines sexual harassment as conduct on the basis of sex that meets one of more of the following descriptions: 

1. Quid pro quo harassment
2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and (previously or) objectively offensive that it effectively denies a person equal access to the school's educational program or activities, or 
3. Sexual assault, dating violence, domestic violence, or stalking as defined by the Clery Act or VAWA.

First Amendment Considerations 

The new Title IX regulations provides enhanced First Amendment protections. By adopting the Supreme Court's definition in Davis of sexual harassment (requiring the conduct to be severe and pervasive and objectively offensive), the new regulations purport to allow schools the ability to balance Title IX enforcement with free speech concerns. Furthermore, the new regulations explicitly prohibit sex-based misconduct in a manner consistent with the First Amendment and provides that the exercise of rights protected under the First Amendment does not constitute retaliation. 

Formal Complaints 

A formal complaint is an official document alleging sexual harassment. It may be filed by the student, their parent or legal guardian, or the Title IX Coordinator. In cases where an alleged victim does not file a formal complaint, the Title IX Coordinator may initiate grievance procedures where discipline is appropriate. At the time of the filing of the complaint, the complainant must participate or be attempting to participate in an educational program or activity at the school. There is no time limit or statute of limitations on a complainant's decision to file a formal complaint. 

Written Grievance Procedure 

Schools' written grievance procedures addressing sexual misconduct must abide by the new regulations and, at a minimum, satisfy the following requirements: 

• The school's grievance process must treat complainants and respondents equitably. 
• The grievance process must ensure an objective evaluation of all relevant evidence, including inculpatory and exculpatory evidence. 
• Individuals involved in the Title IX process (i.e. coordinator, investigators, decision-makers) must not have any bias or conflict of interest, and must be properly trained.  
• The respondent must be presumed not responsible. 
• The grievance process must include reasonably prompt time frames for resolving formal complaints of sexual harassment. Temporary delays are permitted only for good cause, which may include involvement by law enforcement, the absence of a witness or party, or the need to provide language assistance or disability accommodations.  
• The grievance process must describe the range of possible remedies and disciplinary sanctions that could occur following a determination of responsibility. 
• The grievance process must state which standard of evidence the school will rely upon to reach a determination regarding responsibility. Whichever standard is adopted by the school must be consistently used for all formal complaints of sexual harassment. 
• The grievance procedures must offer both parties the right to appeal on the following bases: 1) procedural irregularity that affected the outcome of the matter, 2) newly discovered evidence that could affect the outcome of the matter, and/or 3) Title IX personnel had a conflict of interest or bias that affected the outcome of the matter. 
• The grievance process must describe the supportive measures available to complainants and respondents.
• The grievance process must explain that privileged information (i.e. attorney-client or doctor-patient privilege) cannot be used in an investigation unless the person holding the privilege has waived it.

Moreover, the regulations refer to alleged victims as complainants and alleged perpetrators as respondents, irrespective of whether the formal grievance process has been initiated. The grievance process must be applied equally to both complainants and respondents.

Emergency Removals  

Schools remain empowered to remove a respondent from the school's education program on an emergency basis if the respondent poses an immediate threat to the health or safety of others. Likewise, the new regulations do not prevent a school from placing an employee who is the respondent in a Title IX complaint on administrative leave pending an investigation. 

Supportive Measures  

Supportive measures are free, individualized measures offered to either party to restore or preserve equal access to education, protect safety, or deter sexual harassment. Supportive measures are not intended to be punitive and should not unreasonably burden another person. A formal complaint need not be filed for a school to provide supportive measures, which may include extensions of deadlines, a community escort, counseling, modifications of work or class schedules, mutual restrictions on contact between individuals, or changes in housing location. The Title IX Coordinator is responsible for implementing supportive measures, which should be kept confidential and should be guided by the complainant's wishes.

Informal Resolution 

A school may not require the parties to participate in informal resolution and may not offer informal resolution unless a formal complaint is filed. Any party may opt to withdraw from the informal resolution process and resume the grievance process at any time. Informal resolutions are not appropriate in cases involving allegations that an employee sexually harassed a student.

Investigations 

The new regulations require schools to investigate the sexual harassment allegations of any formal complaint, which demands written notice to both parties upon receipt of the formal complaint. Additionally, written notice is required for investigative interviews, meetings, and hearings. Where a school elects to dismiss a complaint, written notice of the dismissal and the reasons for the dismissal must also be provided to the parties.

It is the responsibility of the school, and not the parties, to gather relevant information. The parties must be provided with an equal opportunity to present facts and witnesses.

Parties and their advisors are entitled to evidence directly related to the allegations, which must be provided to them in electronic or hard copy format with at least 10 days to review, inspect, and respond to the evidence.

Schools are permitted to consolidate formal complaints that arise from the same set of facts.

Over the course of an investigation, schools may not restrict the parties' ability to discuss the allegations or gather evidence.

Hearings

Live-hearings with cross-examination are mandated for post-secondary institutions under the new Title IX regulations. The examination process is to be conducted by hearing officers or advisors, not the parties.  

In the case of cross-examination, a hearing officer must first decide if the questions are relevant. Questions about a person's sexual history are not considered relevant unless it could establish consent or prove that someone other than the accused student is responsible for the misconduct. If a party or witness does not submit to cross- examination at the live hearing, the decision-maker may not rely on any statement of that party or witness in reaching a determination regarding responsibility.

Virtual hearings are permitted, and are not considered a due process violation. Schools must create an audio or audiovisual recording, or transcript, of any live hearing and make it available to the parties for inspection and review.

If a party does not have an advisor, the school must provide an advisor of the school's choice free of charge.

At the conclusion of the hearing, the decision-maker must issue a written determination that includes findings of fact, conclusions about whether the allegations occurred, the rationale for the findings, any sanctions imposed, and any remedies offered to the complainant. The written findings must be provided simultaneously to the parties and include information regarding the process for filing an appeal. The decision-maker cannot be the same person as the Title IX Coordinator and investigator.

Standard of Evidence 

The new regulations preserve the preponderance of the evidence standard by permitting schools to choose which evidentiary standard to employ. The standard selected by the school must be consistently applied to all sexual misconduct investigations regardless of whether the respondent is a student or an employee.  

Appeals 

The new regulations stipulate the basis for an appeal. A school must offer both parties an appeal from a determination regarding responsibility, and from a school's dismissal of a formal complaint or any allegations, on the following bases: 1) procedural irregularity that affected the outcome of the matter, 2) new evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made that could affect the outcome of the matter, and/or 3) the Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias that affected the outcome of the matter.

Title IX Law

Title IX of the Education Amendments of 1972 (Title IX) is a federal civil rights law that prohibits discrimination on the basis of sex in federally funded educational programs and activities.  Under Title IX, sexual assault and sexual harassment are forms of discrimination o n the basis of sex. The Department of Education's Office for Civil Rights, which enforces Title IX, has recently provided detailed guidance on how educational institutions like LWTech must investigate and respond to complaints of sexual assault and sexual harassment. Learn more in Question and Answers on Title IX and Sexual Violence from the Department of Education.

Definitions

1. Consent means knowing, voluntary, and clear permission by word or action, to engage in mutually agreed upon sexual activity. Each party has the responsibility to make certain that the other has consented before engaging in the activity. For consent to be valid, there must be at the time of the act of sexual intercourse or sexual contact actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.
   
   A person cannot consent if they are unable to understand what is happening or are disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drugs. An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated has engaged in nonconsensual conduct.
   
   Intoxication is not a defense against allegations that an individual has engaged in nonconsensual sexual conduct.
2. Complainant means an individual who is alleged to be the victim of conduct that could constitute Sexual Harassment.
3. Respondent means an individual who has been reported to be the perpetrator of conduct that could constitute Sexual Harassment.
4. Formal Complaint means a writing submitted by the Complainant or signed by the Title IX coordinator alleging Sexual Harassment against a Respondent and requesting that the College conduct an investigation.
5. Education Program or Activity includes locations, events, or circumstances over which the College exercised substantial control over both the Respondent and the context in which the alleged Sexual Harassment occurred. It also includes any building owned or controlled by a student organization officially recognized by the College.
6. Grievance Procedure is the process the College uses to initiate, informally resolve, and/or investigate allegations that an employee or student has violated Title IX provisions prohibiting sexual harassment.
7. Supportive Measures are non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the Complainant or Respondent regardless of whether the Complainant or the Title IX Coordinator has filed a Formal Complaint. Supportive Measures restore or preserve a party's access to the College's education programs and activities without unreasonably burdening the other party, as determined through an interactive process between the Title IX Coordinator and the party. Supportive Measures include measures designed to protect the safety of all parties and/or the College's educational environment and/or to deter Sexual Harassment or retaliation. Supportive measures may include, but are not limited to,
   1. counseling and other medical assistance,
   2. extensions of deadlines or other course-related adjustments,
   3. modifications of work or class schedules,
   4. leaves of absence,
   5. increased security or monitoring of certain areas of campus, and
   6. imposition of orders prohibiting the parties from contacting one another in housing or work situations.
   7. Determinations about whether to impose a one-way no contact order must be made on a case-by-case basis. If supportive measures are not provided, the Title IX Coordinator must document in writing why this was clearly reasonable under the circumstances.
8. Summary Suspension means an emergency suspension of a student Respondent pending investigation and resolution of live hearing proceedings pursuant to the procedure and standards set forth in WAC
9. Sexual Harassment, for purposes of these Title IX Grievance Procedures, Sexual Harassment occurs when a Respondent engages in the following discriminatory conduct on the basis of sex:
   1. Quid pro quo harassment. A College employee conditioning the provision of an aid, benefit, or service of the College on an individual's participation in unwelcome sexual conduct. 
   2. Hostile environment. Unwelcome conduct that a reasonable person would find to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the College's educational programs or activities or College employment. 
   3. Sexual assault. Sexual assault includes the following conduct: 
      1. Nonconsensual sexual intercourse. Any actual or attempted sexual intercourse (anal, oral, or vaginal), however slight, with any object or body part, by a person upon another person, that is without Consent and/or by force. Sexual intercourse includes anal or vaginal penetration by a penis, tongue, finger, or object, or oral copulation by mouth to genital contact or genital to mouth contact. 
      2. Nonconsensual sexual contact. Any actual or attempted sexual touching, however slight, with any body part or object, by a person upon another person that is without Consent and/or by force. Sexual touching includes any bodily contact with the breasts, groin, mouth, or other bodily orifice of another individual, or any other bodily contact in a sexual manner. 
      3. Incest. Sexual intercourse or sexual contact with a person known to be related to them, either legitimately or illegitimately, as an ancestor, descendant, brother, or sister of either wholly or half related. Descendant includes stepchildren, and adopted children under the age of eighteen (18). 
      4. Statutory rape. Consensual intercourse between a person who is eighteen (18) years of age or older, and a person who is under the age of sixteen (16). 
      5. Domestic violence. Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking committed by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the State of Washington, or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of the State of Washington, RCW 26.50.010. 
      6. Dating violence, Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking committed by a person (i) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (ii) where the existence of such a relationship shall be determined based on a consideration of the following factors: 
         1. The length of the relationship; 
         2. The type of relationship; and 
         3. The frequency of interaction between the persons involved in the relationship. 
      7. Stalking. Engaging in a course of conduct directed at a specific person that would cause a reasonable person to (i) fear for their safety or the safety of others; or (ii) suffer substantial emotional distress. 
10. Title IX Administrators are the Title IX Coordinator, Title IX investigators, the Student Conduct Officer, Student Conduct Committee members, Decision Maker Panelist and College-provided advisors assigned to the parties by the College during Title IX live hearing proceedings. 
11. Title IX Coordinator is responsible for processing Title IX complaints and conducting and/or overseeing formal investigations and informal resolution processes under this Grievance Procedure. Among other things, the Title IX Coordinator is responsible for: 
    1. Accepting and processing all Title IX reports, referrals, and Formal Complaints. 
    2. Executing and submitting a Formal Complaint when appropriate and necessary. 
    3. Handling requests for confidentiality. 
    4. Determining during the Grievance Procedure (i) whether a Formal Complaint should be dismissed either in whole or in part, and if so, (ii) providing notice to both parties about why dismissal was necessary or desirable, and (iii) referring the complaint to the appropriate disciplinary authority for proceedings outside the jurisdiction of Title IX. 
    5. Maintaining accurate records of all complaints, reports, and referrals, and retaining investigation files, complaints, reports, and referrals in compliance with the applicable records retention schedules or federal or state law, whichever is longer. 
    6. Conducting investigations or assigning and overseeing investigations. 
    7. Engaging in an interactive process with both parties to identify and provide supportive measures that ensure during the investigation and live hearing processes that the parties have equitable access to education programs and activities and are protected from further discrimination or retaliation. 
    8. Upon completion of an investigation, issuing or overseeing the issuance of a final investigation report to the parties and the appropriate disciplinary authority in compliance with this Grievance Procedure. 
    9. Recommending non-disciplinary corrective measures to stop, remediate, and/or prevent recurrence of discriminatory conduct to disciplinary authorities and other College administrators.

• Introduction to New Title IX Model Grievance and Discipline Procedures
  June 24, 2020
  Bruce Marvin, Assistant Attorney General, Education Division - Seattle 
• New Title IX Overview with AG Bruce Marvin
  June 17, 2020
  Bruce Marvin, Assistant Attorney General, Education Division - Seattle 
• Title IX Coordinator Training
  February 6, 2020
  Presented by Julia Dunn, Associate Dean of Students & Title IX Administrator at Whitman College 
• Title IX Investigator Training 
  February 4-5, 2020
  Presented by Julia Dunn, Associate Dean of Students & Title IX Administrator at Whitman College
• Civil Rights Investigator Certification Course - Level Two
  October 22-23, 2018
  Presented by Association of Title IX Administrators (ATIXA)
• Civil Rights Investigator Certification Course - Level One
  November 29-30, 2017
  Presented by Association of Title IX Administrators (ATIXA)
• Title IX Investigator Training
  November 16-17, 2017
  Presented by Julia Dunn, Associate Dean of Students & Title IX Administrator at Whitman College 

• Introduction to New Title IX Model Grievance and Discipline Procedures 
  June 24, 2020
  Bruce Marvin, Assistant Attorney General, Education Division - Seattle 
• New Title IX Overview with AG Bruce Marvin
  June 17, 2020
  Bruce Marvin, Assistant Attorney General, Education Division - Seattle
• Initial Overview of and Response to the New Regulations 
  May 11, 2020 
  Presented by ATIXA - Brett A Sokolow, W. Scott Lewis, Kim Pacelli, Saundra K. Schuster, Daniel C. Swinton 
• EDU: Clery Act Basics 
  December 18, 2019 
  Everfi Foundry (formerly known as Lawroom) 
• Managing Bias 
  May 21, 2019 
  Everfi Foundry (formerly known as Lawroom) 
• Intersections: Prevention Harassment & Sexual Violence 
  April 27, 2019 
  Everfi Foundry (formerly known as Lawroom)
• Civil Rights Investigator Certification Course - Level Two 
  October 22-23, 2018 
  Presented by Association of Title IX Administrators (ATIXA)
• Civil Rights Investigator Certification Course - Level One 
  November 29-30, 2017 
  Presented by Association of Title IX Administrators (ATIXA) 
• Title IX Investigator Certification Course - Level One 
  October 28-29, 2014 
  Presented by Association of Title IX Administrators (ATIXA) 

• Initial Overview of and Response to the New Regulations 
  May 11, 2020
  Presented by ATIXA - Brett A Sokolow, W. Scott Lewis, Kim Pacelli, Saundra K. Schuster, Daniel C. Swinton
  Civil Rights Investigator Certification Course - Level Two 
  October 22nd & 23rd, 2018
  Presented by Association of Title IX Administrators (ATIXA)
• Title IX Investigator Training
  August 7-9, 2018
  Presented by Julia Dunn, Associate Dean of Students & Title IX Administrator at Whitman College 
• Civil Rights Investigator Certification Course - Level One
  November 29-30, 2017
  Presented by Association of Title IX Administrators (ATIXA)