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Avoiding Title IX Litigation

Avoiding Title IX Litigation. WVASA Winter Conference January 24, 2019. Steptoe & Johnson PLLC Susan Llewellyn Deniker ( 304) 933-8154 s usan.deniker@steptoe-johnson.com. Overview. The Past – A Historical Perspective Pre- TIX Claims TIX & TIX Regulations Sub-Regulatory Guidance

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Avoiding Title IX Litigation

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  1. Avoiding Title IX Litigation WVASA Winter Conference January 24, 2019 Steptoe & Johnson PLLC Susan Llewellyn Deniker (304) 933-8154 susan.deniker@steptoe-johnson.com

  2. Overview • The Past – A Historical Perspective • Pre-TIX Claims • TIX & TIX Regulations • Sub-Regulatory Guidance • Respondent Litigation • Trump Administration Impact • The Present • The Future

  3. Pre-TIX Claims • No federal statutory prohibitions on sexual misconduct • Victims relegated to filing: • Criminal complaints • Civil claims • Assault • Intentional Infliction of Emotional Distress • Other

  4. TIX & TIX Regulations • TIX passed in 1972 • Simple statutory language: 20 USC §1681 • Simple regulations: 34 CFR §106 • Primary emphasis: Gender equity in athletics Source: Richard Nixon Foundation

  5. Sub-Regulatory Guidance • 2001 Revised Sexual Harassment Guidance • 2011 Dear Colleague Letter • 2014 Q&A • 2015 Role of TIX Coordinator • 2016 Transgender Guidance • Impact – “The Bad Boy List”

  6. Trump Administration Impact • 2017 repeal of 2016 transgender guidance • 2017 repeal of 2011 and 2014 guidance/ reinstatement of 2001 guidance • 2017 Q&A • 2018 Notice of proposedrulemaking

  7. Current Obligations of K-12 Schools (cont) Title IX Coordinator • Must designate at least one employee to serve as Title IX coordinator. 65 Fed Reg. 52867 at § .135(a) • Coordinates the school’s compliance efforts, including any investigations • Coordinator must operate independently • Coordinator must be trained re: state and federal law • Must publishthe Title IX coordinator’s name, office address, telephone number, and email address to the school community, including on the district’s website

  8. Current Best Practices of K-12 Schools Training of Employees/Responsible Employees (2014 Guidance, repealed) • Should provide training to all employees likely to witness or receive reports of sexual violence • Includes teachers, school law enforcement unit employees, school administrators, school counselors, general counsels, athletic coaches, and health personnel • Annual employee trainings • Responsible employee: any employee who has the authority to take action to redress sexual violence; who has been given the duty of reporting incidents of sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate school designee; or whom a student could reasonably believe has this authority or duty • Need to know how to respond appropriately to reports of sexual violence and that they are obligated to report to appropriate school officials • All other employees should understand how to respond to reports of sexual violence • Age-appropriate training for students on identifying and reporting harassment Consider training for parents and others, such as bus drivers, dining workers, volunteer coaches, and other contractors

  9. Current Best Practices of K-12 Schools Training of Employees/Responsible Employees (2014 Guidance, repealed) • Employee training: • How to prevent and identify sexual violence • Behaviors that may lead to sexual violence • Attitudes of bystanders that perpetuate conduct • Potential for revictimization by responders • Appropriate response to student experience • Impact of trauma on victims • To whom such misconduct must be reported • Responsible employee training: • Reporting obligation, including what should be reported and any consequences for the failure to report • The procedure for responding to students’ requests for confidentiality • Title IX Coordinator contact information

  10. Current Obligations of K-12 Schools Grievance Procedures • Title IX regulations do not currently specify a structure or format for the grievance procedures • Each school/district must develop and publishits own grievance procedures • Grievance procedure must be aimed to promptly and equitably resolve complaints • School must adopt and regularly and consistently notify the public of its anti-discrimination policy. 65 Fed. Reg. 52867 at § .140. • Must make clear to the public how, where, and with whom to file a complaint

  11. Current Obligations of K-12 Schools Grievance Procedures • If a school does not have grievance procedures and anti-discrimination policy in place, there is a Title IX violation regardless of whether harassment occurred

  12. Current Obligations of K-12 Schools Grievance Procedures • 2001 Guidance Impact on Grievance Process Still Applicable: • Notice to school’s procedure, including where to file • Application to harassment by employees, other students, or third parties • Adequate, reliable, and impartial investigation • Designated, prompt timeframes for key steps • Notice to parties of outcome • Assurance of steps to prevent recurrence & correct effects • Plethora of Respondent Litigation

  13. Current Obligations of K-12 Schools Did a Title IX violation occur? • Is the conduct sexual harassment? • Does the conduct deny or limit a student’s ability to participate in or benefit from the program based on sex? • Did the school respond promptly and effectively/reasonably?

  14. Current Obligations of K-12 Schools Sexual Harassment • A student may be sexually harassed by a school employee, another student, or a third party • Sexual harassment: • Quid pro quo - teacher or other employee conditions an educational decision or benefit on the student’s submission to unwelcome sexual conduct • Unwelcome sexual conduct that creates an intimidating, hostile, orabusive environment that is so severe or pervasive it prevents a student from fully participating in an educational program or activity • Sufficiently serious standard • Can be verbal or written sexual statements, graffiti, name-calling, and sexual advances • Can be in-person or via cellphones or the Internet

  15. Current Obligations of K-12 Schools Response Obligations • School’s obligations under 2017 Interim Guidance: • To take immediate action to understand what occurred and to respond appropriately • Regardless if the student files a complaint • When the school “knows or reasonably should have known about sexual harassment or sexual violence” that creates a hostile environment • Failure to act or “deliberate indifference” finding could result in civil liability or removal of federal funding

  16. Current Obligations of K-12 Schools Notice • A school can receive notice of harassment in many different ways: • Responsible employee “knew, or in the exercise of reasonable care should have known • Another student, parent, or other individual may have contacted other appropriate personnel, such as a principal, campus security, bus driver, teacher, or staff • Indirect (member of the school staff, a member of the educational or local community, or the media) • Employee witnessed the conduct • Formal complaint

  17. Current Grievance Requirements Response Obligations • A school must respond promptly and effectively to stop sexual harassment and prevent its recurrence. • May be responsible for remedying effects of harassment • Currently requires investigation with or without formal complaint • If there is a complaint, the Coordinator should: • Explain the grievance process to the parties’ parents (if the parties are minors) • Provide the victim with support services such as counseling or other supportive measures • Comply with all notice and other grievance procedure requirements

  18. Current Grievance Requirements Investigation • All investigations must be prompt, thorough, and impartial • Do not wait for a law enforcement investigation to be completed • May be appropriate for a school to take interim measures during the investigation • Title IX coordinator and/or deputy coordinator may be expected to conduct all investigations

  19. Current Grievance Requirements Interim Measures • Consider: specific needs of student, age, severity or pervasiveness of the allegations, any continuing effects on the student, whether the complainant student and alleged perpetrator share the same dining hall, class, transportation, whether other judicial measures have been taken to protect the complainant • Possible supportive measures: • Notify the complainant /complainant’s parents of his or her options to avoid contact with the alleged perpetrator • Allow a to change academic and extracurricular activities or his or her transportation, dining, etc. • Make the complainant aware of any available resources, such as victim advocacy, academic support, counseling, disability services, health and mental health services, and legal assistance, and the right to report a crime to local law enforcement • Could require providing increased monitoring, supervision, or security at locations or activities where the misconduct occurred

  20. Current Grievance Requirements Investigation • Investigator or separate decision-maker with or without a hearing, must: • Make findings of fact and conclusions regarding violation • Provide each party with the same information and processes • Provide parties with opportunity to respond to investigation report in writing in advance of the decision

  21. Current Grievance Requirements Investigation • After completion of the investigation: • Provide written notice of outcome of disciplinary proceedings to the reporting and responding parties’ parents concurrently • Provide any individual remedies offered or sanctions imposed • Provide parties with timeframes to appeal, if allowed

  22. Current Grievance Requirements Due Process Rights • Applies to public school employees and students • Title IX interpretation must be consistent with any federally guaranteed due process rights • Additional or separate rights may be created for employees or students by state law, institutional regulations and policies, such as faculty or student handbooks, and collective bargaining agreements

  23. Respondent Litigation • Defamation • Title IX violations • Deliberate indifference • Hostile environment • Erroneous outcome • Selective enforcement • Negligence • Fraud

  24. Respondent Litigation • Negligent misrepresentation • Intentional infliction of emotional distress • Negligent infliction of emotional distress • Breach of the implied covenants of good faith and fair dealing • Invasion of privacy • BREACH OF CONTRACT

  25. The Future • Continuing impact of #MeToo Movement • Recent campaigns #MeTook12 and #KnowYourTitleIX bringing awareness in K-12 • Respondent litigation & due process arguments • Notice of proposed rulemaking

  26. Proposed Rulemaking • November 16 Notice of Proposed Rulemaking • Overview of Process • Publication in Federal Register • Sixty-day comment period • Agency Response to Comments and Adoption of Proposed Regs

  27. Rationale for Rulemaking • Current regs adopted in 1975 • Substantial judicial interpretation of TIX since 1975 • Guidance documents created confusion

  28. Proposed Rulemaking • The proposed regulation includes: • Background and Reasoning • New Definition of Sexual Harassment. 34 CFR106.30 • School’s Obligation to Respond. 34 CFR 106.44(a) • How a School Must Respond. 34 CFR 106.44(a)-(b) • Grievance Procedure. 34 CFR 106.45(a)-(b)(1)-(7)

  29. Obligation to Respond Re-defined • Proposed Rulemaking adopts “actual knowledge” standard from Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999) • School must only respond when 3 conditions are met: • The school has actual knowledge of sexual harassment (or allegations of sexual harassment).  • The alleged harassment involves conduct that occurred within the school’s own education program or activity. • The alleged harassment is perpetrated against a person “in the United States.”

  30. Obligation to Respond Re-defined • What is “actual knowledge”? • Notice of sexual harassment or allegations of sexual harassment to those individuals described below only • Imputation of knowledge based solely on respondeat superior or constructive notice is insufficient to constitute actual knowledge • Not met when the only school official with actual knowledge is also the respondent • To whom does it need to be reported? • The school’s Title IX Coordinator; or • Any official of the school who has authority to institute corrective measures on behalf of the school; or • To a teacher in K-12 with regard to student-on-student harassment. Proposed § 106.30 • Mere ability or obligation to report sexual harassment does not qualify an employee, even if that employee is a school official • Effectively eliminates the mandatory “responsible employee” concept

  31. Sexual Harassment Re-defined • The Proposed Rulemaking defines sexual harassment, under 34 CFR 106.44(e)(1), to be limited to the following: • Quid pro quo - A school employee conditioning an educational benefit or service upon a person’s participation in unwelcome sexual conduct   • Unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity; or • Sexual assault as defined in the Clery Act regulations [34 CFR 668.46(a)]

  32. Response Procedures & Requirements • Schools with actual knowledge of sexual harassment allegations must respond in a manner that is not deliberately indifferent. 34 CFR 106.44(a)-(b). • Duty to file and investigate (K-12)

  33. Due Process Protections • Under 34 CFR 106.45(a)-b(3), the proposed rule offers enhanced “due process” protections for all formal resolutions, including: • Live Hearings (optional for K-12); • Objective evaluation evidence; • Presumption of non-responsibility; • School’s burden of proof /burden of gathering evidence; • Single-investigator models are prohibited • After the recipient has conducted its impartial investigation, a separate decision-maker must reach the determination regarding responsibility • This may be a panel, but no decision-maker can be the same person who served as the Title IX Coordinator or investigator

  34. Proposed Grievance Procedures • Basic requirements – 34 CFR 106.45(b)(1) • Treat complainants and respondents equitably • Require objective assessment of all inculpatory and exculpatory evidence without regard to person’s status • Prohibit conflicts of interest by all involved in hearing • Include a presumption that respondent is not responsible until proven otherwise • Include reasonably prompt timeframes

  35. Proposed Grievance Procedures • Basicrequirements – 34 CFR 106.45(b)(1) (cont’d) • Describe range of possible sanctions and remedies • Describe the standard of evidence • Include procedures and permissible bases for parties to appeal, if appeals are permitted • Describe the range of supportive measures available to parties

  36. Proposed Grievance Procedures • Notice – 34 CFR §106.45(b)(2) • Requirements following formal complaint • Notice of grievance procedures • Notice of specific allegations and potential violations • Statement of presumption that respondent not responsible • Notice of opportunity to review all evidence • Notice of any student code prohibition on false statements • Ongoing notice obligations

  37. Proposed Grievance Procedures • Investigation – 34 CFR §106.45(b)(3) • Evaluate whether complaint allegations constitute: • Sexual harassment • Within an educational program or activity • Recognize burden of proving andgathering evidence is on school • Provide equal opportunities for parties to provide inculpatory/exculpatory evidence and witnesses • Preclude restrictions on parties’ ability to discuss allegations

  38. Proposed Grievance Procedures • Investigation – 34 CFR §106.45(b)(3) (cont’d) • Provide parties with equal opportunity to have others present during proceeding, including an advisor of their choice (if applicable)(subject to equal limits on advisor’s role) • Provide notice of date, time, location and purpose of all hearings, investigative interviews, and other meetings with adequate time to prepare to participate

  39. Proposed Grievance Procedures • Investigation – 34 CFR §106.45(b)(3) (cont’d) • In K-12, with or without a hearing, the complainant and the respondent must have an equal opportunity to pose questions to the other party and to witnesses prior to a determination of responsibility • Each party is permitted the opportunity to ask all relevant questions and follow-up questions, including those challenging credibility • Conduct live hearing with cross-examination of witnesses by party’s advisor of choice • In K-12, a hearing is optional but where there is no hearing, the parties must be allowed to submit written questions to challenge each other’s credibility before the decision-maker makes a determination

  40. Proposed Grievance Procedures • Investigation – 34 CFR §106.45(b)(3) (cont’d) • Provide access to evidence prior to completion of investigative report • Parties may respond in writing within 10 days • Investigator must consider responses prior to completion of investigative report • Create investigative report • Provide copy of investigative report to parties for their written response • Provide final report to parties 10 days before hearing

  41. Proposed Grievance Procedures • Determination of responsibility – 34 CFR §106.45(b)(4) • Utilize decision-maker who is notTIX coordinator or investigator • Apply same standard of evidence for students as it does for employees • Preponderance of evidence or • Clear and convincing evidence • Decision-maker must issue written decision

  42. Proposed Grievance Procedures • Determination of responsibility – 34 CFR §106.45(b)(4) (cont’d) • Include following in written decision • Identification of section of code of conduct allegedly violated • Description of procedural steps • Findings of fact • Conclusions regarding application of policy to facts • Rationale for findings/conclusions for each allegation • Procedures and permissible bases for appeals • Remedies the school will provide the survivor and sanctions • Deliver decision simultaneously to parties

  43. Proposed Grievance Procedures • Appeals – 34 CFR §106.45(b)(5) • Appeals are optional, but if allowed, both parties may appeal • Requirements for appeals • Notice to other party when appeal is filed • Appeal decision-maker must be different from Title IX Coordinator, investigator, or hearing decision-maker • Prohibit conflicts of interest by appeal decision-maker • Provide both parties with opportunity to submit written statements supporting/opposing hearing outcome • Decision must be in writing and set forth rationale • Decision must be delivered to parties simultaneously

  44. Proposed Grievance Procedures • Informal Resolution – 34 CFR §106.45(b)(6) • Available on voluntary basis at any time • Parties must be provided with written notice of • Allegation • Requirements of informalresolution process • Consequences ofparticipating in process • Consent must be inwriting

  45. Proposed Grievance Procedures • Recordkeeping – 34 CFR §106.45(b)(7) • Formal complaint investigations, including training materials for coordinators, investigators, and decision-makers, must be maintained for three years • Responses to reportsand formal complaintsmust be maintained forthree years

  46. Clarification of Existing Regs • No damage assessments – 34 CFR §106.3(a) • Constitutional protections - 34 CFR §106.6(d) • Impact on FERPA – 34 CFR §106.6(e) • Impact on Title VII – 34 CFR §106(f) • TIX coordinator duties – 34 CFR §106.8(a) • Dissemination of policy – 34 CFR §106.8(b)

  47. Notification of Policy • Recipients of notice – §106.8(b)(1) • Applicants for admission and employment • Students • Employees • Unions or professional organizationsholding CBAs or professional agreements • Places of publication – §106.8(b)(2) • Website • Handbooks/Catalogs to recipientsof notice

  48. Notification of Policy • Contents of notice • §106.8(b)(1) requirements • School does not discriminate on the basis of sex in its education program or activity • School is required by Title IX and 34 CFR §106 not to discriminate • Prohibition against discrimination applies to employment and admission • Inquiries should be directed to Title IX coordinator, the Assistant Secretary, or both

  49. Notification of Policy • Contents of notice (Cont’d) • §106.8(c) requires notice of grievance procedures be given to students and employees, including • How to report sex discrimination • How to file or respond to a complaint of sex discrimination

  50. Clarification of Existing Regs • Adoption of grievance procedures – 34 CFR 106.8(c) • Application – 34 CFR 106.8(d) limits application to persons within the United States

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