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You are a school district administrator and you just received a complaint about sexual harassment between your students and/or employees. What do you do?
Complaints that meet the definition of sexual harassment under Title IX will require specific actions by the school district, including an appropriate response, investigation, and remedy. This blog will break down the steps for dealing with a concern or complaint of sexual harassment in schools.
Supportive Measures
A school that receives notice of an alleged sexual harassment incident must offer supportive measures to both parties, regardless if a formal complaint is filed. These measures are designed to help the complainant and respondent feel safe and restore or preserve their access to the school's education program or activity. The school must consider the complainant's wishes when determining which supportive measures to provide, and they may not provide measures that would unduly burden the other party. Supportive measures are confidential unless a party needs to know, such as in the case of a no-contact or stay-away order.
The school has the discretion to decide which supportive measures are appropriate during the Title IX complaint process. These measures could include things like counseling, changes to work or class schedules, and increased security. In cases where there is an immediate threat to safety, the school may remove the respondent from the program or activity on an emergency basis. The respondent must be notified of the decision and given the opportunity to challenge it.
Title IX complaint process
The Title IX coordinator must explain to the complainant that they have the right to file a formal complaint. A formal complaint is a document accusing sexual harassment against a respondent, requesting that the school investigate the allegation. A parent or guardian can also file a formal complaint on their behalf. If the complainant is not currently enrolled or attending the school, they may still file a formal complaint if trying to participate in the school’s education program. If the complainant has not filed a formal complaint, the Title IX coordinator is allowed to initiate one. The school is required to take action even if the respondent leaves before a formal complaint is filed and has no plans of returning. The school should study the facts and circumstances of the case before deciding whether to dismiss the complaint if the respondent is no longer at the school. Dismissing a complaint for not meeting the definition or jurisdictional requirements of Title IX, does not mean the investigation should stop - a prompt, thorough investigation is still required under state harassment laws and local policies.
After the Title IX Complaint
Once a Title IX complaint has been filed, the school must investigate the allegations. If the alleged conduct does not fall under Title IX, the school may address the matter using its own policies or state laws. After a complaint has been filed, both parties may agree to go through an informal resolution process, such as mediation or restorative justice, to settle the issues. An informal resolution process cannot be used when an employee allegedly sexually harasses a student. In that case, the complaint must always go through the Title IX complaint process and should work collaboratively with law enforcement and child welfare.
Once a formal complaint is made, the person in charge of Title IX (the Title IX coordinator) will contact the accuser and the accused to let them know what the allegations are. Then, the coordinator should assign a conflict-free and unbiased investigator, decision-maker, and appeals officer. It's important to note that the Title IX coordinator might also be the one to do the investigation or facilitate an informal resolution, but not both. And they can never be the ones to make the final decision or handle appeals. Thus, Title IX sexual harassment cases currently require a minimum of 3 people to complete an investigation (1. an Investigator, 2. a Decision Maker, and 3. an Appeals Officer).
Sexual Harassment Investigation
The OCR has outlined several steps that schools must take in order to investigate complaints of sexual harassment fairly.
When it comes to investigating sexual harassment cases in K-12 schools, there are a few key things that you need to keep in mind. First and foremost, it is important to remember that these cases can be extremely sensitive in nature, and as such, should be handled with the utmost care and professionalism. Additionally, you will need to gather sufficient evidence to show that a thorough investigation was done to support your decision-making.
Some of the evidence that you may need to collect includes eyewitness accounts, written statements from the victim and any other witnesses, as well as any physical evidence that may be present.
According to new Title IX regulations, the investigator is required to presume that the respondent is not responsible for the allegation at hand during the course of the investigation process. This means that the burden of proof falls on the school and that the correct standard of evidence is applied. The investigator interviews the complainant, respondent, and any witnesses; identifies, organizes, and compiles relevant information and evidence; and then sends all evidence directly related to the allegations to both parties involved. Each party is given 10 days to respond in writing. Once the 10-day window has passed, the investigator drafts an investigative report that summarizes all of the relevant evidence. This report is sent to the decision maker and to both parties for review.
Decision-Maker Process
The next process includes decision-making. Firstly, both parties must be given the opportunity to submit questions to be asked of any witnesses or parties involved. Secondly, the decision maker must provide each party with answers to their questions and allow for limited follow-up questioning. Lastly, the determination of responsibility must be made using either the preponderance of the evidence or clear and convincing evidence standard, and this decision must be explained in writing. Both parties have the right to appeal the decision.
At the postsecondary level, schools must have a live hearing where each party’s advisor must be permitted to ask the other party and witness all relevant questions and follow-up questions, including those challenging credibility. The standard of proof used in the hearing must be provided to both parties in advance, and the school must use either the preponderance of the evidence or clear and convincing evidence standard consistently for both students and employees. After the hearing, the decision maker will reach a determination of responsibility, which must be explained in writing. The complainant must then be notified of any remedies designed to restore or preserve equal access to the school’s education program or activity. Both parties have the right to appeal the decision.
Appeals Process
The opportunity to appeal must be provided in writing to both parties. A decision may be appealed based on procedural irregularity, new evidence, and/or conflict of interest/bias. The formal Title IX complaint process is complete either when the time period for appeal has elapsed or upon issuance of the appeal officer’s decision on a timely filed appeal. Disciplinary action, if applicable, cannot be imposed on the respondent until the Title IX appeal process is completed. Once the process is complete, the respondent may receive notice of his or her rights based on the potential discipline. If the respondent is a special education student, a manifestation determination must be held if the student is to be removed for more than 10 days and the school district knows or has reason to know that the student has a disability.
Sexual Harassment Training for Investigators
The investigator(s) working on a Title IX complaint must be properly trained in order to gather all the necessary evidence and complete an unbiased investigation. Training is required for investigators and must be publicly posted on your district's website. McGrath Training Solutions offers training for the intake and investigation of sexual harassment complaints to ensure a consistent process and thorough investigation by all administrators.
Liability
If administrators who conduct an investigation of sexual harassment complaints are not trained it may result in incomplete investigations and poorly documented evidence and investigation reports. Concerns and complaints that are not investigated well can result in continued harm to students, may not identify patterns and may fail to remedy a hostile environment. School districts may be sued for their failure to appropriately address sexual harassment. For example, in Florida, a jury awarded a single plaintiff $6 million dollars after a teacher sexually abused her during her junior and senior years in school. The abuse included child pornography and forcible kissing and touching. The school had previously received reports of sexual abuse but failed to investigate. In Colorado, a school district settled a claim for $5 million dollars. A teacher was alleged to have sexually abused a student when she was nine years old. The school knew the teacher had a history of inappropriate conduct but failed to act to prevent the abuse. These are just two examples of many cases in which schools have failed to protect students from sexual abuse. The district was found liable for failing to take appropriate action in response to the allegations. In both cases, the school districts were sued under Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education. There is no better prevention and protection from liability than to ensure that your school district is responding well to every concern and complaint. Don't forget to document - if it is not in writing - it didn't happen! The McGrath Response System is designed to address issues of discrimination, harassment, and bullying. It covers student-to-student, student-to-staff, staff-to-staff, and staff-to-student interactions and is compliant with the new Title IX Final Rule. Schools need to ensure that their employees are trained in how to identify and report these kinds of behavior so that appropriate action can be taken. Failing to do so can result in harm to the students and staff, as well as legal liability for the school district and individuals involved.
STAFF AWARENESS & RESPONSE
INTAKE & INVESTIGATIONS
INSTRUCTOR CERTIFICATION
STUDENT AWARENESS & RESPONSE
McGrath Training Solutions provides education and communication training for school staff and employment practices so they are equipped to handle any Title IX-related issue that may come up and offer risk management. We offer comprehensive coverage of all aspects of compliance with Title IX, from student awareness training to investigation and documentation of complaints. Our goal is to help your school be prepared for any changes that may come down the line so that you can create a safe and inclusive environment for all students. Contact us today.