In addition to establishing a stricter definition of sexual harassment and creating a new employee reporting obligation, the U.S. Department of Education’s new Title IX regulations eliminate the “single investigator model.” Instead of one school official receiving a report of sexual harassment, investigating the complaint, deciding whether a respondent violated school policy, and recommending discipline, the new Title IX regulations split the responsibilities among four key roles: Title IX Coordinator, investigator, decision-maker, and appeals officer.
The Title IX Coordinator oversees any Title IX investigations and coordinates a school’s compliance with Title IX. This can include, among many other things, ensuring appropriate training for staff and meeting with potential complainants to offer supportive measures and the opportunity to file a formal Title IX complaint. The Title IX Coordinator’s contact information must be posted on the school’s website, and reports of sexual harassment can be submitted to the Title IX Coordinator in any format at any time. The Title IX Coordinator is the only one of the four key roles that must be filled by a school employee.
The investigator conducts the Title IX investigation. The investigator will review the formal complaint, gather and review evidence, interview witnesses and the parties, and create an investigation report. The investigator does not determine whether Title IX has been violated or make a recommendation about the determination of responsibility or potential discipline. Instead, the investigator only makes findings of fact and turns the finalized investigation report over to the decision-maker.
The decision-maker reviews the final investigation report and makes a determination of responsibility about whether a respondent has violated school policy and Title IX. The decision-maker must allow each party to submit written, relevant questions for the other party or witness(es) to answer, provide each party the answers to the questions, and allow each party limited follow-up questions. Written letters informing the parties of the determination of responsibility and their right to appeal must also be sent out by the decision-maker.
The appeals officer hears appeals from either party after a formal complaint has been dismissed or after a determination of responsibility has been issued. The appeals officer must review the submitted appeal, provide notice to the parties of the grounds for the appeal and the opportunity to submit a written statement in support of, or challenging, the dismissal or determination. Then the appeals officer must issue a written decision to the parties simultaneously.
The new regulations specify that the individuals serving as investigators, decision-makers, and appeals officers cannot be the same person. Any person who is going to serve in one of the key roles in the Title IX grievance process must be appropriately trained and not have a conflict of interest or bias that could affect the outcome of the investigation (e.g., familial or personal relationship with a party, implicit biases against a party due to previous history). Not only may a conflict of interest deprive a party of due process and undermine the legitimacy of an investigation, it also can serve as the basis for an appeal of the final determination under the new regulations.
As an assistant principal, you may be asked to serve in one of these key roles or other administrators may consult with you about concerns of potential biases or conflicts of interest. If you are asked to serve as an investigator, decision maker, or appeals officer, we recommend working closely with the Title IX Coordinator as the Title IX process progresses to ensure you are complying with all legal requirements, including ensuring that you are appropriately trained before serving in a key role. If you are asked to serve as a Title IX Coordinator, we recommend immediately attending a comprehensive training on the new regulations to ensure that you are properly enforcing compliance at your school.
Even if you are not asked to serve as Title IX Coordinator or fill one of the key roles in the new Title IX process, as assistant principal you still play an important role. Assistant principals may be tasked with ensuring supportive measures (e.g., counseling, no contact orders, moving student lockers or class schedules, moving employee work stations) are implemented consistently and no further harassment or retaliation is occurring at the building level.
It may also be your responsibility to ensure that all building employees understand their new reporting obligation. The new regulations clarify that any K-12 employee’s knowledge of alleged sexual harassment and failure to act could trigger liability for the school. Now, whenever any school employee (e.g., teacher, counselor, paraprofessional, cafeteria worker, custodian, etc.) witnesses or otherwise has notice of sexual harassment, the employee must promptly convey that information to the Title IX Coordinator.
We know many school administrators, including assistant principals, have spent this year becoming experts in cyber security, remote learning, and proper sanitization procedures. But, we encourage you to familiarize yourself with the key roles in the new Title IX process, whether you are directly involved or not, to help protect your school from liability and be a resource to your students and staff.
Written by Thrun Law Firm, P.C