We have been living with the 2020 Title IX regulations for well over a year, but some basics continue to trip us up. One of the biggest for primary and secondary schools is helping building-level administrators remember to hit the brakes when they learn of sex-based misconduct. Rushing to collect statements, impose consequences (even temporary ones), and collect other evidence could lead to a Title IX violation if the conduct ends up being covered by the law. For this reason, in my opinion, if a school system does one thing this fall to address Title IX, training building-level admins and employees to stop, drop, and call the Title IX office as soon as they learn of any conduct based on sex.

Not a week goes by without a K-12 Title IX administrator calling me to ask how to handle this situation: A student reported sex-based misconduct to their assistant principal (or dean, or school counselor or social worker, or even teacher). As the administrator or employee always does, they asked the reporting student to write down a statement. They pulled the alleged perpetrator aside—again, per their routine for student discipline—taking their statement, as well. Maybe the administrator or employee even sent the suspected student home for the day so things could cool off. And often, the administrator or employee spoke to a few witnesses to get their written statements while the incident was fresh on their minds. Then, remembering that few hours of Title IX training they had back in 2020, they reached out to their supervisor and the Title IX Coordinator to report the allegation.

In almost every case, the administrator or employee handled the matter extremely well from a real-world perspective. The situation was under control, and the evidence was collected, so what’s the problem? The problem is that Title IX is not the real world, at least not these days. Addressing the conduct promptly, thoroughly, and effectively is not alone sufficient to comply with the many legal requirements of the 2020 Title IX rules. Assuming the conduct alleged meets the definitions of Title IX sexual harassment, was in an education program or activity of the school, and was against a person in the U.S., the administrator or employee could have missed any number of steps in the detailed grievance process required by the law.

What steps might be missed? To name a few:

1. The Supportive Measures Meeting. Once an educational institution has actual knowledge of alleged Title IX sexual harassment in its education program or activity and in the U.S., the Title IX Coordinator or their designee must, before doing anything else, confidentially meet with the alleged victim of the reported conduct (the “Complainant”), offer the Complainant supportive measures, explain the process for filing a formal Title IX sexual harassment complaint, explain that supportive measures are available even if no formal complaint is filed, and assess the Complainant’s wishes concerning supportive measures.
2. Confidentiality. See that word “confidentially” in #1 above? Yes, that word is in the rules. As OCR explains in the preamble, Complainants should have the autonomy to decide when a report will be investigated except in the most serious cases. OCR did not want Complainants to “feel dissuaded from reporting sexual harassment … due to a desire for the complainant’s identity to be withheld from the respondent,” and so the rules are clear that “unless and until a formal complaint is filed, the final regulations do not require a recipient to disclose the complainant’s identity to a respondent….” Thus, “unless a particular supportive measure affects the respondent in a way that requires the respondent to know the identity of the complainant (for example, a mutual no-contact order), the Title IX Coordinator need not, and should not, disclose the complainant’s identity to the respondent during the process of selecting and implementing supportive measures for the complainant” or until a formal complaint has been filed by the Complainant or signed by the Title IX Coordinator or designee.
3. Notice, Prep Time, and Parents/Advisor Presence for Respondent. The rules require that before the educational institution interviews the respondent in a formal Title IX complaint, it must give the respondent (and their parents/guardians, if they are a minor) written notice, including sufficient details of the allegations known at the time. A Respondent should be able to have their parents/guardians and an advisor of their choice at any investigatory interview or meeting. The commentary to the rules explains that a school can theoretically question a respondent before a formal complaint has been filed, so long as they do not identify the Complainant when doing so. But, the preamble also explains that the school may not use the results of such questioning as part of any future investigation or adjudication if a formal complaint is later filed by the Complainant or signed by the Title IX Coordinator. So, the results of the interview must be ignored. Such segregation can often be tricky to manage in a later investigation.
4. No Discipline Before the Process. Sending the student home from school could be an issue, at least if done without oversight by the Title IX Coordinator. The rules require that the Title IX process, including the investigation, decision-making process, and appeal, be completed before punitive or disciplinary sanctions are imposed on the respondent. Although the rules allow for “emergency removals,” they do so only in specific circumstances, and the Title IX Coordinator or designee should oversee the determination of whether an emergency removal applies.

What is a Title IX Coordinator to do? We know you can’t be everywhere at once, and that you rely on building administrators and employees to serve as your first line of defense for sexual misconduct cases. But it’s clear that we need to slow down the process to avoid potential missteps.

To do so, two types of training are essential. The first is investigator training for building-level administrators, social workers and counselors, and anyone else who might be involved in investigating misconduct complaints at the building level. The second is an all-employee training that explains how to report and respond to knowledge of sex-based misconduct. These two training sessions will help teach your team to stop, drop, and call the Title IX office any time they learn of a report of misconduct involving sex. Yes, that means they will report some conduct to the Title IX office that ultimately is not covered by Title IX. But wouldn’t you rather that your well-trained Title IX team at the District or network level make the hard decisions about whether Title IX applies? As the attorney for many of you, I sure do!

The good news is Thompson & Horton has training sessions that can quickly help you meet these goals. To discuss further, reach out to me at jwernz@thlaw.com.