Analysis of the New Title IX Regulations for Elementary and Secondary Schools

By Sadia Ahmed; Abernathy, Roeder, Boyd & Hullett, P.C.

In the midst of a pandemic, as districts prepare for various back to school scenarios, the U.S. Department of Education released new Title IX regulations that require a complete overhaul of the previous process used by elementary and secondary schools. While you navigate the ever-changing back-to-school guidance, you must now also implement a brand new Title IX process.

 Different organizations challenged the new regulations in court, but so far the challenges have been unsuccessful and are not likely to delay the effective date of implementation of August 14, 2020. This change is an about-face from the Obama era guidance, which employed a single investigator model. The previous model gave one appointed coordinator authority to investigate the allegations, and determine if a party was responsible for the alleged act(s) using the preponderance of the evidence standard. Under the new Title IX regulations, this process is expanded, and districts must employ a team of employees to implement Title IX properly.  The new rules place a heavy emphasis on impartiality and require different administrators at each step of the process. A full Title IX team now includes a Title IX coordinator, an Investigator, a Decision Maker, an Informal Resolution Officer, and an Appeals Officer. The single investigator model is no longer permitted.

Each party on the Title IX team is responsible for a specific and unique part of a case. The following is a breakdown of the different roles of the Title IX team and the corresponding responsibilities:

  1. Mandatory Reporters.

While not technically a part of the Title IX team, all district teachers and staff have a role to play in the Title IX process. The new legislation essentially turns every employee into a mandatory reporter for Title IX purposes. Any district employee with knowledge of the allegations is sufficient to establish the district is “on notice” of an allegation. The new regulations require every employee to have a basic understanding of, and training on, Title IX.

  1. Title IX Coordinator.

The Title IX Coordinator is no longer judge, jury, and disciplinarian. This role is now limited, and the Title IX Coordinator’s responsibilities are heavily emphasized at the start of the process. The Title IX Coordinator is the first point of contact for the Respondent and the Complainant for Title IX matters. These crucial early steps determine if the case should be dismissed; if a formal complaint will be filed; if a matter can be resolved informally and, if so, if the parties are willing to resolve the matter informally; and if any supportive measures are needed. The Title IX Coordinator also puts both parties on notice of the allegations and the Title IX process.

  1. Investigator.

The Investigator has the burden of collecting evidence on behalf of the district. The investigation phase is now a more interactive part of the process, as each party is allowed to submit written questions and review the evidence gathered by the Investigator. Both parties receive written notification of witness interviews. Because the new regulations focus on impartiality, the Investigator is not the individual who will make the ultimate determination of responsibility in the matter.

  1. Informal Resolution Officer.

The Informal Resolution Officer is a neutral third party who helps facilitate an informal resolution of the Title IX matter if both parties voluntarily agree to the process. This process occurs any time after the formal complaint is filed, but before a decision on responsibility is issued. However, if the allegation involves an employee sexually harassing or assaulting a student, informal resolution is not permitted due to the inherent power differential between an employee and a student.

  1. Decision Maker.

The Decision Maker is responsible for reviewing all of the Investigator’s information, applying the district’s standard of evidence (preference is the preponderance of the evidence standard to align with other standards applied to discipline and policy investigations), and making an ultimate determination of responsibility, penalties, and remedies. The Decision Maker is required to issue a very specific and detailed ruling, which includes an identification of district policies violated, findings of facts, procedural history, conclusions, rationale for the conclusions, remedies or penalties, rationale for the remedies or penalties, and rights to appeal.

  1. Appeals Officer.

The Appeals Officer is a party who has no involvement in the Title IX process until an appeal is filed.  The regulations provide three basis for appeal: 1) procedural irregularity, 2) conflict of interest or bias, and 3) new evidence. Districts are free to add additional reasons for an appeal.

One of the more contested pieces of the regulations was the requirement for a live hearing and cross-examination. This requirement is now limited to colleges and universities. Elementary and secondary schools were spared and are not required to provide a live hearing or cross-examination. However, do not be fooled that the process does not require some adversarial element. Although a live hearing is not required, the regulations heavily focus on providing due process to the parties involved. Transparency and participation by both parties are built into the process. Accused students and employees enjoy a presumption of innocence, are entitled to advisors of their choice, and the burden of proof falls on the district. The district also bears the burden of gathering the evidence, and each party is entitled to submit questions for witnesses. The district can now select from the original preponderance of the evidence standard or use a higher clear and convincing evidence standard. Whichever standard the district chooses, it must apply the standard uniformly to all Title IX cases.

This overhaul of Title IX may seem overwhelming.  Here is a basic checklist for districts to utilize to ensure compliance with the new Title IX regulations:

  • Update the district’s polices, handbooks, etc.;
  • Distribute the Title IX Coordinator’s contact information;
  • Revise the grievance process for Title IX;
  • Identify your Title IX team, and make sure they all receive training;
  • Establish an informal resolution process;
  • Determine the procedures for emergency removals;
  • Develop record-keeping protocols; and
  • Post training materials to your district website.

For more information about Title IX, please visit: https://www2.ed.gov/about/offices/list/ocr/docs/titleix-summary.pdf, or contact us at 214-544-4000.

This article should not be construed as legal advice related to any specific facts or circumstances. Although this article covers legal subjects, it is intended to educate readers and not to provide advice that will be the basis for action or inaction in any specific circumstance. Viewing these materials does not create an attorney-client relationship between Abernathy, Roeder, Boyd & Hullett, P.C. and the reader or the reader’s institution. For circumstance-specific legal advice, please directly contact a licensed attorney.