Overview of the New Title IX Regulations and a Practical

Equality & Civil Rights

Overview of the New Title IX

Regulations and a Practical Guide

to Investigating Title IX Sexual

Harassment in the School Setting


Objectives/Learning Outcomes:• Gain an understanding of the requirements under the new Title IX

regulations

• Understand your role in the Title IX grievance process

• Understand your and the District’s obligations

• How to document, report, and identify to whom the report should go

• Learn the “how to-s” for conducting an investigation into misconduct, in

particular, sexual harassment

• Learn of the resources available to you and the individuals involved


Section 1:

• Office of Equality & Civil Rights:– Who we are and what we do

• MPS Policies:– Discrimination and Harassment, both based on

protected characteristics

– Title IX: Sexual Harassment: What is it and what’s

new?

• Your reporting obligations


Mission of Office of Equality & Civil Rights

The Office of Equality & Civil Rights (E &CR) is

tasked with working collaboratively with all our

stakeholders in enforcing non-discrimination and equal

treatment for all our students, employees, parents and

other stakeholders.


MPS Policy

• 4000 – Equal Employment Opportunity

• 4001 – Disability Non-Discrimination

• 4002 – Harassment and Violence

Prohibition: Protected Classes

• 5050 – Title IX Non-Discrimination

• 5201 – Bullying and Hazing Prohibitionhttp://policy.mpls.k12.mn.us/

http://policy.mpls.k12.mn.us/


Protected Classes

Race

Culture

Color

Creed or religion

National origin

Gender

Mental or physical ability

Age

Pregnancy

Marital status

Family structure

Citizenship status

Sexual orientation/affectional preference

Gender identity or expression

Economic status

Veteran’s status

Status with regard to public assistance

Genetic information


Where Do the Protections Come From?

Laws

– Age Discrimination in

Employment Act

– Americans with Disabilities

Act as Amended (Title II)

– Title VI & VII & IX

– Equal Pay Act of 1963

– Pregnancy Discrimination

Act

– Minnesota Human Rights

Act

– Case Law

– Age Discrimination in

Employment Act

– Americans with Disabilities

Act as Amended (Title II)

– Title VI & VII & IX

– Equal Pay Act of 1963

– Pregnancy Discrimination

Act

– Minnesota Human Rights

Act

– Case Law


What is Discrimination?

• Actions (verbal or physical)

taken based on a “protected

category”

• Impact employment /

educational decisions

• Interfere with equal

employment/educational

opportunities


Discrimination

MPS anti-discrimination policy may be

violated by a failure to reasonably

accommodate:

1) sincerely-held religious observances or

practices, or

2) mental or physical disabilities.


Harassment – Protected Class

• Unwelcome conduct

• Because of a protected status

• Offensive to recipient and to a

“reasonable person”

• Severe or pervasive enough to create a

hostile educational environment

(students) OR unreasonably interfere

with job performance (employees)


Examples


Title IX


Title IX

▪ New Regulations: Issued May 6, 2020

▪ Effective and Enforceable August 14, 2020

▪ Amend the Code of Federal Regulations

▪ Intervening variables may impact enforcement going forward

(pending lawsuits, election, etc.)

▪ The Regulations

▪ Significant, legalistic, prescriptive, and very due process heavy

▪ Enforceable by OCR


Title IX: Sexual Harassment

Three types of misconduct on the basis of

sex (collectively referred to as sexual

harassment):

1. Quid pro quo (employee misconduct

directed at others)



Examples of quid pro quo sexual harassment (employee to student):

• A drama teacher informs a student that they could get the lead in the school

musical if they spend more one on one time together, including at the teacher’s

home.

• A coach comments to a student athlete, “you seem to be dragging lately…maybe

you’ll recover better if I give you extra attention with massages and stretching

sessions after practices. I bet you’ll perform better and you’ll get that spot on

varsity that you’ve been wanting.”

• A teacher tells jokes about female students’ developing bodies, including about

their observations on students’ chest and buttocks areas. One student always

seems upset by these jokes and does not laugh. The teacher notices and tells the

student to “lighten up” and stops calling on the student in class.



Examples of quid pro quo sexual harassment (employee to employee):

• A supervisor brushes up suggestively against an employee and tells him

that, “if he plays his cards right,” he could get a promotion.

• A supervisor has a romantic relationship with his direct report. The

supervisor gives the direct report a promotion as a special favor.

• An employee becomes visibly disturbed when his supervisor makes

sexual jokes in meetings. As a result, the supervisor stops inviting him to

team meetings.



2. Any unwelcome conduct (on the basis of sex)

that a reasonable person would find so severe,

pervasive, and objectionably offensive

(“S.P.O.O”) that it denies a person equal

education access (also applies to working

environment).



General examples of conduct that could constitute sexual

harassment (*have to rise to the threshold level):

▪ Unwanted comments on appearance

▪ Sexual jokes

▪ Display of sexually offensive material

▪ Unwanted physical contact

▪ Invasion of personal space

▪ Repeated requests for personal information or dates


Title IX: Sexual Harassment Examples of “S.P.O.O” sexual harassment:

• A high school teacher constantly makes romantic advances towards a student, like

telling the student how attractive they are; how the student makes them “feel

excited;” offers to take the student out; and tells other students about their feelings

for this one student. Lately, he has been telling her about his plans for their future

together and that she is “his.”

• One student often “bumps into” another student– making physical contact on the

buttocks and/or groin areas. The student also routinely talks to the other student

about their personal dating life, including details about intimate activities/sexual

acts. The student sends multiple texts a day to the other student with jokes that are

sexually explicit and sometimes pornographic videos. These two students have the

same class schedule and are on the same soccer team, but lately the other student

has been absent.

• Students widely talk and warn each other about a teacher who stares at students’

bodies; comments that they’re “filling out nicely;” touches them on their

stomachs; tickles their sides under their arm pits; pats them on their butts; or will

want to “chest bump” them. At times, the teachers has been known to “brush up”

against students’ chest areas with an open palm hand.



3. Any instance of sexual assault (defined

by Clery Act), dating violence, domestic

violence, or stalking (as defined by

VAWA).


Title IX: Reporting Obligations

• You, as part of your employee

obligations, MUST report any instances

of sexual harassment that you become

aware of or learn about in the course of

performing your employment duties.

• This applies to ANY employee with the

District.



• What does reporting mean?

– CONTACT the Title IX Office.

– At MPS, the Title IX Office is the Office of

Equality & Civil Rights.



• What information must you provide

when you contact E & CR?

– Your name and role

– ALL information you have about the

incident/concerns

– Names of the individuals involved



Things to keep in mind/Other Considerations:

• If you see suspected instances of physical injury and

neglect, contact the building health staff or call 911.

• You may have other obligations for criminal conduct or

mistreatment of a minor/vulnerable adult. Consult The

Department of Emergency Management and Safety &

Security procedures.

• Remember: The school’s investigation into the sexual

harassment complaint is a separate, yet parallel, to the

investigation conducted by law enforcement officials.

DOCUMENT EVERYTHING!


Prohibition on Related Retaliation

The District prohibits retaliation against individuals who make

a discrimination, harassment, violence, Title IX sexual

harassment, or bullying complaint or otherwise participates in

an investigation of a complaint (i.e. acting as a witness).

The District will promptly and effectively respond to

complaints of prohibited discrimination, harassment, violence,

bullying or retaliation, including by reviewing the complaint

and taking any appropriate immediate responsive action to

address the complaint and to help prevent future reoccurrence.


Section 2: After the Report

What happens after Equality & Civil Rights receives a report?

• Title IX Coordinator will reach out to the potential

complainant (and parents/guardians) to provide information

about and explain:

• Availability of supportive measures (with or without an

investigation)

• Available resources (including community resources)

• How to file a complaint

• The Title IX grievance process

• If formal complaint is filed and the complaint falls under

Title IX, then an investigation begins following the Title

IX grievance process


Who’s who on the Title IX Team?

• Title IX Coordinator

• Investigators (APs or site designees)

• Decision-maker (Principals your role maybe

here)

• Appellate Decision-makers


Section 3: Conducting the

Investigation

• General Principles for Investigations

• Key changes under the new regs for Title IX

investigations


Conducting the Investigation: Guiding

Principles

Remember, an investigation must be complete, thorough, and impartial. This means:

• You identified all the relevant facts

• You reviewed all the relevant witnesses and data involved in the case

• You remained impartial which means you were:

A) Independent (no conflicting relationships with the parties involved)

B) Objective (you were neutral in your fact finding and gave neither party

preference over the other)

C) Without bias (no presumptions and/or judgements regarding parties)

• If there is even the slightest risk that you or another investigator are not impartial,

you should contact the Director of The Office of Equality & Civil Rights (Title IX

Coordinator) and/or the General Counsel’s Office to have an independent

investigator assigned.

**Investigators will be consulting with the Title IX Coordinator at every juncture of

the investigation process.


Conducting the Investigation (cont.)

Who investigates Title IX Complaints?

• The AP or their designee, shall conduct the

investigation.

• If the complaint is substantially complex or a unique

situation, then the Title IX Coordinator, who is the

Director of The Office of Equality & Civil Rights,

shall conduct the investigation.


Conducting the Investigation

Generally, what should my investigation consist of?

• Fact-finding should consist of:

• In-person interviews with the complainant, the respondent, and

others who may have knowledge of the alleged circumstances

giving rise to the complaint (witnesses)

• Obtaining and reviewing other information (documents, videos,

photographs) that are relevant to the issue

• The investigator may use any other appropriate methods to

obtain information and determine facts


Section 4: The Interview


The Interview

Things to keep in mind:

• Interviews should be conducted in person and the Complainant and

Respondent should be interviewed SEPARATELY.

• The Complainant and the Respondent can have an advisor of their

choosing to guide them through the grievance process, including being

present at investigative interviews.

• Depending on the circumstances, advisors can be a support person,

union representative, or an attorney.

• Parents can be present for student meetings.

• Review and fill out advisor form with advisors and parties


The Interview: Preparation for all• Review the complaint information to understand the issues and the

grievance procedures and associated forms.

• Remember that, at the request of law enforcement, the District can delay

fact finding for up to 10 working days (specifically, this means, delay in

interviewing the Respondent). However, you will still need to interview the

Complainant.

• Schools will still need to take any steps to ensure the Complainant and

Respondent’s safety and implement, if any, supportive measures.

• Create a list of witnesses to interview. You should organize your list in the

manner you will be interviewing people, typically in this order:

A) The Complainant

B) Witnesses

C) The Respondent


The Interview: Preparation for all

Develop a general outline for the interview. It should include:

• an overview of your role,

• an overview of the investigation process,

• identification of the pertinent policies,

• and other important things to remember (see upcoming

content).

Develop interview questions beforehand (refer to template in

manual).

Be mindful about your demeanor during the interview:

• Always be professional, respectful, objective (impartial!),

attentive, and seek to build trust.


Interviewing the Complainant• The purpose of the interview is to obtain facts and information.

• You should not take sides – maintain your neutrality.

• Assess the needs of the complainant, including if there are any age, language,

or disability related considerations and/or accommodations.

• Where can I conduct the interview?:

• Anywhere that is comfortable, offers privacy, and non-intimidating. This

may include a different District building or site, your current District

building before or after school hours, etc.

• Consider providing water, tissues, dolls, and a pen and paper.

• Hotels and private residences are not appropriate places to conduct an

interview.


Interviewing the Complainant (cont.)

Documents and Forms to Review and Sign or Complete:

• Provide the Tennessen Advisory and obtain a signature from the Complainant. This

document must be given when the District asks an individual to provide private

information about themselves. It must include:

• The reasons for collecting the information

• How the information will be used

• Whether the individual is legally required to provide the information or if they

have a right to refuse to provide the requested information

• Any known consequences of providing the information or refusing to provide

the information

• Any other individuals or agencies that may have access to the information

provided

• If applicable, review and have participants complete the Advisor Form which outlines

the role and responsibilities of advisors.


Interviewing the Complainant (cont.)• Review the District’s prohibition on retaliation

• Explain that any concerns of related retaliation should be reported

immediately.

• Ask if Complainant has any questions about the investigation process.

Title IX Coordinator has already explained overall grievance process, but

it is a good practice to check in for any questions.

• Do not ask leading questions. Ask direct, open ended questions like

who, what, where, why, when and how. Let the Complainant tell you

their account of what happened.

• Be sure to inquire about any physical, emotional, or mental health

impact(s) of the complained about conduct as well as any other relevant

information you would like to obtain (e.g. photographs, videos, etc.).


Interviewing the Complainant (cont.)Some examples of questions to ask during the interview:

Complainant’s name, contact information, and status (student, employee,

etc.)

Where did the alleged incident take place?

Tell me what happened?

How would you describe your relationship with the Respondent?

past/present?

Was there anyone else present at the time or is there anyone else who might

have information about the situation/what happened?

How has this impacted you?

Have you talked about this with anyone else?

Has everything you have told me been honest, complete, and accurate?


Interviewing the Complainant (cont.)

Remember to:• Request the names and contact information for any

relevant witnesses.

• You can assure them that the investigation will be

conducted as discretely as possible, but do not make any

promises of confidentiality.

• Do not promise exactly when the fact finding will be

complete.

• Ask the Complainant to provide you with any additional

information they may remember following the interview

and be sure to thank them for coming forward.


Interviewing Witnesses• Assess the needs of the witness, including if there are any age, language, or disability related

considerations and/or accommodations.

• Check whether student would like to have parent present (or other appropriate person).

• Check whether employee witness would like a union representative present.

• Emphasize the District’s policy prohibiting retaliation against a witness. Inform the witness

that any form of retaliation should be reported immediately.

• Provide a Tennessen Advisory, review, and obtain a signature.

• Explain that they will not receive any further information from you (i.e. they will not know

the outcome of investigation).

• Remember to disclose as little as possible about the specific details of the complaint and the

investigation.

• When asking questions, try to start out as general as possible and become more specific as

needed. Obtain their account of the complained about incident or conduct.

• Remember to ask who, what, why, where, when, and how. Try to quote the witness as much

as possible during the interview to confirm their statements.


Interviewing Witnesses (cont.)Some sample questions to ask during the interview:

Do you about what happened on or at X date?

What did you hear/see/know about?

Do you know if anything happened previously that may have led to this

incident?

How would you describe your relationship with the

Complainant/Respondent? Past/present?

Are there any documents that might helpful for me to see? If so, please

provide them.


Interviewing Witnesses (cont.)

• Determine the source of the witness’ knowledge. Is it a first-hand

account or did they hear this information from someone else?

• Remember to ask the witness to keep the interview confidential and

explain why (e.g. preserve integrity of process, information accuracy,

and prevent concerns of related retaliation from arising).

• At the end of the interview, be sure to ask if there is any additional

information that they would like to provide or if there is any one they

can think of who might have pertinent information regarding the matter

• Thank them for participating in the interviewing and providing

information.


Interviewing the Respondent• The purpose of the interview is to obtain facts and information.

• Explain that you are impartial.

• Explain that the Respondent is presumed not responsible and that a

determination will not be reached until the conclusion of the grievance

process.

• Forms to review and sign (Tennessen and Advisory Form)

• Assess the needs of the Respondent, including if there are any age, language,

or disability related considerations and/or accommodations.

• Where can I conduct the interview?:

• Anywhere that is comfortable, private, and non-intimidating. This may

include a different District building or site, your current District building

before or after school hours, etc.

• Consider providing water, tissues, dolls, and a pen and paper.

• Hotels and private residences are not appropriate places to conduct an

interview.


Interviewing the Respondent (cont.)

• Explain the importance of full disclosure – this is their opportunity to provide

their side of the situation. Assure them that the interview will be conducted in

as discrete a manner as possible but do not make any promises of

confidentiality.

• Remember to ask open ended questions like who, what, where, why and when

to form an understanding of the factual basis of the complaint.

• Do not simply re-state the Complainant’s allegations

• Follow up with any general denial(s) – ask them to tell their side of the

story and explain the importance of why.

• Do not share the identities of witnesses that have been interviewed.



Some sample questions to ask during the interview:

• What can you tell me about the alleged

incident that took place on X date?

• What do you remember happening?

• Do you know if anything happened previously

that may have led to this incident?

• Do you remember what happened leading up

to the incident?

• What has been your previous and current

relationship to the Complainant?



Remember to:

• Ask for all relevant documents.

• Ask for the names and contact information of individuals who may

have relevant information.

• Ask for any additional relevant information the Respondent may wish

to provide.

• Explain the District’s policies prohibiting retaliation and warn against

it.

• Explain the importance of keeping the content of the interview

confidential.

• Thank them for participating in the interviewing and providing

information.


Miscellaneous

For Pre-K through 6th grade students:

• To create an atmosphere of comfort, familiarity, and

security, it may be necessary to have the classroom

teacher sit in during the interview, and to conduct the

interview in the classroom after hours.

• It may also be necessary to spend a small amount of

time asking the interviewee questions regarding

interests (such as sports, music, etc.) to build a sense of

rapport.

• Interviews should be short and to the point.

• Use language that is age appropriate.


Miscellaneous (cont.)

For students with disabilities

• Use discovery ED PLAN to determine whether the

student receives services or requires any

accommodations.

• Reach out to the appropriate staff members and consult

with them. For example: If the student is hearing

impaired, talk about getting a signer or if English is the

student’s second language, discuss whether it would be

helpful to have an interpreter available. You can also

consult with a social worker.


Miscellaneous (cont.)

For all interviews remember:

• Conducting an interview is an interactive process

that requires careful listening and thoughtful

questioning; rarely will a simple written statement

suffice.

• Do not make any promises.

• Always be observant and attentive of the

interviewee.

• Document the interviews (take notes)


Section 5:

Post evidence gathering


Preliminary Investigation Report Draft

Once all the evidence is gathered, the investigator determines relevant evidence

and writes a draft preliminary investigation report. This report should include:

• The names and contact information of the Complainant, Respondent, and

all individuals interviewed (witnesses).

• A statement of the specific allegations that were investigated.

• A summary of each individual’s (Complainant, Respondent, Witnesses)

account.

• Relevant evidence and/or other items submitted to the investigator for

review and consideration.


First 10 Day Review Window

The investigator will consult with the Title IX Coordinator on the preliminary

report draft. The investigator will then provide a secured/redacted draft report

with the parties/advisors. A due date (10 days after providing draft report) will be

set and parties/advisors notified of the date. During the review window:

• Parties/advisors will review and comment on the report, making/submitting

written responses to the investigator.

• These responses will NOT be shared with the parties.

• Written responses should only include (instructions will be provided to the

parties/advisors via letter – see template in manual):

• Review and commentary on the report

• Names of additional witnesses and questions that should be posed to them

• Additional questions for the investigator to ask of another party or witness

• Additional evidence

• Request to exclude certain evidence

• Other relevant questions/evidentiary issues


First 10 Day Review Window

The investigator (in consultation with the Title IX Coordinator) will then complete

the following:

• Incorporates parties’ written responses as appropriate into the draft preliminary

investigation report

• Considers relevance of evidence at their discretion based on party feedback

• Conducts any additional investigation or questioning needed

• Updates report accordingly and finalizes it

• Investigator shares report with the Title IX Coordinator for review/comment

and incorporates the feedback


Second 10 Day Review Window

The investigator (in consultation with the Title IX Coordinator) completes the final

investigation report. A secured/redacted final report with any appendices is sent to

parties/advisors for a second 10 day review window (set due date and provide date

to parties/advisors) (instructions will be provided to parties/advisor via letter, see

manual):

• Written responses from parties/advisors may include the information from

previous slides.

• The written responses will NOT be shared with the parties/advisors.

• Investigator may revise report based on responses from parties/advisors and/or

shares parties’ review and comments with the decision maker, Resolution &

Compliance Specialist with the Office of Equality & Civil Rights.

• Investigator shares final investigation report with decision maker.


Investigation Final Report

Investigator shares investigation final report with the decision maker. The final

report should include:

• A fair and accurate summary of the facts

• Only include relevant evidence

• Assessment of credibility for parties and witnesses


Credibility Assessment: Things to Consider The investigator will have to make credibility assessments of the parties and witnesses.

In doing so you should be mindful of:

• What are the individual’s expressions and reactions?

• What might the individual’s motivations be?

• Note any refusals to answer questions or provide information.

• How does their account align (or not) with other information, like (other) witness

information?

• Has their account being consistent throughout?

• Have they provided detailed information/specifics?

• The consistency and quality of the corroborating data.

• The relationship between parties and the context in which the incident occurred.

• The Respondent’s history of behavior.

• The Complainant’s history of behavior (NOT related to past sexual history).


Generally, what happens next?After the investigator shares the final report with Resolution & Compliance Specialist

with the Office of Equality & Civil Rights (decision maker on responsibility):

• The Resolution & Compliance Specialist will facilitate a written “cross-examination”

period between the parties.

• The Resolution & Compliance Specialist will prepare a written determination as to

whether the Respondent violated MPS policy.

• The Resolution & Compliance Specialist will consult (including sharing appropriate

information from investigation and written cross examination) with the appropriate

unit/person, i.e. Principal or other designee, regarding discipline, remedies, or other

sanctions in instances where a Respondent is found to be responsible.

• Principal or other designee will make decision as to discipline, remedies, or other

sanctions in instances where Respondent is found to be responsible.

• Resolution & Compliance Specialist will incorporate into final written determination.

• Appeal period may commence


And Remember:If you wish to find out more about MPS’ policies, the new Title IX

grievance procedures, or would like further outlines concerning

interview scripts, your investigation checklist, or an outline for

your fact finding report, consult MPS Updated Manual of

Procedures for Investigating Complaints of Discrimination,

Harassment, Violence, Bullying or Retaliation, or ask for assistance

from the proper staff


Questions?

Gracias

Miigwech

MahadSanid

شكرا ً

Ua Tsaug

Thank you