6. Grievance Process
The New Rule identified specific requirements that must be included in the sexual harassment grievance process. Some of these changes are:
- Process must be fair, equitable, without bias or conflict of interest, not reliant upon stereotypes
- Advisors for the parties are permitted, and in some instances, must be provided to the parties
- Separate decision-makers must be involved in the process – i.e., investigator separate from the ultimate decision-maker (policy violation decision)
- Either a preponderance of the evidence or clear and convincing standard can be used to make determinations
- The burden is on the school to gather evidence to support a finding
- Process cannot violate any constitutional protections of any party – First, Fifth and Fourteenth Amendments
- All information gathered in the investigation process must be shared with both parties before a decision is issued
- Appeal allowed for both parties
7. Hearing Panel
The New Rule permits but does not require K-12 schools to hold a hearing to adjudicate the matter after the initial investigation is completed. A hearing would allow for cross-examination of parties and witnesses by the advisor to a party. If one party has an advisor and the other does not, then the school must provide a trained advisor for the other party for its hearing. The hearing could be run by an officer or a panel. Specific training is required for all panelists/officers.
In the absence of a live hearing, the parties will be permitted to submit questions that will be asked of other parties and witnesses by the decision-maker before a final decision is issued. Because of the substantial burden of instituting a hearing process, it is unlikely that most K-12 schools will voluntarily adopt this model.
8. Informal Resolution
Informal resolution is permitted after the filing of a formal complaint, review of the informal process by the parties, and agreement to participate in the informal process. Either party can leave the informal process and return to the formal process at their election before a final decision is made. In light of the new procedural requirements, schools are expected to develop informal resolution processes to provide a viable option for participants to resolve the matter without going through a time-consuming process.
9. Appeal
The Final Rules indicate that both parties should have an appeal process available after the dismissal of a formal complaint or a finding of a policy violation. This appeal process must include the following basis:
- Procedural irregularity that affected the outcome of the matter
- Newly discovered evidence that could affect the outcome
- Title IX personnel had a conflict of interest or bias that affected the outcome
Schools are permitted to include other bases for appeal beyond those outlined above.
10. Timelines
The New Rules abandon the 60-day investigation completion guideline and advises schools to complete investigations within a reasonable period of time. This open-ended guidance may allow schools to unnecessarily delay investigations in the future.
As the information above indicates, the changes for K-12 school districts are significant. Districts need to assess the changes that must be made and move quickly with the impending implementation date. While many Title IX advocates do not feel that these new regulations do enough to protect victims, they do have the force and effect of law. The implementation date of 8/14/20 means that these changes need to be in place, and staff will need to be trained before the next school year.
Resources from the U.S. Department of Education
- New Regulations
- Summary of Major Provisions of New Regulations
- Title IX Summary
- DeVos K-12 Initiative
Megan Farrell is the Title IX Coordinator and Civil Rights Officer for Palo Alto Unified School District She also consults with K12, colleges, and universities on Title IX. You can reach her at [email protected] or [email protected].
This blog originally appeared on Stop Sexual Assault in Schools.
