Unfortunately, the following scenario may sound familiar to you. Jenny enrolls in the 8-week Adult Education STNA program at Happytown Career Technology Center after graduating from Pleasantville High School last year. She is nervous but excited about the opportunity to obtain the certification. Her nerves are amplified the first day of class when she arrives and she is the youngest person in the room. The instructor, Bob, is a thirty-year-old instructor who was hired by the CTC to teach the course. This is his first time teaching a course at the CTC, and given that he is relatively close in age to the students, he hopes he can develop a rapport with the students so he can teach other classes at the CTC in the future.
The other students notice that Bob has been giving Jenny rides home and is giving extra time and attention to Jenny. Rumors start circulating that Bob and Jenny are involved in a romantic relationship. Two CTC students who also graduated from Pleasantville mentioned their concerns to the CTC principal when they ran into him over the weekend at a football game.
Now what?
As a Career Tech Center, Happytown has several legal duties that are triggered under Title IX. In addition to conducting initial intake and an investigation, under the new Title IX regulations, “post-secondary institutions” who receive federal funds must provide live cross-examination hearings before any determination and discipline can be issued against a respondent for sexual harassment allegations under Title IX.
The Live Hearing Requirement
The term “post-secondary institution” may, at first blush, seem to apply only to colleges and universities, but the federal Title IX definition of a post-secondary institution is broader: “an institution of graduate higher education as defined in section 106.2(I), and institutions of undergraduate higher education as defined in 106.2(m), an institution of professional education as defined in section 106.2(n) or an institution of vocational education as defined in section 106.2(o).” 34 C.F.R. § 106.30(b) (emphasis added). Vocational education defined in 34 CFR § 106.2(o) “means a school or institution (except an institution of professional or graduate or undergraduate higher education) which has as its primary purpose preparation of students to pursue a technical, skilled or semi-skilled occupation or trade, or to pursue study in a technical field, whether or not the school or institution offers certificates, diplomas, or degrees and whether or not it offers fulltime study.” (Emphasis added).
Thus, whether your vocational institution is subject to the live hearing requirement will need to be evaluated on a case-by-case basis. For example, it is possible that the live hearing requirement exists in some cases, while not in others, depending on the structure of your institution, how your policy is drafted, and the facts of a particular case. Therefore, we would encourage you to consult with your legal counsel to analyze this important issue.
Training Requirements
In addition, the new Title IX regulations require training of your Title IX team members. Specifically, decision-makers must be trained on the following:
Jurisdiction: understanding “the scope of the recipient’s education program or activity”
Definitions of “sexual harassment” under the new Title IX regulations
How to conduct a live cross-examining hearing
How to serve impartially, including by avoiding prejudgment of the facts at issue, bias and conflicts of interest
Avoiding stereotypes
Training on any technology to be used at a live hearing
The grievance process for the decision-maker’s institution
Relevancy determinations
knowing and applying remaining requirements and other specific exclusions from the Regulations
Rape shield law and its two narrow exceptions
legally privileged information absent voluntary written waiver of party holding privilege
How to objectively evaluate all relevant evidence, including inculpatory and exculpatory and make decisions on relevancy
That a decision-maker cannot draw inferences about failure to appear or answer questions in live cross-examination hearing
How to determine weight, persuasiveness, and/or credibility in an objective evaluation
34 C.F.R. § 106.45(b)(1)(iii).
Also, note that if your institution is subject to the Clery Act,[1] your decision-maker must receive annual training on:
Issues related to sexual assault, domestic violence, dating violence, stalking; and
How to conduct an investigation and hearing process that protects the safety of victims and promotes accountability.
34 C.F.R. § 668.46(k)(2)(ii). Failing to complete annual training may result in fines. If you are not sure whether your institution is subject to the Clery Act, reach out to your financial aid department because the Clery Act is tied to Title IV federal funding. If your institution submits an annual security report, then it is subject to the Clery Act requirements.
For more helpful tips and social media updates from the Bricker Education Law Group, follow us on Twitter @BrickerEdLaw. The Bricker Title IX Toolkit with flowcharts of the entire TIX process and customizable templates is available for purchase at https://k12tixtoolkit.bricker.com/.
This legal update, prepared by the Education Law attorneys of Bricker & Eckler, is intended to provide general information and is not to be considered legal advice for any specific problem or issue. If specific legal advice is sought, please consult with an attorney.[2]
[1] Congress enacted the Crime Awareness and Campus Security Act of 1990 (Title II of Public Law 101-542), which amended the Higher Education Act of 1965 (HEA). The act has been amended several times and the 1998 amendments renamed the law the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act. It is generally referred to as the Clery Act and is in Section 485(f) of the Higher Education Act.
[2] At the time of writing this article, the U.S. Department of Education announced that while the current regulations remain in effect, there will be new guidance forthcoming, as well as a public hearing and that the U.S. Department of education anticipates publishing a Notice of Proposed Rulemaking to change the regulations. Therefore, any guidance contained here is current as of the date of publishing, but is subject to change. https://www2.ed.gov/about/offices/list/ocr/correspondence/stakeholders/20210406-titleix-eo-14021.pdf
By Kate Davis, Senior Attorney, Bricker & Eckler Attorneys At Law
Kate Davis frequently partners with K-12 and higher education institutions on civil rights and Title IX issues. Kate has conducted independent investigations for public entities and assists clients with Title IX policy revision and training. She has trained dozens of educational institutions on the new Title IX regulations. Kate also served as an assistant general counsel at a large public university. In this role, she represented and provided direct legal advice to a variety of university departments, including the President, Provost, and the Office of Equal Opportunity. She provided guidance and training on public records and Open Meetings Act issues and student privacy issues, including the Family Educational Rights and Privacy Act (FERPA). She also represented the university during investigations by the Office of Civil Rights, and participated in employment-related litigation.
Education: The Ohio State University (J.D.), 2003, Order of the Coif; Staff member, Ohio State Law Journal Miami University (B.A., magna cum laude, political science), 2000, Phi Beta Kappa