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Understanding that may be a reasonable cause for delay in the Title IX investigation, but it doesn't mean you don't have to investigate ensuring that the parties have supported measures in a safe environment pending those investigations.

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The investigation file, and this is all that's going to be handed up to the decision maker to make the decision. You want to number one, have the policies that you considered. Number two, any interview notes, a log of those interviews, a log of, you know, the evidence.

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record of efforts to set up the document artifacts collected with a log copy of any notices.

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In essence, you know, I hate to say it and it's really hard and this is something you

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can work with your Title IX investigator to help be collecting to make sure you've got

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it all there.

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But in essence, you're putting together, you know, the pleading folder for court by putting

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all of these documents together, but you are creating the record, which shows number one,

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and how you got to the ultimate indecision,

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but the number two that you followed the process

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and this is gonna protect the school.

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So you've done your interviews,

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you've collected your evidence, you've logged it,

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now you're to the point where the parties

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and their advisors get an opportunity to inspect

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and review the evidence.

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So you send them either a secured electronic

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our heart copy is sent to the parties.

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This is when I encourage a non-disclosure agreement

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that says, hey, you're gonna get lots of evidence

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about things.

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I know you can talk about the allegations,

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but you can't post or exchange or disclose this evidence.

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Kelly, I hadn't really thought about this before,

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but suppose you interview the complainant,

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you've got notes and everything from that interview and the respondent says,

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hey, I have a right to review that evidence and I want to see it before you interview me.

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I would think it would be okay to say, I'm going to give both parties an opportunity to review

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evidence, but not until I have completed more interviews and obviously prior to initiating my

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investigation report, but I'm not going to share this interview note with you before I talked to you

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or prior to gathering more information.

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What do you think about that?

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I've had to actually do that.

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Yes, that's my approach as well,

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is that, you know,

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because to see one piece of evidence out of context,

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start, I just don't think it's helpful to the process at all,

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and I don't think it's required by the process

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at all until all the evidence is gathered.

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I would agree.

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So you get to the end of the process,

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you've gathered the evidence,

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you exchange the evidence with the parties,

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Then the parties have 10 days and I think we've written up policy 10 school days to submit

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a written response and maybe that response is, you know, you didn't, you know, include

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this or, you know, you should have, you know, talked to this person.

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Then, you know, if the investigator gets those responses back and if he thinks he missed

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a step or something he needs to go or she needs to go do it and they go do it, then they

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draft the investigative report.

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The investigative report is kind of always think about the mindset

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with the investigative report is that, you know, this is you want to enable your decision

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maker to make a decision based on facts. And these are the facts that, you know, that you

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are presenting to them in a way that enables them to make a good solid decision, understanding

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that your investigative report and the decision are going to be exhibit one in front of a court

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potentially at some point.

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So, the investigation report includes the timeline of the steps.

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You lay out the allegations. There's a summary of witness interviews. You refer to the policies.

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You know, you can provide a summary of the records.

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And then I include and encourage including, you know,

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as a appendices to the report, if you have transcripts

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of the interviews.

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If you have, you know, the policies that you looked at,

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if you have the data that you collected or the artifacts,

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the documents, anything else is an appendix to your investigative report,

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but you've laid it out in the report itself.

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And then talk about any times where, you know,

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you try to get information or interview witness

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and they were, you know, not responsive or refused.

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I do have, you know, a template for this.

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I don't know that we have the time today to go into that,

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but it, you know, kind of lays out, you know,

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all of these, you know, this checklist within the template.

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The goals, your job is not to reach conclusions,

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is to let the parties know.

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And you got to let them know that in the investigative report.

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Here is my objective evaluation or, you know, objective gathering of, you know, relevant

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evidence.

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I am not reaching any sort of responsibility, determination of responsibility.

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And like I said, what your goal is to put the decision makers in the best position to

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understand relevant evidence.

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And, you know, again, you want to demonstrate to the parties and potentially court that you

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You took these allegations seriously and responded appropriately and that this may be

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Exhibit one to multiple and OCR proceeding or a court proceeding.

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So you've done your investigative report and again, talk with your Title IX coordinator.

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You might want to run it by your Title IX coordinator.

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I know it's an attorney.

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I've looked at some of these to make sure we've hit all of the things that are required to

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be in the investigative report.

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and then you get it to the parties.

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The parties then have 10 days to respond to that investigative report.

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But at the point, when you send the investigative report to the parties,

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your job's done.

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It's the decision maker, then picks up the baton and takes it from there.

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I think that's...

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That was fast.

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I'm glad to go back.

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You guys have any questions for Kelly?

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Let's do that.

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All right.

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It does not appear that we do.

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Well,

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we didn't mean to scare you off of questions.

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We just wanted to make sure we got through all this.

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So if you do have questions about any part of this,

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hopefully we might have some time at the very end

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that we can do that.

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We do have one quick one now if there's a time.

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Sure.

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Do we need a written statement of some type from the party?

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We turn the evidence over to that acknowledges

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how many pages or the nature of documents submitted

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So that they can't later claim that they didn't get something that we know we turned over.

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Kelly, you're on the menu.

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I hadn't thought about that. It might not hurt.

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And I do a cover letter that says attached is the investigative report consisting of ex number of pages.

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I don't think that that hurts the document. How many pages you, you know, you sent them.

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But I don't know if you want to go through the process of actually getting them to acknowledge that.

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Yeah,

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certainly you could say the report consists of X pages and the following supporting documents and could be witness notes from the following well.

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That would be the investigation report. You may do the same thing when you share the evidence with the person who says I want to see all the evidence.

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If you're going to share that, you may do the same things and you know attached our following documents, something to that effect would be good.

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Okay, so decision makers, you know, really the decision makers role you would think would be, well, it's going to be a lot less involved than the Title IX coordinator.

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It's going to be less time consuming the investigator.

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and it probably is. But there are significant steps the decision-maker has to go

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through and has to comply with and understand and some are fairly legal and an

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understanding of the legal requirement and burdens of proof and standards of

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evidence.

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So appointment you know the Title IX coordinator would could a point is

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not mandated to appoint the decision-maker. I think that's appropriate because you've got to make

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sure you find an unbiased and partial decision-maker. You know, that could be worked out well in advance

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and quite frankly, I know most districts I work with are already talking about who they want to be

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a decision-maker or investigator or Title IX coordinator. And so they've had input through the

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superintendent and others with the Title IX Coordinator about who that ought to be.

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However, you may rethink that after we get through with this today as to who the decision

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maker should be.

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And again, it cannot be the Title IX Coordinator or the investigator.

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Unbiased impartial not have a conflict of interest.

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And in order to make that decision, you have to be, as a decision maker, you should be

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provided by the Title IX Coordinator or it will be included in the investigation materials

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as to who the witnesses are and the parties and their advisors and it is there a conflict

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of interest on your part.

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That has to be decided.

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It can be discussed with the Title IX Coordinator but you need to make sure you're not subject

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to bias.

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I don't mean to interrupt but I think folks are having a hard time seeing your whole screen

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for some reason it's cutting off parts I've got a green box here as well let me

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see there's any ideas let's

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see if there is a way to go back any

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ideas Brian

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or Julie? Good things is one that Julie could certainly do it share the PowerPoint if you just want to email that to her.

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You might check your view, the size that you're viewing the document.

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Okay, so on PowerPoint, the view tab along the top, and then the zoom, and you might switch the zoom to 100%.

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Let me go back into the share screen.

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Click to the next one. There you go.

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Okay, good. Sorry about that.

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Okay, so we talked about the unbiased impartial. I will give you a heads-off just a quick little

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lesson learned for a decision-makers out there.

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You look at the people involved and the

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issues need to decide, you know, I don't know these people from Adam, I don't have any bias

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or conflict and from personal experience in one situation I can tell you as a

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decision-maker after reaching a decision there was an allegation of bias on my

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part which I was surprised by but it was because I had worked with districts on

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prior occasions in dealing with teacher disciplinary matters and that was a

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basis of an appeal, and it went to the appeal decision maker along with other issues.

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What I decided to do, if I am in that role again, is as a part of the decision, I'm going

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to discuss my bias or hopefully lack thereof, and that's what it has to be.

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In other words, in this case, I don't know any of the parties.

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I don't know any of the witnesses.

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I have worked with any of these individuals on any matters.

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I have worked in my case with districts in disciplining students, in disciplining staff,

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in defending staff against parental claims on all sides of these issues.

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So, personally, I don't feel like I'm biased.

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But without doing that in the decision, when that appeal goes to the decision maker,

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The appeal decision maker has no information with which to respond to the allegation of bias or prejudice.

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So that's just kind of a practical tip that I give you based on my own experience of the decision maker on this issue.

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So you have to objectively be able to review the evidence, summarize the investigation report, keep in mind, and this is the problem.

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You don't get to do the investigation, you don't get to do any more investigation.

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You get information from the investigator and you think, geez, I wish you'd asked this

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question, or maybe we should talk to this person, that's not possible.

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That's why the role of the investigator is so important because whatever you give to

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the decision maker, that's what the decision has to be based upon.

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And if you didn't ask the question as to the impact upon that alleged victim and what...

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There are not it impacts their ability to have an access to an equal educational environment. That's a critical element. And if there's no information about it, there's no sexual harassment, because it can't be presumed if there's nothing in the record to support it. So objectively evaluate the evidence you can only evaluate what you were given. Again, no prejudgment or and no deference to any recommend

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recommendations or editorial comments of the investigator. So as Kelly included in her training

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it's not the role of the investigator to reach conclusions or make recommendations.

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But if it's there, you know, based on my investigation, I concluded that this individual

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was significantly impacted and doesn't want to attend class. Uh-uh. That's not part of

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the facts that the decision maker gets to decide. Decision maker may reach that same

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conclusion, but no difference should be given to the recommendations or editorial comments

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of the investigator.

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As Kelly mentioned, the decision-maker cannot reach a decision until the individuals have

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received the investigation report and had ten days to review it in some manner written response

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for consideration by the decision-maker.

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The decision maker is now mandated under the regulations to give each party an opportunity

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to pose written questions to the other parties and witnesses which will be responded to within

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a reasonable time frame. What I did as a decision maker is I notified the people, the parties,

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the complainant respondent that you've received the investigation report, you have 10 days to respond

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to that investigation report, and you will have 10 days from now to pose any questions you want to

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pose to the other party or to the witness. And then on receipt of those questions, if you get any,

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you have to decide are those questions relevant and if they're not relevant they won't be submitted to the party or the witness to be answered.

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In which case you have to explain why it's not relevant to the person asking the question.

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You have to allow the parties to see the responses to the questions and then you may set out a period whereby the witnesses can submit a response or follow up questions.

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The respondent wants certain questions asked of the complainant.

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You give them time to ask the questions.

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You give the questions to the complainant in that example.

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They have to have a reasonable time to respond, which may be five to ten days.

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After they respond, you've got to provide the response back to the respondent.

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They may submit a follow-up question or they may have a response.

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Well, now that she answered the question that this occurred at such and such time,

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I have proved from a video or text that I wasn't even there at that time.

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Unfortunately with that, that creates new evidence that's not part of the

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investigation report. And the regulations don't really explain how you deal with that.

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But it's information that comes in. And when you get that information,

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you have to share it with the other part, which is why these investigations sometimes are not

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going to be wrapped up in 30 days. 60 days could be pushing it if you have multiple questions and

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responses and follow-ups. But this process is in lieu of having a hearing where the compliant

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and respondents are put under cross-examination and inquiries by attorneys, which is the process

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colleges are subjected to. So thankfully, at least in the K-12 process, we don't have to go

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through that hearing and cross-examination, et cetera, that higher ed does. But this question

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to answer thing is something the decision-maker does have to facilitate and certainly can consider

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are those responses?

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Trace, someone in the Q&A asked that a Texas says that they can request the investigator

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to go back and ask additional questions.

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I don't know that.

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I don't dispute that.

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I just don't know that, you know, I just don't know the answer and maybe, you know, I need

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to look into that and get back, but unless you-

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Yeah.

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I have to say I had not heard of that either.

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It's I don't recall anything in the regulations about that it may be an interpretation someone

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that's given hopefully

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you avoid that by allowing the individual themselves to pose the question.

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And if they do that, I don't know why the investigator would have to do that.

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I'm also not aware of anything in the regulations that says that can't happen.

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So, you know, no decisions until you've received and reviewed all the evidence, at least

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it's relevant. Make a sound, reason, decision, and determine the facts based only on the

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evidence presented.

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Again, the impartiality is crucial.

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You're not swayed by prejudice or

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sympathy and nor what's the impact of this decision going to have. Jesus could ruin this guy's career.

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Wow, this could take the student as a sexual harasser or, you know, a perpetrator of sexual assault.

242
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You know, that does not factor into the decision. The decision simply is, does the evidence prove by

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preponderance of the evidence that every fact constitutes sexual harassment occurred and if so,

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it's substantiated and you determine responsibility for it and not what the impact of that's going

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to be.

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Weight of the evidence is something I also want to cover because I think there's a tendency

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see particularly by untrained investigators to say, you know, Joe and his friend both have told

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me that Joe didn't make this comment to Sally. Sally says it did, but they have two people that

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said it didn't. Sally only has one, therefore it didn't happen. The quality of the evidence is not

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determined by the volume of evidence or the number of witnesses or exhibits. It's the way

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of the evidence or a strength intending to prove the issue? Did Sally have a motive for

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making say in this? Was there something that Joe said that really didn't make sense? And

253
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quite frankly, it's not consistent with evidence or even common sense that would cause you to

254
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believe the credibility of Joe and his friend are really not as credible as Sally. That may be

255
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But you don't judge it simply on we're going to count the number of witnesses that say it did happen and count the number of witnesses that say it didn't happen and that's what decides us. That's not the way this works.

256
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You have to look at credibility of the witness how important do you think the testimony actually is or the facts presented are.

257
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Consider a reasonableness of the testimony, the probability, is there a motive?

258
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And you may know a person and believe them to be completely honest, but that doesn't

259
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mean they might not be mistaken or confused about what they saw or heard and then document

260
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the basis for the findings, that's going to be part of the decision. We talked about not

261
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considering the impact.

262
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So you look at all the evidence in total and making your decision.

263
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So as a decision maker, you have to understand and apply preponderance of the evidence. Because

264
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the burden of proof is not on the complainant. It's not on the respondent said. It's on the district

265
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that's investigating it, to substantiate that there was sexual harassment.

266
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And if you, as the district, through the investigator, can't prove by a proponderance of the evidence,

267
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every element of the allegation that creates or that defines sexual harassment, then you don't have sexual harassment.

268
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Now, preponderance of the evidence standard is unlike law enforcement standard, which is

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why you do conduct your own investigation, along with the fact that you're mandated by

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the regulations.

271
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They have to prove someone was guilty beyond a reasonable doubt.

272
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That's a much higher and different burden than proving by preponderance of the evidence,

273
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which is simply, I think it's more likely than not that this happened.

274
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It's greater than a 50% chance that the allegations are true.

275
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So there must be evidence to show by proponents of the evidence each allegation.

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So go into what the definition of sexual harassment is.

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Every element that it takes to prove sexual harassment.

278
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Then sort the evidence according to the element.

279
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This isn't a regulation but it is very effective.

280
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and I think it's a very good way for a decision-maker to decide if sexual

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harassment occurred. No, did it occur during a school activity? Is it unwelcome

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conduct under a reasonable person standard? Is it objectively unreasonable or

283
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offensive? Did it create a situation where this individual no longer has equal

284
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access to the education program? Those are all elements. And what evidence do we

285
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have that would prove by a preponderance of the evidence that that element has been proven.

286
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And then you do that with every allegation. The teacher said this to me during art class

287
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on such and such a date. The teacher said this to me during art class. It's a different class

288
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on a different day. Those are different incidents. The teacher did this in class. Those,

289
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Those, whatever the allegations are, and for every separate incident listed in the formal

290
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complaint, you go through this process,

291
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kind

292
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of mentioned this, and this is the one that

293
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I find investigations are weak on, is following up as to whether it was objectively offensive,

294
00:27:03,960 --> 00:27:08,360
excuse me, and denied the person equal access to the education program.

295
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that investigators, you've got to help the decision maker out, you've got to have questions, answers, and evidence on all of this.

296
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If there's going to be a substantiated claim of sexual harassment, or as long as you've investigated it and there is no evidence, that's great too.

297
00:27:29,780 --> 00:27:34,360
So it helps the decision maker understand that there may not be sexual harassment.

298
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So the decision then, when it's risked, sorry to interrupt, you can ask one question

299
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and go back to that.

300
00:27:43,660 --> 00:27:47,360
So if you go allegation by allegation or element by element, right?

301
00:27:48,700 --> 00:27:53,460
One statement in class may not be severe, pervasive, and objectively offensive, right?

302
00:27:53,660 --> 00:27:54,740
I mean, it could be.

303
00:27:55,240 --> 00:27:55,440
Right.

304
00:27:56,040 --> 00:28:00,920
Sometimes do you take those if there are 17 allegations of that and that creates that that

305
00:28:00,920 --> 00:28:02,200
That means that this element.

306
00:28:03,540 --> 00:28:04,400
Yeah, I would agree.

307
00:28:04,580 --> 00:28:05,180
That's a good point.

308
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I think you look at the evidence that each one of those separate ones happened.

309
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Right.

310
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Once they happened, I think you could say, look, yeah, based upon the

311
00:28:17,460 --> 00:28:20,640
preponderance of the evidence, at some point it became offensive.

312
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The first one, maybe you thought was funny.

313
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The second one was kind of rude.

314
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But at some point it became offensive to any reasonable person.

315
00:28:29,820 --> 00:28:32,680
That very good point and it could happen.

316
00:28:36,930 --> 00:28:44,970
So the decision and the decision maker's requirement to render a decision is going to involve

317
00:28:44,970 --> 00:28:46,390
multiple steps.

318
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So one is identify the allegations that constitute sexual harassment.

319
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The complaint form, depending on how verbose the complaint it is, may ramble on about a

320
00:29:01,810 --> 00:29:07,830
lot of things, but it's only the actual allegations of sexual harassment that you're identifying.

321
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A description of the procedural steps taken.

322
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This is why it's important for the investigator in the investigation file to summarize to create

323
00:29:18,590 --> 00:29:25,610
that log of steps taken, because that needs to be shared with the decision-maker so they

324
00:29:25,610 --> 00:29:29,630
can describe in the decision the procedural steps that were taken.

325
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No notice of this was received on such and such a date if you have that information complaint was filed and such and such a date notice of the complaint was delivered to the complainant and responded on such and such a date.

326
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You know the following people were interviewed.

327
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I think it's important to confirm that the documentary evidence was offered to be shared if they either party wants to see it that it was shit.

328
00:30:00,000 --> 00:30:28,440
If they provide a response to it, I wouldn't say I received it. I would say it was received and considered. Because I know at least in one of the investigations I dealt with, one of the contentions of the attorney advisor representing the respondent was, hey, we responded and said this. And when the investigation report didn't agree with what they said in the response.

329
00:30:28,440 --> 00:30:35,540
the allegation was procedural error because it wasn't considered so maybe at

330
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least as a investigator when you get that say it was received and considered by

331
00:30:41,960 --> 00:30:45,720
the investigator doesn't mean you have to agree with that or you have to

332
00:30:45,720 --> 00:30:54,280
directly respond to their accusations or respondents. A statement rash now for

333
00:30:54,280 --> 00:31:02,160
the result as to each allegation. So you're going to decide does it constitute sexual harassment?

334
00:31:03,280 --> 00:31:11,040
Is the respondent responsible for it? In other words, was it, if there's it's substantiated,

335
00:31:11,340 --> 00:31:19,240
are they responsible for that conduct? This is one that Kelly and I have debated and redebated,

336
00:31:19,240 --> 00:31:27,320
but the regulations mandate the decision include disciplinary sanctions if they're if the conduct is

337
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substantiated. The problem you've got unless the superintendent is the decision maker

338
00:31:37,610 --> 00:31:45,250
and I'm not advocating that that should be the case but what I would say is if it's substantiated

339
00:31:45,250 --> 00:31:52,290
and you, as a decision maker, may think that Jesus could result in expulsion of this student.

340
00:31:53,450 --> 00:31:59,710
Well, you likely don't have the lawful authority to impose expulsion because under Wyoming law,

341
00:32:00,110 --> 00:32:06,250
that's based on the recommendation of the principal and or superintendent or if it's dismissal

342
00:32:06,930 --> 00:32:09,310
from the superintendent or a board member.

343
00:32:09,610 --> 00:32:14,130
The decision maker likely can't impose that sanction.

344
00:32:14,130 --> 00:32:21,830
And that creates a difficult situation I think for decision makers and potentially a conflict

345
00:32:21,830 --> 00:32:24,810
between federal regulations and state law.

346
00:32:25,530 --> 00:32:31,550
The feds think their law trumps state law and generally they're right, but I think

347
00:32:31,550 --> 00:32:38,290
you would instantly find yourself in litigation if a decision maker says I'm going to dismiss

348
00:32:38,290 --> 00:32:42,110
this teacher and you don't go through the statutory due process requirements.

349
00:32:42,950 --> 00:32:58,150
So, um, I think it's appropriate once you've reached your decision and determined things are substantiated to share that with the Title IX coordinator and say, look, I haven't, you know, I haven't shared the decision.

350
00:32:58,190 --> 00:33:02,690
I haven't reached the final one, but I'm finding that it was substantiated.

351
00:33:02,690 --> 00:33:11,690
I'm not sure where we're going with sanctions and when I did I ultimately said I think I found some some some of the allegations

352
00:33:11,690 --> 00:33:19,850
substantiated determined that sanctions were appropriate and recommended that sanctions be imposed that may include

353
00:33:19,850 --> 00:33:30,910
something between a reprimand and dismissal so that the appropriate people in the school the superintendent could after

354
00:33:30,910 --> 00:33:37,450
looking at the decision to decide what to do. And as Kelly pointed out, the decision maker

355
00:33:37,450 --> 00:33:43,790
may say, even, you know, I think a reprimand is appropriate. Well, the superintendent may

356
00:33:43,790 --> 00:33:50,470
have information that, geez, this person is engaged in this conduct, three previous times.

357
00:33:51,490 --> 00:33:57,130
Well, that doesn't factor into this decision, but it may factor into ultimate sanctions,

358
00:33:57,130 --> 00:34:00,790
which may be different than recommended by the decision maker.

359
00:34:01,870 --> 00:34:04,990
So it's an awkward position to be in.

360
00:34:05,630 --> 00:34:10,290
You don't want to cut the feed out from underneath the administrator.

361
00:34:11,430 --> 00:34:16,970
But you are going to address sanctions somehow in the decision.

362
00:34:17,770 --> 00:34:22,790
And it likely could be, I do believe sanctions are necessary and appropriate

363
00:34:22,790 --> 00:34:30,170
it and this individual, whether it's a student or employee, should be disciplined, and you

364
00:34:30,770 --> 00:34:37,490
could recommend a sanction, or you could recommend a range of sanctions.

365
00:34:38,270 --> 00:34:43,010
But it's okay for the decision-maker to discuss that with the Title IX Coordinator.

366
00:34:43,650 --> 00:34:50,850
I'm not opposed to the Title IX Coordinator maybe talking with the superintendent about

367
00:34:50,850 --> 00:34:56,730
potential sanctions but keep in mind neither the Title IX Coordinator nor the

368
00:34:56,730 --> 00:35:02,390
superintendent get to offer any input into whether or not the allegation is

369
00:35:02,390 --> 00:35:06,430
substantiated or whether or not it's sexual harassment. That is not what you're

370
00:35:06,430 --> 00:35:12,290
doing. Only after you decide it is sexual harassment and it has been

371
00:35:12,290 --> 00:35:17,810
substantiated, would you maybe visit with the Title IX Coordinator about the

372
00:35:17,810 --> 00:35:24,590
sanction piece of it. And it would only be after you've decided sanctions which have to be imposed

373
00:35:24,590 --> 00:35:26,890
if it's substantiated are going to occur.

374
00:35:29,350 --> 00:35:33,390
So it's not the superintendent that makes the decision

375
00:35:33,390 --> 00:35:41,170
or impacts the decision. It's just I think you can get some input as a decision maker into the range

376
00:35:41,170 --> 00:35:50,050
of discipline that could come out of this, and I'm certainly okay with just saying you know

377
00:35:50,050 --> 00:35:54,890
that's a decision which I did. For those that have the lawful authority to do it, here's

378
00:35:54,890 --> 00:36:02,750
the range, and make that part of the decision. And then whether the remedies designed to restore

379
00:36:02,750 --> 00:36:09,610
preserve equal access to the district educational program, you could say absolutely, supportive

380
00:36:09,610 --> 00:36:17,110
measures are required. The district should initiate supported measures to allow this person

381
00:36:17,110 --> 00:36:24,230
to participate freely in class, to do so safely in a manner where they're not scared

382
00:36:24,230 --> 00:36:28,910
to attend class or to participate or go to these activities, whatever it might be.

383
00:36:30,490 --> 00:36:38,370
And then the decision maker must discuss the procedures and permissional, excuse me, permissible

384
00:36:38,370 --> 00:36:41,150
basis for parties to appeal the decision.

385
00:36:44,740 --> 00:36:47,080
I think it's a great idea to have the Title

386
00:36:47,080 --> 00:36:52,740
9 coordinator and they may want their legal counsel to review the outcome prior to smitting

387
00:36:52,740 --> 00:36:58,020
to the parties because once it's out, you know, it can't be changed. And if we miss something,

388
00:36:58,240 --> 00:37:08,020
we forgot to step. It's okay to have that looked at as long as the opinions of Title 9

389
00:37:08,020 --> 00:37:12,200
coordinator or legal counsel are not substituted for the decision-maker.

390
00:37:14,340 --> 00:37:14,680
Title

391
00:37:14,680 --> 00:37:18,260
9 coordinator will then share the notice with the parties and their advisors.

392
00:37:20,600 --> 00:37:27,200
After the Title 9 coordinator gets it from the decision-maker and you try and

393
00:37:27,200 --> 00:37:33,220
share that simultaneously. So handing it to the teacher and mailing it to the

394
00:37:33,220 --> 00:37:39,080
students' parents is not a good idea. If you can call the parents in and share it

395
00:37:39,080 --> 00:37:44,760
with them the same day you share it with the staff member, that's fine. If you

396
00:37:44,760 --> 00:37:48,560
want to call the parents of the two students involved and give it to them at the

397
00:37:48,560 --> 00:37:53,720
same time, that's fine. If you know that both parties regularly check their

398
00:37:53,720 --> 00:37:59,740
email and you can email it to them, maybe let them know it's coming to make

399
00:37:59,740 --> 00:38:05,460
sure others that may have access to that email, don't get it. I think that's

400
00:38:05,460 --> 00:38:05,740
Okay.

401
00:38:07,920 --> 00:38:10,460
But it has to be the written decision.

402
00:38:12,640 --> 00:38:20,680
And as I'm indicated, you could, you could mail it to both, obviously, one's going to get it before the other.

403
00:38:20,980 --> 00:38:31,800
And they don't have to get it at the exact time. But to the extent you can get it to them as close as possible to the same time is what your goal should be.

404
00:38:36,450 --> 00:38:43,930
Once sanctions are imposed, the Title IX coordinators should coordinate the implementation of

405
00:38:43,930 --> 00:38:49,450
remedial action for the complaint and disciplinary action. In other words, you're mandated under

406
00:38:49,450 --> 00:38:56,230
these regulations to impose sanctions. So the decision comes down, something substantiated,

407
00:38:56,770 --> 00:39:00,910
superintendent, maybe with the principal going to decide what those sanctions are.

408
00:39:01,610 --> 00:39:17,950
The title line coordinator, it's not like once the decisions made there out of the picture, title line coordinator needs to make sure that there is, in fact, follow through on those sanctions and that they are imposed because that's a part of the title line process.

409
00:39:18,610 --> 00:39:23,530
as and the same with supported measures. Let's make sure those are implemented.

410
00:39:25,760 --> 00:39:32,280
It's not a one-size-fits-all depending on the circumstances, the person's maybe other information.

411
00:39:33,140 --> 00:39:36,100
It's a case-by-case basis with those sanctions will be.

412
00:39:38,860 --> 00:39:46,200
We talked about the range of possible sanctions which will depend on the severity.

413
00:39:46,200 --> 00:39:51,660
it's no different than what you're doing now and that's based upon what you can

414
00:39:51,660 --> 00:39:57,240
do under your own policies, handbooks and applicable law. The only thing that I

415
00:39:57,240 --> 00:40:00,780
would add there Tracy is the language that I added the last sentence of

416
00:40:00,780 --> 00:40:03,660
determination will be considered good and just calls for suspension

417
00:40:03,660 --> 00:40:07,660
termination or dismissal. We're just put people on notice that I have no idea

418
00:40:07,660 --> 00:40:12,300
how a hearing officer or a court would view that. That's just me saying you know

419
00:40:12,300 --> 00:40:15,980
we as a district and a board that's adopted this policy thinks it's good and

420
00:40:15,980 --> 00:40:16,440
just calls.

421
00:40:20,400 --> 00:40:23,240
So, yeah, that's an informational component.

422
00:40:25,500 --> 00:40:29,400
And I also do not know for sure.

423
00:40:30,200 --> 00:40:37,520
So you could substantiate sexual harassment. I would like to believe that if you substantiated

424
00:40:37,520 --> 00:40:44,440
that an employee engaged in conduct that after a full due process, Title IX investigation

425
00:40:44,440 --> 00:40:51,820
was concluded to be sexual harassment that that should be good and just cause for a dismissal.

426
00:40:52,080 --> 00:40:57,920
Now, I can't guarantee you what an independent hearing officer would say, but it was

427
00:40:57,920 --> 00:41:05,440
seemed to me that sexual harassment substantiated should be grounds for dismissal or termination.

428
00:41:05,840 --> 00:41:12,460
Doesn't mandate that. I mean, sexual harassment varies. Sexual assault is one thing.

429
00:41:13,440 --> 00:41:17,780
comments that are rude, inappropriate, and offensive or something else.

430
00:41:18,160 --> 00:41:21,640
You may choose to dismiss one and not dismiss another.

431
00:41:22,860 --> 00:41:29,100
So that doesn't mean you have to engage in the dismissal process, but it would seem that

432
00:41:29,100 --> 00:41:32,500
it would be good or just cause for that should you choose to do it.

433
00:41:34,830 --> 00:41:37,810
I see we have two questions relating to the decision maker.

434
00:41:37,810 --> 00:41:45,090
The first, does the decision maker get the investigative report at the same time it goes

435
00:41:45,090 --> 00:41:46,990
out to the parties for their 10-day review?

436
00:41:50,700 --> 00:41:53,800
Again, nothing in the regulations require that.

437
00:41:56,080 --> 00:42:04,640
But the responses to the investigation report have to be considered by the decision maker.

438
00:42:05,560 --> 00:42:10,120
I don't, you know, it's not like the responses are coming back and the investigation reporter

439
00:42:10,120 --> 00:42:16,300
is going to now, oh, okay, now I'm going to change the investigation report. That's not the process.

440
00:42:17,240 --> 00:42:26,780
So in my thinking, I would think it would make sense to point the decision maker and send it

441
00:42:26,780 --> 00:42:30,740
to them at or close to the same time as it goes to the parties.

442
00:42:33,240 --> 00:42:36,040
The second question is, could

443
00:42:36,040 --> 00:42:45,380
Should the same fact pattern be reconsidered after ending in some manner?

444
00:42:46,360 --> 00:42:51,700
In other words, actually the question was, could a case be tried twice?

445
00:42:51,820 --> 00:42:53,540
Of course, it's not a criminal case.

446
00:42:54,720 --> 00:43:04,160
But is there ever a situation where a decision-maker disposes of it in some manner, but then

447
00:43:04,160 --> 00:43:11,460
either reconsiderors or brings back for new consideration or reconsideration, the facts

448
00:43:11,460 --> 00:43:15,760
of the case before them other than through appeal.

449
00:43:19,360 --> 00:43:24,600
I hadn't really thought about that and Kelly, feel free to step in.

450
00:43:24,820 --> 00:43:32,020
But my thinking is this, is that once you go through this process and render a decision and

451
00:43:32,020 --> 00:43:38,380
give the individual an opportunity to appeal it, it's over. You're not going to reopen it.

452
00:43:39,080 --> 00:43:46,820
Now, one of the basis for appeal is which I'm about to get into is discovery of new evidence

453
00:43:46,820 --> 00:43:52,900
that was not available at the time of the investigation. And if that occurs, the appeal decision-maker

454
00:43:52,900 --> 00:44:01,420
can say, I'm not going to affirm the decision of the decision-maker because this new evidence could

455
00:44:01,420 --> 00:44:08,080
change the results, in which case the appeal decision maker, and I don't think this is clear

456
00:44:08,080 --> 00:44:13,920
in the ranks either, but Kelly, if you know something or remember something I don't, I think

457
00:44:13,920 --> 00:44:20,700
the process would be to review it back or refer it back to the investigator to consider that new

458
00:44:20,700 --> 00:44:28,180
evidence and make any changes to the investigation report and then have it go back to the decision maker

459
00:44:29,100 --> 00:44:33,100
for a new decision or change if necessary.

460
00:44:33,620 --> 00:44:37,940
But if that evidence comes up a year later,

461
00:44:39,200 --> 00:44:42,240
I don't think it reopens the investigation.

462
00:44:43,940 --> 00:44:47,840
I would agree because you've got the timelines for 10 days for an appeal.

463
00:44:48,080 --> 00:44:50,640
So if it's new evidence that comes in later, I don't think you reopen it.

464
00:44:51,480 --> 00:44:57,120
I think that the only other instance that could come up is in the process of the investigation.

465
00:44:57,120 --> 00:44:59,880
and you find out that maybe there are similar comments.

466
00:45:00,000 --> 00:45:26,980
December or conduct with another student. You could have a potentially separate investigation. You would want to try to consolidate investigations if they are based upon the same set of facts, but depending upon the timing and how things go, you may have a separate investigation on very similar facts with a different complainant. One quick last question. Does the decision maker collaborate with the superintendent or principal when determining sanctions?

467
00:45:26,980 --> 00:45:28,340
Well,

468
00:45:33,980 --> 00:45:39,300
I don't know, Kelly and I spent some time on that yesterday because the regulations

469
00:45:40,760 --> 00:45:43,440
clearly do not address that.

470
00:45:43,740 --> 00:45:50,680
And quite frankly, I think that's the problem I referred to earlier about the discrepancy

471
00:45:50,680 --> 00:45:59,600
and the regulations mandating the decision maker described sanctions, but the decision maker

472
00:45:59,600 --> 00:46:06,600
not having the authority to impose sanctions. I think what we talked about really was going

473
00:46:06,600 --> 00:46:12,860
back to the Title IX coordinator and discussing it with the Title IX coordinator who may want

474
00:46:12,860 --> 00:46:18,880
to discuss it with the superintendent. And it kind of funneled it back through the Title IX

475
00:46:18,880 --> 00:46:24,780
coordinator. Kelly, what's your thoughts? Well, I think what we talked about, you know, whether

476
00:46:24,780 --> 00:46:30,120
There would be an HR issue where, you know, right, you don't have authority both for

477
00:46:30,120 --> 00:46:34,840
expulsion or word dismissal termination, but what I see this, you know, the investigative

478
00:46:34,840 --> 00:46:41,600
report and the decision is being exhibit A to a notice of recommendation for expulsion

479
00:46:41,600 --> 00:46:46,100
or a notice of recommendation for dismissal termination or suspension that may have more

480
00:46:46,100 --> 00:46:50,580
components to it, right, because we're talking just about these individual allegations.

481
00:46:50,580 --> 00:46:57,240
So I try to keep it away, I don't know how it would stand up for the officer of civil

482
00:46:57,240 --> 00:46:57,420
rights.

483
00:46:57,640 --> 00:46:59,220
I'll just preface it with that.

484
00:46:59,400 --> 00:47:05,100
But I like what Tracy has said about trying not to taint the process with too many people's

485
00:47:05,100 --> 00:47:10,500
fingers in the pot as far as sanctions because then that potentially could flow into the

486
00:47:10,500 --> 00:47:12,500
substantiation of the multiple determination.

487
00:47:13,440 --> 00:47:17,820
But if you want to go talk generally to the Title IX coordinator after you've made the determination,

488
00:47:17,820 --> 00:47:23,800
maybe get some input there, but ultimately make a recommended range of sanctions,

489
00:47:24,840 --> 00:47:28,780
you know, the two have authority to make. Now, if you think that whatever happens,

490
00:47:29,120 --> 00:47:34,440
you know, only warrants, you know, you know, a reprimand or something like that that's very clear

491
00:47:34,440 --> 00:47:38,600
and that it shouldn't go to dismissal, you need the freedom to say that,

492
00:47:38,740 --> 00:47:41,700
doesn't mean they're in a whole other case against that student or teacher,

493
00:47:41,700 --> 00:47:47,720
But I do think you want to keep that that process is untainted as possible.

494
00:47:50,520 --> 00:47:56,780
So just clarify a little bit, you know, I think most of you understand what Kelly's talking about is.

495
00:47:57,140 --> 00:48:03,940
This investigation is only focused on these allegations and these facts and the sanctions are related to this.

496
00:48:03,940 --> 00:48:08,360
And if you did as a decision-maker said, I think it

497
00:48:08,360 --> 00:48:09,540
reprimanded the appropriate.

498
00:48:11,080 --> 00:48:17,620
But the superintendent knows that this is the fifth

499
00:48:17,620 --> 00:48:20,340
in a line of five similar allegations

500
00:48:20,340 --> 00:48:24,200
that this individual was reprimanded for previously,

501
00:48:25,190 --> 00:48:29,600
the actual sanction, or not sanctioned, the sanction make,

502
00:48:30,020 --> 00:48:32,380
well, the actual discipline sanction for this

503
00:48:32,380 --> 00:48:36,680
May result in a dismissal, but it's not based only on this.

504
00:48:36,960 --> 00:48:43,140
It's based upon all the other information or other related incidents that the superintendent

505
00:48:43,140 --> 00:48:46,560
may have knowledge of that the decision-maker didn't.

506
00:48:49,520 --> 00:48:56,520
But obviously when you get to the hearing, teachers' attorneys can say, well, didn't the decision-maker

507
00:48:56,520 --> 00:48:59,780
after considering all this reach a conclusion that

508
00:48:59,780 --> 00:49:03,960
reprimand was appropriate, and why are you then recommending

509
00:49:03,960 --> 00:49:08,160
dismissal? The person that was unbiased and looked at all this clearly

510
00:49:08,160 --> 00:49:14,380
didn't think that was appropriate. Well that could happen, but that's where

511
00:49:14,380 --> 00:49:19,920
the superintendent says that's because they didn't have this information. It's

512
00:49:19,920 --> 00:49:25,500
just a pitfall that I really don't know how you avoid it. I think and I do

513
00:49:25,500 --> 00:49:30,620
agree, I'm not sure I'd be comfortable with the decision maker going to the

514
00:49:30,620 --> 00:49:35,400
superintendent. I think maybe visiting with the Title IX coordinator, I'm guessing

515
00:49:35,400 --> 00:49:40,540
the Title IX coordinators are already going to have a feel for the type of

516
00:49:40,540 --> 00:49:45,520
sanctions that would be appropriate in the district for these circumstances.

517
00:49:46,120 --> 00:49:51,220
Maybe they have a general discussion and ultimately I don't think that

518
00:49:51,220 --> 00:49:56,940
regulations prohibit the decision maker from saying determination that sanctions appropriate

519
00:49:56,940 --> 00:50:01,680
they need to be made by the persons with the statutory authority to do that. And I believe

520
00:50:01,680 --> 00:50:09,060
they could range from this to this. I think that that I'm okay that that meets the requirements

521
00:50:09,060 --> 00:50:11,040
for the decision to address sanctions.

522
00:50:15,320 --> 00:50:21,000
Another question. Any concerns with the superintendent being the Title IX coordinator?

523
00:50:25,310 --> 00:50:30,270
The only concern there, and I know, I mean, it's not fair because just smaller school districts

524
00:50:30,270 --> 00:50:34,750
don't really have a choice. But it's just what Tracey's been talking about is that you're

525
00:50:34,750 --> 00:50:38,350
going to come through this process and there are going to be some ultimate decisions made

526
00:50:38,870 --> 00:50:46,290
by the superintendent. And to have him separate from, you know, that role in not having been

527
00:50:46,290 --> 00:50:51,070
involved in the investigation probably helps you in front of an independent hearing officer

528
00:50:51,070 --> 00:50:55,210
in a tea determination matter or potentially a hearing before the board and an expulsion

529
00:50:55,210 --> 00:50:55,530
matter.

530
00:50:55,890 --> 00:50:59,990
I know that's not always feasible, but that would be my ideal if it's not the timeline

531
00:50:59,990 --> 00:51:01,190
coordinators, not the superintendent.

532
00:51:02,310 --> 00:51:07,650
You know, I know the superintendent may say, geez, I really need to fill this role.

533
00:51:07,770 --> 00:51:12,250
We don't have the money to hire another person to be Title IX coordinator, small district.

534
00:51:12,430 --> 00:51:13,170
I can do it.

535
00:51:13,410 --> 00:51:14,770
You need to think about this.

536
00:51:14,770 --> 00:51:22,810
If somebody else is the Title IX coordinator and shepherds this through, and they substantiated,

537
00:51:23,070 --> 00:51:25,850
and based on that, you make a recommendation.

538
00:51:26,290 --> 00:51:32,130
It's pretty easy for me to give you questions in that dismissal hearing about why you made

539
00:51:32,130 --> 00:51:37,210
that recommendation, level that was a full investigation, independent people decided it.

540
00:51:37,310 --> 00:51:38,230
It came to me.

541
00:51:38,290 --> 00:51:39,590
It was substantiated.

542
00:51:39,590 --> 00:51:47,010
whereas if you are the Title IX coordinator, you don't get that same luxury because you were a part

543
00:51:47,010 --> 00:51:53,650
of the process and it's really not independent of you. So I mean it's helpful if it ever comes

544
00:51:53,650 --> 00:52:00,910
to a dismissal if you weren't one of the parties to it. Not to say you can't be and we would work

545
00:52:00,910 --> 00:52:09,070
around that. It's just it's back to the old process where yes I did shepherd it through and I did

546
00:52:09,070 --> 00:52:16,150
pick the investigator and I did pick the decision maker and I did send out the notices and yes I

547
00:52:16,150 --> 00:52:22,610
did all that but I was unbiased et cetera. I mean you can still do it it's just keep that in the back

548
00:52:22,610 --> 00:52:28,050
your mind if you decide to where that have. A related question should the superintendent be the decision

549
00:52:28,050 --> 00:52:33,890
maker. And maybe that begs the question that if the superintendent plays a role in this,

550
00:52:34,530 --> 00:52:37,870
is there a better role for the superintendent to play?

551
00:52:40,700 --> 00:52:47,240
I just have the same comments I just made. If there's an independent person that

552
00:52:47,240 --> 00:52:52,280
reaches a decision that's substantiated, it's going to make the superintendent's job in any type

553
00:52:52,280 --> 00:52:59,320
of a subsequent hearing a whole lot easier. Because now you're saying, I got this decision,

554
00:52:59,320 --> 00:53:04,640
I have to act on it versus I made this decision and I stick by it now and

555
00:53:05,380 --> 00:53:11,040
After looking at everything, this is the decision I reached and I continue to believe it's a valid decision

556
00:53:11,040 --> 00:53:15,320
You can do it. It's just you got one step

557
00:53:16,260 --> 00:53:23,000
Removed and you're one step better off when you get to the hearing if you're not the decision-maker. You may have to be

558
00:53:23,620 --> 00:53:26,240
and just added that the superintendent who

559
00:53:26,240 --> 00:53:29,320
who may know about the five other instances

560
00:53:29,320 --> 00:53:31,720
that are similar to this, how can you show

561
00:53:32,240 --> 00:53:34,960
that the superintendent didn't take that into account

562
00:53:34,960 --> 00:53:38,380
and the ultimate decision or the notice of outcome?

563
00:53:40,660 --> 00:53:43,000
I'm much greater risk for a claim of bias

564
00:53:43,000 --> 00:53:45,040
in that situation.

565
00:53:48,410 --> 00:53:51,310
Okay, we have about, I don't know,

566
00:53:51,430 --> 00:53:52,510
what do we go to about 10 minutes?

567
00:53:52,710 --> 00:53:54,290
A little over to cover the appeal.

568
00:53:54,790 --> 00:53:56,750
This we can do in 10 minutes.

569
00:53:56,750 --> 00:54:08,830
But any party has right to appeal from a determination regarding responsibility and from the district or a dismissal of formal complaint.

570
00:54:09,450 --> 00:54:17,110
So it's a determination regarding responsibility that this individual is responsible or I guess it's not responsible.

571
00:54:18,990 --> 00:54:25,410
But the basis of that appeal has to be a procedural irregularity that affected the outcome of the matter.

572
00:54:25,410 --> 00:54:30,810
You didn't give me an opportunity to provide your response before the interview.

573
00:54:31,150 --> 00:54:33,290
That would be a procedure or irregularity.

574
00:54:33,730 --> 00:54:36,470
You didn't tell me that I could review all the evidence.

575
00:54:37,090 --> 00:54:40,630
You didn't give me a chance to respond once I saw all the evidence.

576
00:54:41,090 --> 00:54:45,010
You didn't give me a chance to draft a response to the investigation report.

577
00:54:45,410 --> 00:54:50,530
You forgot to allow me to ask questions that I might want to ask.

578
00:54:50,530 --> 00:54:54,910
You denied me the right to ask a question that I should have been allowed to ask.

579
00:54:55,570 --> 00:54:58,250
These are all procedural irregularities.

580
00:54:58,450 --> 00:55:02,250
This is why we did this training this morning because that's all new stuff.

581
00:55:03,190 --> 00:55:08,710
And that's all stuff that hasn't occurred in the past that has to occur now or it's

582
00:55:08,710 --> 00:55:09,770
a basis for the appeal.

583
00:55:12,090 --> 00:55:17,630
And the other ground for appeal is new evidence was not available at the time of determination

584
00:55:17,630 --> 00:55:19,010
regarding responsibility.

585
00:55:19,010 --> 00:55:24,210
In other words, when the decision maker made the decision, they didn't have this new evidence,

586
00:55:24,810 --> 00:55:29,670
or the investigator didn't have it, and therefore the decision maker, when they reached their

587
00:55:29,670 --> 00:55:32,670
decision, didn't consider it.

588
00:55:34,750 --> 00:55:40,230
And that new information has to be something that could affect the outcome, but that's a

589
00:55:40,230 --> 00:55:41,190
basis for appeal.

590
00:55:42,290 --> 00:55:46,890
And then the third one is that the coordinator investigator or the decision maker had a conflict

591
00:55:46,890 --> 00:55:47,370
of interest.

592
00:55:47,370 --> 00:55:50,790
So those are the only grounds for appeal.

593
00:55:51,810 --> 00:55:56,430
So, you know, the most common desire to appeal is,

594
00:55:56,690 --> 00:55:58,030
I don't agree with the decision.

595
00:55:58,630 --> 00:56:02,550
I think that based on the evidence that sexual harassment was not

596
00:56:02,550 --> 00:56:06,190
substantiated, that's not something you get to appeal.

597
00:56:07,390 --> 00:56:11,190
It's only the process was messed up, there's new evidence

598
00:56:11,190 --> 00:56:14,210
or there was conflict of interest or bias.

599
00:56:14,210 --> 00:56:16,990
that's the limited basis for an appeal.

600
00:56:19,260 --> 00:56:21,760
Similarly, recommendation for sanctions

601
00:56:21,760 --> 00:56:24,040
or remedies is not a basis for appeal.

602
00:56:28,060 --> 00:56:30,160
If you want an appeal, you have to

603
00:56:30,160 --> 00:56:33,880
provide written notice of appeal and we already indicated that the decision

604
00:56:33,880 --> 00:56:38,920
maker must notify the parties of their right to appeal in the process for

605
00:56:38,920 --> 00:56:39,160
that.

606
00:56:41,300 --> 00:56:44,880
The notice has to state whether it's from a determination of

607
00:56:44,880 --> 00:56:55,080
responsibility or dismissal and we are recovered early on. Hopefully you remember the grounds upon which you must dismiss and the grounds upon which you may dismiss.

608
00:56:57,140 --> 00:57:13,180
So I'm appealing from the determination this individual was not responsible or was responsible but then the grounds still have to be procedural or new evidence or bias.

609
00:57:14,680 --> 00:57:23,740
And if they don't meet the grounds, the parties will be notified in writing of the denial of the appeal and the rationale there for.

610
00:57:28,300 --> 00:57:33,940
So, once this appeal is filed, the Title IX coordinator will notify the other party.

611
00:57:34,820 --> 00:57:43,180
And if appropriate, the investigator or original decision maker, for example, allegation, original decision maker was biased.

612
00:57:43,180 --> 00:57:48,260
And they were biased because they're related to the complaint.

613
00:57:48,840 --> 00:57:52,640
Well, maybe the original decision maker says, wait a minute.

614
00:57:52,980 --> 00:57:59,600
I don't know if you're confusing me with somebody else, but I have no relationship.

615
00:58:00,260 --> 00:58:05,240
That might be a bit reason why you would want to notify the original decision maker of the appeal,

616
00:58:05,500 --> 00:58:08,440
who may submit something to the appeal decision maker.

617
00:58:08,440 --> 00:58:18,440
But those everybody has to be notified, we already covered that the decision-maker on appeal

618
00:58:18,440 --> 00:58:25,120
cannot be any one of the other three parties, the decision-maker investigator, a coordinator,

619
00:58:25,660 --> 00:58:32,460
and that within 10 days from the notification of the appeal and

620
00:58:34,860 --> 00:58:38,080
the investigator and decision

621
00:58:38,080 --> 00:58:41,280
as your maker, each party may submit a written statement

622
00:58:41,280 --> 00:58:43,140
and support or challenge in the outcome.

623
00:58:43,440 --> 00:58:46,380
So, the respondent appeals the decision.

624
00:58:47,500 --> 00:58:49,760
Notice should go out to the complainant

625
00:58:49,760 --> 00:58:53,800
and respondent that a notice of appeal has been filed.

626
00:58:54,220 --> 00:58:55,660
Here's the basis of it.

627
00:58:56,200 --> 00:58:58,940
You each have 10 days to submit a response.

628
00:59:00,020 --> 00:59:03,480
And that response is limited to the portion of the appeal

629
00:59:03,480 --> 00:59:08,280
that was approved and involves them.

630
00:59:08,620 --> 00:59:15,040
So if the appeal is that this process was not followed,

631
00:59:15,740 --> 00:59:19,280
that's the portion of the appeal

632
00:59:19,280 --> 00:59:22,400
that the response should be limited to.

633
00:59:22,900 --> 00:59:25,440
Not that I think you should have interviewed

634
00:59:25,440 --> 00:59:28,120
this other witness or anything like that.

635
00:59:28,320 --> 00:59:29,480
It's okay.

636
00:59:30,060 --> 00:59:30,700
You know what?

637
00:59:30,700 --> 00:59:39,060
this response did go to everybody. We were both copied on the email, or I think there was 10 days,

638
00:59:39,740 --> 00:59:46,340
it's 10 days, not 10 school days, or vice versa, but it's limited to the basis of the appeal.

639
00:59:50,000 --> 00:59:59,080
And then within 10 school days of receipt of the party's written submission, the decision maker will

640
00:59:59,080 --> 00:59:59,900
issue a rip.

641
01:00:00,000 --> 01:00:28,180
Decision. The goal being here, appeal doesn't drag this out very far. You have to render a decision on the appeal within 10 school days is the way we wrote the policy we have. So at least gives you the 10 school days, not calendar days, but that appeal decision has to be reached. And decision has to specify the finding on each grounds for appeal.

642
01:00:28,180 --> 01:00:34,860
ask to be in writing and delivered to the person by mail or email and at that

643
01:00:34,860 --> 01:00:42,220
point it's final. So there is yet another new step to this whole process that

644
01:00:42,220 --> 01:00:43,780
you may have to comply with.

645
01:00:49,890 --> 01:00:53,170
So pill decision shouldn't review the decision

646
01:00:53,170 --> 01:00:56,950
makers decision and say you know based on the evidence I don't agree with the

647
01:00:56,950 --> 01:01:02,970
decision that's not what the the pill decision maker does. You defer to the

648
01:01:02,970 --> 01:01:09,150
original decision except to the extent you need to refer it back because of the procedural

649
01:01:09,150 --> 01:01:16,830
error of the new evidence or the bias. It's not a full consideration of all the evidence. It's just

650
01:01:16,830 --> 01:01:18,030
the grounds for appeal.

651
01:01:22,030 --> 01:01:27,170
It's based on the same evidence unless it's a new review because of new

652
01:01:27,170 --> 01:01:31,270
evidence then you would get a chance to see that to see if it really could make a difference.

653
01:01:33,270 --> 01:01:35,870
Again, you don't get to substitute your judgment.

654
01:01:36,090 --> 01:01:38,390
It's not like the district court decided this,

655
01:01:38,430 --> 01:01:40,030
it's now going to the Supreme Court,

656
01:01:40,210 --> 01:01:42,670
and they can review this all and reach a different decision.

657
01:01:42,930 --> 01:01:44,450
That's not what's going on here.

658
01:01:45,190 --> 01:01:47,570
The decision of the decision make your sticks,

659
01:01:47,770 --> 01:01:50,490
unless there's bias or prejudice,

660
01:01:51,070 --> 01:01:53,150
new evidence or procedural error,

661
01:01:53,550 --> 01:01:56,710
and then you would generally kick it back for reconsideration.

662
01:01:58,970 --> 01:01:59,530
As

663
01:02:04,080 --> 01:02:10,800
far as other appeals being returned, I think what we're talking here about is if after

664
01:02:10,800 --> 01:02:17,480
it gets kicked back and then it's appealed again, the question of whether that's returned

665
01:02:17,480 --> 01:02:22,320
is at the discretion of the Title IX coordinators, whether there should be another appeal after

666
01:02:22,320 --> 01:02:22,620
that.

667
01:02:25,470 --> 01:02:26,870
Kelly, any thoughts about that?

668
01:02:27,330 --> 01:02:32,150
I think that only, I think it's clear what you do with this new evidence, it goes, you

669
01:02:32,150 --> 01:02:36,710
new evidence, then you go back to the investigator to add it to the report who then takes it back

670
01:02:36,710 --> 01:02:43,930
to the decision maker. But if you're bias and you're talking bias or procedural irregularity

671
01:02:43,930 --> 01:02:49,690
and they find those, then the town non-coordinator kind of has to figure out what do we do with this now,

672
01:02:51,610 --> 01:02:59,070
if that makes sense. What do we need to, you know, go back and start over with a new decision

673
01:02:59,070 --> 01:03:03,830
maker if there's bias. And so I think that's what it's talking about.

674
01:03:06,680 --> 01:03:13,920
So or it could be a procedural thing where theoretically the 10 days on the chance to respond

675
01:03:13,920 --> 01:03:20,160
to evidence was actually you didn't count or you counted the day they were given noticed

676
01:03:20,160 --> 01:03:25,180
and you shouldn't have. So they really only got nine days. But in the event they responded

677
01:03:25,180 --> 01:03:30,600
and the response was considered, I could see the appeal decision makers say, you know there was

678
01:03:30,600 --> 01:03:36,440
a procedure or irregularity it did not impact the outcome and therefore the decision should stand.

679
01:03:37,080 --> 01:03:40,800
I agree with that. I think the one that concerns me is the bias, right? So if they come in

680
01:03:40,800 --> 01:03:45,520
after the fact with the investigator and say the investigator was biased and the appeal decision

681
01:03:45,520 --> 01:03:51,980
maker says yes the fact the investigator was biased then you can go redo the investigation and I

682
01:03:51,980 --> 01:03:57,340
think that's you know kind of where that discretion is. I mean do you start over at that point?

683
01:03:58,140 --> 01:03:58,620
potentially?

684
01:04:02,060 --> 01:04:08,020
Well, we did get through them. I apologize for the rapid speed at

685
01:04:08,020 --> 01:04:13,200
which we went through the end. The PowerPoint will be available. Kelly and I

686
01:04:13,200 --> 01:04:18,140
will be available to answer questions to help you through these as they occur.

687
01:04:20,540 --> 01:04:24,640
We've got a few questions if you don't mind trying to hammer those out here real

688
01:04:24,640 --> 01:04:32,300
quick at the end. To the extent you have an answer this, what's your recommendation for which

689
01:04:32,300 --> 01:04:34,380
administrators serve and which roles?

690
01:04:40,180 --> 01:04:45,140
It is so dependent on the district. I think it's helpful.

691
01:04:45,940 --> 01:04:53,780
Like I said, if you have a K6 and a K612 that your principles actually could be investigators,

692
01:04:54,240 --> 01:04:59,060
as long as they're investigating in a different school than their own, so they come at it with

693
01:04:59,060 --> 01:05:02,520
fresh eyes and without, you know, kind of knowing that, you know, Johnny's a real problem

694
01:05:02,520 --> 01:05:07,840
students, so, you know, coming into it with that type of attitude. So I think you can

695
01:05:07,840 --> 01:05:16,740
work there. I think that your HR director sometimes can serve as a Title IX coordinator.

696
01:05:18,660 --> 01:05:24,520
If you have an HR director, I think your special ed teachers are also very good in serving

697
01:05:24,520 --> 01:05:31,800
in some of these types of roles, you know, you could, you know, bring in your business

698
01:05:31,800 --> 01:05:37,740
manager if need be, but again, I think it's helpful to try to develop a cohort with

699
01:05:37,740 --> 01:05:39,920
some other districts. Tracey, I'll let you.

700
01:05:42,540 --> 01:05:48,180
Yeah, it's just difficult, especially in small districts, but certainly I do think principals

701
01:05:48,180 --> 01:05:58,160
could be investigators. Possibly even decision makers, as long as it doesn't involve people, they have regular contact with.

702
01:06:00,020 --> 01:06:16,180
Title IX coordinator, it's not uncommon, maybe HR will fill that role possibly in a Administrator special director. I think it's going to very significantly from district to district because I think what is a superintendent.

703
01:06:17,180 --> 01:06:44,300
initially maybe even appointing a Title IX coordinator or superintendent and Title IX coordinator need to ask themselves is, is this person a deliberate person who can do a thorough investigation is not easily influenced or is not that can remain calm and objective throughout the process.

704
01:06:44,300 --> 01:06:51,480
us and we'll do a solid investigation at understanding what they are required to do and the same

705
01:06:51,480 --> 01:06:56,300
with the decision maker that, you know, you don't want someone that, well, geez, if I get

706
01:06:56,300 --> 01:07:04,840
this report from the principal, I'm going to just assume that they shouldn't be offering

707
01:07:04,840 --> 01:07:12,700
opinions, but the decision maker has got to be objective and impartial and not easily

708
01:07:12,700 --> 01:07:19,440
excited or doesn't jump to conclusions, but will be thoughtful, deliberative, and unbiased.

709
01:07:19,680 --> 01:07:22,400
I mean, those are probably the keys to what role do you feel?

710
01:07:23,460 --> 01:07:27,200
And just to add to that, I think what complicates it further is employee matters

711
01:07:28,420 --> 01:07:34,440
because you're potentially having a principal serve as someone who is investigating a peer,

712
01:07:34,880 --> 01:07:39,340
and I think that that can get difficult. And I'm not again looking to add to the expense, but

713
01:07:39,340 --> 01:07:50,540
especially as folks are becoming more comfortable with their roles, I'm encouraging them potentially to look at a decision-maker that is an attorney, the order to hire somebody not in the, you know, the district, whether it be an attorney.

714
01:07:50,700 --> 01:08:01,440
I know that some districts have also talked to retired teachers about coming in and playing and contracting them out to play in some of these roles, you know, especially investigator or decision-maker.

715
01:08:02,420 --> 01:08:04,220
So that's, you know, an option.

716
01:08:06,100 --> 01:08:12,320
I think we're out of time. We'll try to. Just this last question is about the appeals decision maker.

717
01:08:13,220 --> 01:08:22,980
Do they need the same training as the decision maker and is it possible that the decision the appeals decision maker be a committee rather than an individual?

718
01:08:25,680 --> 01:08:31,380
Well, as far as the training, they absolutely do need to be trained. Do they need the same as the decision maker?

719
01:08:31,380 --> 01:08:40,620
I think it would be helpful, and not just the decision maker, but investigator title.

720
01:08:40,840 --> 01:08:45,740
I think this whole training, it all dovetails together, because if you're going to determine

721
01:08:45,740 --> 01:08:49,920
if procedures were missed, you need to understand what procedures are.

722
01:08:50,460 --> 01:08:54,420
If you're going to determine if there's bias or prejudice, I mean, we had training about

723
01:08:54,420 --> 01:09:00,400
what bias is, what prejudice, confidentiality, conflict of interest, they need to understand

724
01:09:00,400 --> 01:09:10,080
all that and certainly the regulations mandate that they be trained so and I just think that the

725
01:09:10,080 --> 01:09:15,760
whole picture fits together that's why I've encouraged people whether whatever role they are to

726
01:09:15,760 --> 01:09:24,870
stay for the entire training as far as a committee. I don't I've seen folks do committees and I don't

727
01:09:24,870 --> 01:09:32,010
the regs preclude that. And I think, you know, some districts with the manpower would prefer

728
01:09:32,010 --> 01:09:38,490
two or three, you know, a panel to make a decision, both at the decision maker and appeal

729
01:09:38,490 --> 01:09:39,470
decision maker level.

730
01:09:40,750 --> 01:09:44,670
Well, I think we're tracing you have a last word of power out of time.

731
01:09:44,750 --> 01:09:51,530
I just, I know there's a drain on manpower, especially in small districts, which make that problematic.

732
01:09:51,530 --> 01:09:56,150
But other than the manpower, I don't see a problem with that.

733
01:09:56,670 --> 01:09:58,410
Let me add one more hopeful thing, Brian.

734
01:09:58,530 --> 01:10:00,070
Not hopeful. I don't know if it's good or bad.

735
01:10:00,390 --> 01:10:03,250
But one thing we are seeing is with this heightened definition.

736
01:10:03,250 --> 01:10:08,650
We're seeing a lot fewer cases that need to follow this policy.

737
01:10:09,310 --> 01:10:11,270
So it's not, you know, that is one.

738
01:10:13,050 --> 01:10:14,370
One reality of it.

739
01:10:15,190 --> 01:10:20,450
Great. Well, a big thank you to Tracy and Kelly for providing us

740
01:10:20,450 --> 01:10:27,110
this information today, it certainly is massive amount to try to consume and understand

741
01:10:27,110 --> 01:10:31,510
and appreciate you breaking it down for us. So, those of you that participated today

742
01:10:31,510 --> 01:10:38,070
as attendees, thank you for your time, thank you for spending your morning with us.

743
01:10:38,510 --> 01:10:45,230
We will be contacting your districts to verify participation and we will also get materials

744
01:10:45,230 --> 01:10:51,710
out to those that were verified attendees. Again, thank you all, and hope you have a good rest of