Campus Sexual Harassment: Title IX Training Requirements

Title IX personnel should understand these terms:

• Complainant: Alleged victim of sexual harassment, regardless of whether a formal complaint has been made
• Respondent: Alleged perpetrator of sexual harassment, regardless of whether a formal complaint has been made
• Decision-maker or hearing officer: Official presiding over Title IX hearings and making responsibility determinations
• Appeal officer: Decision-maker handling an appeal
• Actual knowledge: Notice or allegations of sexual harassment to either the Title IX coordinator or to any official with authority to institute corrective measures on your institution’s behalf; higher education institutions that have designated certain employees as “responsible employees” and required them to report harassment to the Title IX coordinator may continue this practice, but all training should make clear that under the regulations, only notice to the Title IX coordinator or an official with the necessary “corrective” authority constitutes actual knowledge of the institution for Title IX purposes
• Against a person in the United States: A person must be physically located in the United States when alleged harassment occurs to be protected under Title IX, even if that person is participating in an activity officially sponsored by their institution, such as a study abroad program; this provision is based on the language of the Title IX statute (“No person in the United States shall, on the basis of sex” be excluded from or denied the benefit of educational opportunities)

Title IX requires an institution to respond in a manner that isn’t deliberately indifferent (a clearly unreasonable response under the known circumstances) when the institution has actual knowledge of sexual harassment occurring in its education program or activity against a person in the United States.

The regulations require schools to train personnel — whether employees or third-party providers with whom a school contracts — who serve in defined Title IX roles on certain topics. Institutions are left mostly on their own to decide how to provide the training. The regulations don’t mandate that training occur on a particular timetable, with particular frequency, or in any particular format. They also don’t specify who should conduct training.

Choose an approach that works best for your school.

Your institution’s Title IX coordinator(s), investigator(s), decision-maker(s) (including those handling appeals), and any informal resolution facilitator(s) (“Title IX personnel”) must receive training on:

• The definition of sexual harassment
• The scope of your institution’s education programs subject to Title IX
• How to conduct an investigation and your institution’s grievance process, including appeals and any informal resolution process (IRP) it offers
• How to serve impartially, avoiding bias, conflicts of interest, and stereotypes

Definition of Sexual Harassment

Sexual harassment is conduct on the basis of sex that is any of the following:

• Quid pro quo harassment (an employee of the institution conditioning educational benefits on participation in unwelcome sexual conduct)
• Hostile environment sexual harassment (unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the institution’s education program or activity)
• Sexual assault, dating violence, domestic violence, or stalking, defined by the Clery Act (as amended by VAWA and its regulations)

Scope of Education Programs 

The scope of your institution’s education programs subject to Title IX includes all operations, including:

• Locations, events, or circumstances over which your institution has substantial control over the respondent and the context in which the sexual harassment occurred
• Any building a recognized student organization owns or controls, such as certain Greek organization houses

Online learning and programming are part of a school’s covered “operations” if they use the school’s:

• Network
• Learning platform
• Hardware/software
• Any other aspect of technology over which the school has substantial control

Train Title IX coordinators and other personnel to examine the allegations closely and determine if the necessary elements exist.

Thorny situations can occur with off-campus conduct that lacks an obvious nexus to the school. For example, if a female student alleges sexual assault by a male student in a privately owned off-campus apartment building, the institution likely has substantial control over the respondent (because of his student status), but it lacks control over the “context” of the harassment since it doesn’t own or control the location of the alleged assault. As a result, Title IX wouldn’t apply. (See an example of training on this topic at Austin College.)

Conducting Investigations

Take several actions to help train personnel on how to conduct investigations and on your institution’s grievance process — including appeals and any IRPs.

Consult UE’s Checklist for Sexual Harassment Investigations regarding critical aspects of investigations, including specific requirements under the regulations (such as that the investigator must share evidence and a draft report with the parties and give them at least 10 days to respond in writing).

For a comprehensive tool to help your school review and revise its grievance processes consistent with the regulations, see (as appropriate) UE’s Checklist for Title IX-Compliant Sexual Harassment Grievance Procedures in Higher Education or Checklist for Title IX-Compliant Sexual Harassment Grievance Procedures in K-12 Schools. Both publications cover issues such as giving the parties notice of Title IX allegations, removing a respondent from campus, and making responsibility determinations. Consider using or adapting the applicable checklists to train Title IX personnel on how investigations or the grievance process works at your institution.

In addition, most institutional training examples linked in this report include detailed information about the investigatory and grievance processes at those schools.

Ensure Title IX Personnel Serve Impartially

Title IX personnel must avoid bias, conflicts of interest, and stereotypes. Regardless of their specific role, they must treat parties fairly and equitably, not favoring one over another.

Train them how to avoid:

• Conflicts of interest. Such conflicts might be actual (the Title IX coordinator has an existing personal friendship with a party) or perceived (a male respondent objects to the decision-maker assigned to his case because she previously volunteered at a rape crisis center). In the former case, the Title IX coordinator should delegate duties to someone else; in the latter, the volunteer work alone doesn’t establish a conflict that requires the decision-maker’s recusal.
• Holding a bias against a party. The bias might be explicit but is more likely implicit, affecting the holder’s thoughts and actions on a subconscious level that is difficult to uncover. Combat bias by consistently teaching Title IX personnel to treat each matter as unique and to consider only factual allegations, not factors such as gender, ethnicity, socioeconomic status, or reputation of parties or witnesses.
• Relying on stereotypes. Impermissible stereotypes include beliefs that all fraternity members commit sexual assault after drinking too much and that women develop regrets after consensual sex and then lie about an assault.

Central Arizona College’s training includes a section on impartiality, with hypotheticals and a quiz. The College of Wooster also features hypotheticals and explains the regulations don’t establish per se rules but instead give schools discretion to determine whether a conflict or bias exists.

Additional Training Concepts

The regulations cover other topics your school must incorporate when training Title IX personnel:

• The single-investigator model is no longer permissible. The Department of Education (ED) concluded that separating investigatory and adjudicatory functions was essential to a key regulatory aim — that institutions treat both parties equitably and throughout the Title IX process.
• Title IX applies to students and employees. Ensure Title IX personnel understand that your school’s Title IX policy and grievance procedures apply to conduct between students, between employees, and between students and employees. (Title VII also may apply to employment matters, so consult counsel about potentially competing legal requirements.)
• Recognize the burden of proof is always on the institution, never the parties. In addition, the school alone is responsible for gathering enough evidence to determine whether a respondent engaged in sexual harassment. At the same time, schools may not prohibit parties from discussing the allegations (in other words, the regulations forbid “gag orders”) or from gathering and presenting relevant evidence if they wish.
• Define consent. The regulations don’t define “consent” to sexual activity and let institutions define the term for themselves — but they stress the definition must be applied consistently across Title IX matters. For example, train Title IX personnel not to evaluate the presence or absence of consent any differently based on whether the complainant is female or male.
• Address sexual harassment outside Title IX’s scope. The regulations let schools respond to sexual harassment that falls outside the narrowed scope of Title IX (such as conduct during a study abroad program) under other code of conduct or disciplinary provisions. If your school opts to do this, train Title IX personnel so they can recognize when complainants’ allegations may trigger such an alternative provision.
• Maintain confidentiality. Institutions generally must keep confidential the identity of parties and witnesses. Train Title IX personnel on the limited exceptions for disclosures otherwise required by law, permitted by the Family Educational Rights and Privacy Act (FERPA), or as needed to carry out the grievance process. Instruct Title IX personnel to maintain the confidentiality of participants in the Title IX process and consult legal counsel if disclosure may be necessary.
• Explain the applicable standard of evidence. Institutions may choose between two standards of evidence for resolving Title IX matters — preponderance of the evidence or clear and convincing — but they must use the same standard in all formal sexual harassment complaint proceedings (including those involving faculty or unionized employees), regardless of whether they are conducted under Title IX. Preponderance of the evidence means it’s more likely than not (anything higher than 50% likely) that a respondent engaged in the alleged acts. Clear and convincing means it’s substantially more likely than not (substantially higher than 50% likely) that a respondent engaged in the alleged acts. Ensure Title IX personnel are trained on whichever standard your institution chooses, preferably through hypotheticals that give them practice applying the standard. A legal background can be helpful for providing this training.
• Emphasize that Title IX prohibits retaliation. This includes intimidation, threats, coercion, or discrimination against any person for the purpose of interfering with a right or privilege under Title IX or because the person made a report or complaint, testified in, assisted in, or participated or refused to participate in an investigation, proceeding, or hearing under Title IX. However, explain that exercising First Amendment rights doesn’t constitute retaliation under Title IX. Also explain that a person shouldn’t be charged with an additional code of conduct violation not involving sex discrimination or sexual harassment but arising from the same facts or circumstances as a report or complaint of discrimination or harassment — such as underage drinking — if that charge would be made for the retaliatory purpose of interfering with a right or privilege under Title IX or the regulations.

For examples of fundamental training for Title IX personnel, see materials that Lake County (Fla.) Schools, Mercer Area (Pa.) School District, Elmira College, and the University of Oregon posted. In addition, these materials incorporate more in-depth training for specific Title IX roles (such as investigators and hearing officers, discussed further below), and Elmira’s covers New York state law requirements.

The regulations state that Title IX coordinators are responsible for effective oversight of the entire Title IX process and also spell out their specific duties. (For a comprehensive summary of these duties, see UE’s Title IX Coordinators Checklist: After the Regulations.) Because initial interactions between a school and a complainant are critical, training should emphasize actions the Title IX coordinator must take in response to alleged sexual harassment.

Training should include explaining:

• Supportive measures
• Formal complaints
• Notices of allegations
• Complaint dismissals
• Any IRP your school offers
• Supportive Measures

Supportive Measures 

Ensure the Title IX coordinator knows that promptly after learning of a report or allegation of harassment, the coordinator must contact the complainant and explain that supportive measures are available whether or not the complainant wants to make a formal complaint. For details about supportive measures, see UE’s Title IX Supportive Measures, Remedies, and Sanctions: After the Regulations.

Formal Complaints 

Train your institution’s Title IX coordinator to explain the complainant’s option to file a formal complaint (a document alleging sexual harassment against a respondent and requesting an investigation). This filing triggers the school’s Title IX grievance process and requires it to investigate. Without a formal complaint, investigations can’t occur.

The complainant usually signs the formal complainant, but where the Title IX coordinator believes that failing to investigate would be “deliberately indifferent” (such as where a serial perpetrator appears to be involved), the Title IX coordinator can (and should) sign a complaint, regardless of the complainant’s wishes.

Notice of Allegations

Train your Title IX coordinator to send the parties the required Notice of Allegations after a formal complaint is filed.

Complaint Dismissals 

Information gathered from the face of a complaint or during the investigation may cause an institution to dismiss the complaint on either mandatory or discretionary grounds. Train the Title IX coordinator on both types of dismissals, including any school policies relating to discretionary grounds. In addition, explain the regulatory requirements for sending formal written notice of a dismissal to both parties, along with notice of their right to appeal the dismissal.

Informal Resolution Process 

An IRP, such as mediation, is optional under the regulations. But it only may be offered if a formal complaint is filed. The regulations prohibit an IRP in cases where an employee allegedly sexually harassed a student. If your school offers an IRP, train the Title IX coordinator to explain it, emphasizing that it’s voluntary and both parties must agree to it.

Beyond training Title IX coordinators on procedural requirements, prepare them to:

• Coordinate your institution’s compliance with Title IX, including its response to all complaints of sexual harassment.
• Monitor the progress of pending sexual harassment matters, including the status of investigations, hearings, and appeals (and to intervene if a case gets off track).
• Conduct or coordinate training for Title IX personnel and other employees as needed.
• Arrange and maintain records of supportive measures for parties.
• Conduct Title IX investigations (if allowed or required under institutional policy).
• Oversee Title IX recordkeeping.
• Periodically review and update Title IX policies and procedures.
• Collect and analyze data on your institution’s sexual harassment complaints and allegations, looking for patterns and trends.
• Develop effective working relationships with other offices on campus that deal with sexual harassment, such as Human Resources, Student Affairs, Athletics, and Student Health and Counseling.
• Consult regularly with legal counsel and the administration.

In addition to reviewing UE’s Title IX coordinator resources, see the University of Toledo’s comprehensive Title IX coordinator training materials.

Investigators need solid training in all aspects of Title IX investigations. For those new to the role, provide foundational training upon which they can build. Train investigators how to satisfy regulatory requirements to:

• Send the parties written notice of investigative interviews or meetings that gives them sufficient time to prepare.
• Let both parties review inculpatory and exculpatory evidence obtained during the investigation that is directly related to sexual harassment allegations in the formal complaint.
• Write an investigative report that fairly summarizes the relevant evidence but avoids drawing conclusions and doesn’t make a determination on responsibility — that is the decision-maker’s job.
• Give both parties at least 10 days to review relevant evidence the investigator gathered and a chance to respond in writing. Consider their written responses before finalizing the investigative report.
• Maintain records regarding any evidence that wasn’t shared with the parties, such as evidence protected by a legal privilege.
• Send both parties and their advisors the investigative report for further review and written comment. Do this at least 10 days before the hearing.

In the Title IX context, inculpatory evidence tends to show a person is responsible for the alleged sexual harassment. Exculpatory evidence tends to show the opposite, that a person isn’t responsible.

In addition, your school’s investigators should understand:

• The importance of remaining neutral and objective, rather than acting (or being perceived) as an advocate for either party
• Techniques for interviewing uncooperative or hostile witnesses
• When to ask open-ended questions (“Tell me about…”) or leading questions (“Isn’t it true that…”)
• Creating (if state law allows) a transcript or audio recording of party and witness interviews; investigators should ask the person to review it for accuracy and, if necessary, make changes
• Keeping records of Title IX investigations for seven years; teach investigators their documentation should reflect clear and thorough work that helps others follow and understand the original investigatory path

Review UE’s Checklist for Sexual Harassment Investigations; the material beginning with “Investigation Preparation” may spark training ideas. For K-12 schools, see the investigator training St. Mary’s County (Md.) Public Schools provides. The University of North Texas at Dallas provides a helpful overview of the Title IX grievance process before focusing on the investigator’s role; it stresses respecting both parties’ rights and lists “do’s” and “don’ts” for investigators.

The most important duties for decision-makers are conducting hearings and writing determination letters. Because the detailed regulatory requirements for hearings in particular are new, give special attention to training.

Provide training related to hearings, cross-examinations and relevance, written determinations, and appeal officers.

Hearings

The Title IX regulations require that formal complaints in higher ed institutions be subject to a hearing to make a responsibility determination. Train decision-makers on:

• How to use technology that lets all participants see and hear each other if the parties will be separated during the hearing
• The role of each party’s advisor in conducting cross-examination
• How to document the hearing by an audio, audiovisual, or written transcript that is available to the parties for review

Cross-Examination and Relevance

Train hearing officers on nuances of cross-examination and relevance under the regulations, including:

• When a party or witness refuses to be cross-examined at the hearing, the decision-maker may not rely on any statement of that person when determining responsibility
• Determining whether a question is relevant — and explaining a decision to exclude a question as irrelevant — before the party or witness may answer
• Not drawing an inference about responsibility based solely on a party’s or witness’s absence from the hearing or refusal to answer questions
• Handling questions or evidence about a complainant’s sexual predisposition or prior sexual behavior; they’re never relevant in Title IX proceedings unless offered to prove that someone other than the respondent committed the alleged harassment, or they concern specific incidents of the complainant’s prior sexual behavior with the respondent and are offered to prove consent
• Understanding that certain other types of evidence aren’t relevant or otherwise aren’t subject to use in the grievance process, including information protected by a legally recognized privilege, a party’s medical or psychological records (unless the party provides voluntary, written consent), or any question that the decision-maker deems repetitive or duplicative

Written Determination

Decision-makers must create a written determination on responsibility that applies the appropriate standard of evidence (either the preponderance of the evidence or clear and convincing). Train them how to draft determinations that include these required elements:

• The complainant’s sexual harassment allegations
• Every procedural step, from the complaint’s receipt through the determination
• Specific code-of-conduct provisions that were violated, if the decision-maker determines the respondent is responsible for harassment
• Findings of fact supporting the determination on responsibility
• A conclusion regarding the application of the code of conduct to the facts
• A statement of rationale for the result as to each allegation in the complaint, including any findings of responsibility and sanctions
• Any remedies for the complainant, including disciplinary or punitive sanctions against the respondent
• Your institution’s appeal procedures, including bases for either party to appeal

A good general starting point for decision-maker training is this ED Office for Civil Rights (OCR) webinar on their roles and responsibilities. Considering the legalistic nature of the duties, many schools’ reaction to the hearing requirement was: “Only lawyers could do this” — and realistically, training non-lawyers to preside over a courtroom-like hearing may be a heavy lift.

Particularly for schools that have no option but to enlist faculty members or other employees as decision-makers, we suggest finding a skilled attorney to help with establishing the training and focusing on basics at the beginning. Encourage decision-makers to:

• Review the file carefully and think about questions you’d like to have answered and those the parties’ advisors may ask. Decision-makers can pose their own questions, so take advantage of that early in the hearing. If an advisor later asks the same question, you can deem it irrelevant as repetitive or duplicative, streamlining the hearing.
• Pay close attention to witness testimony bearing on credibility. Do witnesses have a motive to lie? Were they physically able to observe something they claim to have seen? If their story has changed significantly, can they explain discrepancies?
• Don’t reach conclusions (even tentative ones) until witness testimony is complete and all other evidence is submitted. Evaluate the evidence as a whole and determine whether it’s sufficient, applying the relevant evidentiary standard, to persuade you the respondent is responsible for sexual harassment.
• Remain neutral and objective; like investigators, decision-makers must never appear to favor either party.
• Avoid considering the potential effects of your determination on the parties.

Examples of attorney training for decision-makers include The University of Montevallo, the University of Texas at San Antonio (which covers topics such as avoiding implicit bias, establishing control over the hearing, assessing witness credibility, and writing determination letters), and for K-12 schools, the Kentucky School Boards Association.

Appeal Officer Training 

For each appeal, your institution must ensure that the appellate decision-maker isn’t the Title IX coordinator, investigator, or original decision-maker in the matter being appealed, so you need enough trained decision-makers to handle appeals. Training for appeal officers generally should be the same as for other decision-makers, but it’s particularly important that they understand the permissible grounds for appeal.

Either party may appeal on the basis of:

• A procedural irregularity that affected the outcome
• New evidence, not reasonably available at the time the determination was made, that could have affected the outcome
• A claim that a Title IX coordinator, investigator, or decision-maker had a bias or conflict of interest, for or against complainants or respondents generally or in the particular matter, that affected the outcome

Schools also may allow appeals on other bases (such as disproportionality of sanctions) if they are available equally to both parties. If your school does this, train appeal officers on all potential appeal grounds.

The University of Hawaii, West Oahu offers separate training for appeal officers, including recommendations on items to consider during the review process and suggestions for drafting appellate determinations.

Like investigators and decision-makers, facilitators of IRP either may be employees or third parties, such as outside attorneys. While the regulations say little about the process itself, they require institutions to give facilitators the same fundamental training as other Title IX personnel. To illustrate, Three Rivers College trains facilitators on quid pro quo and hostile environment harassment and the applicable Clery Act definitions, as well as the school’s definition of consent.

Beyond this, facilitators should receive training on how to conduct an institution’s particular form of IRP; the University of Southern Mississippi accordingly gives facilitators mediation training. Similarly, the College of Wooster’s extensive facilitator training discusses mediation in the context of Ohio law, as well as restorative justice, both mentioned in the regulations’ preamble as forms of IRP. The materials include questions for schools to consider when deciding whether an existing mediation or restorative justice program would satisfy regulatory requirements for an IRP under Title IX.

For more detailed information about IRPs, including best practices that training should incorporate, see UE’s Informal Resolution of Sexual Harassment Complaints.

The regulations don’t require any training for advisors, who — unlike Title IX personnel — function in this role essentially as advocates for the parties.

Parties can choose anyone as an advisor, including friends or family members with no relationship to the institution. However, some institutions assemble panels of campus community members (employees, students, or both) willing to serve as Title IX advisors. Moreover, if a party fails to name their own advisor before a hearing, the institution must assign that party an advisor for the limited purpose of asking questions at the hearing. When the school provides the advisor, it should provide some level of training. Especially for advisors with no legal background, consider having counsel conduct the training.

Each institution should consider its own campus culture when determining appropriate advisor training. But at minimum, we recommend including:

• A concise explanation of Title IX and the regulations, particularly the definition of sexual harassment
• An overview of how your institution’s Title IX grievance process operates, covering steps involved and roles of Title IX personnel
• The advisor’s role in the grievance process, highlighting the duty to conduct cross-examination of the other party and witnesses at the hearing (for higher education institutions and K-12 schools that provide hearings)
• Rules governing relevance of evidence, such as exclusion of evidence about a complainant’s sexual history, with limited exceptions
• Any rules of hearing decorum the school has, such as limitations on when advisors may speak

Some institutions, such as the University System of Georgia and Valencia College, provide extensive advisor training, and the University of Texas Permian Basin includes tips for questioning witnesses as well as hypotheticals. Colby College created a mandatory “User Guide” for advisors that details their duties throughout the Title IX grievance process.

The regulations don’t address any particular student training, but since at least 2011 most institutions have trained their students on sexual misconduct prevention and response. We believe this should continue under the regulations. At a minimum, train students (including, for these purposes, parents or guardians of minor students) in the following areas:

• The narrowed definition of sexual harassment under Title IX. It’s important to cover the new definition because some students likely were familiar with the expansive interpretation of Title IX that was common pre-regulations. They should understand conduct that previously fell under Title IX — such as alleged sexual assault between students on a study abroad trip — no longer does.
• How and where to report. Students are unlikely to distinguish among officials who have authority to institute corrective measures and those who don’t; institutions may prefer to instruct students to report sexual harassment to the Title IX coordinator, even if they’re unsure whether Title IX would apply. If your school keeps the “responsible employee” designation post-regulations, caution students that while reporting to them remains an option, it won’t technically put the school on notice under Title IX.
• The Title IX process. Describe the process. Outline procedural steps including the availability of supportive measures, how to file a formal complaint, the hearing and cross-examination requirements for formal complaints, and any IRP your institution offers.
• Alternative processes for non-Title IX matters. If your institution addresses sexual misconduct that isn’t subject to Title IX under other conduct codes or disciplinary procedures, make this clear to students and explain how to report violations.

The regulations require institutions to keep for seven years all materials used to train Title IX personnel and to post on its public website the current training materials. Materials subject to this requirement include:

• PowerPoint presentations
• Publications, including checklists, guides, articles, and studies about sexual harassment
• Case studies, hypothetical scenarios, or tabletop exercises
• Online courses and training videos
• Recorded webinars, such as OCR webinars explaining the regulations and webinars law firms or consultants produce interpreting or analyzing them

The regulations clarify that institutions are responsible for posting training materials regardless of whether third parties that create them consent, so schools that have outside attorneys or consultants provide training should negotiate for and include in the agreement the provider’s explicit consent to the material being posted. Experienced Title IX trainers understand the posting requirement and likely will agree if they receive appropriate attribution. Institutions should reconsider working with any providers that resist.