In an article in the July/August 2023 issue of the Civil Rights & Social Justice Section Review, which discussed anticipated 2023 amendments to the Title IX Regulations (2023 Regulations), we noted that the U.S. Department of Education’s (ED) Office for Civil Rights (OCR) had announced a deadline of October 2023 (revised from May 2023) for publication of the final 2023 Regulations. The month of October has come and gone without publication of those Regulations and without an official statement from the ED/OCR about a further revised timeline. However, the agency’s most recently updated regulatory agenda shows an anticipated date of March 2024 for final action on the Title IX Regulations.
Even assuming a March 2024 publication date for amended Title IX Regulations and a typical implementation deadline of 60 to 90 days after publication, and further considering the complexity of the Regulations, many experts in the field predict that the current 2020 Regulations will govern for the remainder of the 2023-2024 school year. Therefore, it is important that school district administrators, staff, attorneys and school committee members, students and their parents/guardians, and law enforcement and relevant administrative agencies, become aware of this delay and remain current or become knowledgeable about the governing 2020 Regulations. Highlighted below is a significant implementation issue under those Regulations to which OCR is paying increased attention and that was alleged as a claim in at least one lawsuit parents filed against a Massachusetts school district.
Issue Spotlight: Overlapping School District And Law Enforcement Investigations Involving Title Ix Sexual Harassment Claims
Under the Title IX statute and 2020 Regulations, school districts are legally responsible for providing education programs and activities free from sex discrimination, which includes sexual harassment. A primary means for schools to accomplish this objective is by developing and implementing a legally required sexual harassment policy compliant with the Regulations. That policy requires schools to perform prompt, thorough and fair investigations of alleged sexual harassment of students and school employees. One critical implementation issue is the failure of certain school districts and higher education institutions to conduct independent Title IX school investigations when a concurrent criminal investigation based on the same set of facts is ongoing.
Independent School Duty to Investigate Sexual Harassment. If an incident of alleged sexual harassment also involves potential criminal conduct,1 a school (in consultation with legal counsel if necessary) must determine whether to notify appropriate law enforcement and/or other authorities. The preamble2 to the 2020 Regulations expressly states, however, that a school district cannot satisfy its legal obligation to investigate simply by referring sexual harassment allegations to law enforcement (or requiring or advising complainants to do so). Similarly, a school cannot indefinitely, or for a protracted period of time, suspend its own Title IX investigation while law enforcement conducts a concurrent investigation into the same set of underlying factual allegations. A school’s responsibility to promptly and fairly investigate and adjudicate claims of sexual harassment exists separate and distinct from any concurrent law enforcement proceeding, even if that law enforcement agency requests that the school district indefinitely suspend its own investigation. As discussed in the following section, temporary and brief delays of a school investigation may be appropriate under certain circumstances.
Reasons for a school’s independent duty to investigate include, among others, the different purposes of school and law enforcement investigations and differences between the burdens of proof that they each use. A school investigation must determine whether an alleged harasser (respondent) has violated a school’s sexual harassment policy, thereby ensuring that its education programs and activities are delivered free from sex discrimination. A criminal investigation must determine whether probable cause exists to seek a criminal complaint charging a person with violating state and/or federal criminal law. Using the investigatory evidence, prosecutors must prove “guilt beyond a reasonable doubt.” Under the Regulations, however, a school uses a lower standard of evidence than “guilt beyond a reasonable doubt” when it decides whether a respondent violated the school’s sexual harassment policy. Further, the school is responsible for stopping the sexual harassment, preventing its recurrence and remedying the effects upon not only the person harassed but the entire school community.
Concurrent Investigations. The Regulations recognize, nonetheless, that a school’s independent obligation to investigate Title IX claims may overlap with a law enforcement investigation into possible criminal offenses based on the same set of factual allegations. Under those circumstances, a school’s students and employees may be best served by having the school cooperate or coordinate with law enforcement. To that end, the Regulations allow schools flexibility to address overlapping investigations so that potential targets of sex offenses are better served by both systems while ensuring that a school’s grievance (formerly complaint resolution) process is not made dependent on a concurrent law enforcement investigation.
The Regulations further acknowledge that, under certain circumstances, concurrent law enforcement activity may constitute “good cause” for a short-term delay or limited extension of a school’s time frames under its sexual harassment policy. For example, if a police investigation uncovers evidence that it plans to release at a specific time and that evidence would be material to a school’s determination about whether a respondent has violated the school’s sexual harassment policy, the school may have “good cause” to temporarily and briefly delay its grievance process to allow the evidence to be included as part of the school’s investigation.
The school, nonetheless, must comply with all provisions of the grievance process spelled out in its sexual harassment policy. It should not wait until the conclusion of a criminal investigation to conduct its own investigation, should not wait to notify complainants of their Title IX rights and of the school’s grievance process, and should not wait to promptly offer supportive measures (formerly interim measures) to ensure the safety and well-being of the complainant and the school community while law enforcement’s fact-gathering is in progress. Once a police department notifies a school that it has completed the evidence-gathering portion of its investigation (not the investigation outcome or filing of charges), the school must promptly resume and complete its own fact-finding for the Title IX investigation. A Title IX grievance process should be concluded as promptly as possible even if the law enforcement matter is ongoing.
Memorandum of Understanding (MOU) or Other Written Agreement. A recommended best practice is for a school and its local law enforcement agency to enter into a written agreement about how to handle concurrent investigations, preferably before such a situation arises. As part of the 2018 Massachusetts criminal reform law, school districts and police departments were required to enter into MOUs to address the roles and responsibilities of school resource officers (SROs) in Massachusetts public schools. A revised, 2022 model MOU is available at https://www.mass.gov/doc/2022-school-resource-officer-memorandum-of-understanding/download. This model MOU may be customized to include guidance to schools and police departments about how to handle concurrent investigations of Title IX and potential criminal offenses (which likely involve law enforcement personnel in addition to an SRO). Alternatively, a new agreement between a school district and police department can be developed.
Recent OCR Sexual Harassment Compliance Review. As recently as this past October 2023, the OCR resolved a sexual harassment compliance review of the New London Public Schools in Connecticut with a broad resolution agreement.3 In doing so, the OCR concluded, among other things:
Notably, the district abdicated its Title IX responsibilities when it did not independently investigate allegations of sexual harassment of students by two employees while the matters were being investigated by the police and the Connecticut Department of Children and Families. These actions did not comport with the district’s obligation under Title IX to investigate whether sex discrimination occurred and, if so, to provide appropriate support to the victims and school community, and adopt measures to prevent recurrence . . .
Summary and Conclusion. In short, how to handle overlapping school, police and other agency investigations of alleged school-based sexual harassment is an important issue about which schools, students, parents/guardians, law enforcement and other relevant agencies should become familiar. Listed below is a summary of “do’s and don’ts” for school districts regarding their Title IX responsibilities in terms of such investigations.
DO determine whether to notify law enforcement and/or other authorities, if allegations of sexual harassment involve potential criminal conduct.
DO conduct a prompt and fair independent investigation and adjudication of claims of sexual harassment of a student or school employee, notwithstanding the existence of a concurrent law enforcement investigation of the same underlying factual allegations.
DO evaluate whether circumstances involving a concurrent law enforcement
investigation may constitute good cause for a temporary, short-term delay or extension of the school’s fact-finding time frames under the district’s sexual harassment policy.
DO promptly resume and complete your school’s fact-finding (if it has been paused) and comply with all other requirements of your Title IX grievance process, including rendering your decision, once your local police department notifies your district that it has completed its evidence-gathering.
DO enter into a written agreement with your local police about expectations, policies and protocols for handling overlapping investigations.
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DO NOT refer sexual harassment allegations to law enforcement for investigation (or require or advise complainants to do so), in lieu of fulfilling the school district’s legal obligation to conduct its own independent Title IX investigation.
DO NOT wait until the conclusion of a criminal investigation to conduct your own investigation.
DO NOT indefinitely suspend or allow a protracted delay of your district’s Title IX investigation while law enforcement is conducting a concurrent investigation.
DO NOT delay notifying complainants about their Title IX rights under the school’s sexual harassment policy or the school’s grievance process because of a concurrent police investigation.
DO NOT delay offering a complainant supportive measures, if appropriate, because of a concurrent police investigation.
Judy A. Levenson is a member of the Civil Rights & Social Justice Section Council and principal at the Law Office of Judy Levenson. She is an experienced attorney, investigator and trainer in the areas of schools and education law, civil rights, and municipal and ethics law. She is ATIXA-Certified to serve as a K-12 Title IX consultant/trainer, investigator, hearing officer and decision-maker. Levenson provides customized legal compliance training programs about Title IX and other civil rights and school law issues. Additionally, she conducts impartial, external investigations of complaints of Title IX violations, discrimination, bullying, and state ethics law violations. Levenson’s pragmatic approach is informed by her prior work in the Civil Rights Division of the Massachusetts Attorney General’s Office, as general counsel to the State Ethics Commission and as a partner with Brody, Hardoon, Perkins & Kesten LLP.
1. This might occur because “sexual harassment” under the 2020 Regulations is defined to include sexual assault, domestic violence, dating violence and stalking. Additionally, the Massachusetts mandatory child abuse reporting law requires school employees (and others) to report suspected child abuse and neglect to the Department of Children and Families. Further, hate crimes may be based on gender, gender identity or sexual orientation, in violation of school anti-discrimination policies and criminal laws.
2. While a preamble, unlike the Regulations, does not constitute binding law, courts, nonetheless, frequently defer to an administrative agency’s interpretation of the law it is responsible for enforcing.
3. Certain of the alleged incidents involved in this OCR review predated the 2020 Regulations.