Title IX Training 2/18-19/2025 

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Title IX Sexual Harassment Response 

Participants in sexual harassment policy process 
February 2025 (based on August 2020 regulation) 

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Evolving Regulations 

‚Ä¢ This training is based on August 
2020 sexual harassment 
regulations 
‚Ä¢ August 2024 regulations have 
been vacated and are no longer 
enforced by Department of 
Education 
‚Ä¢ Litigation continues . . . 
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Title IX Training 2/18-19/2025 

Agenda 

‚Ä¢ Title IX Scope & Jurisdiction 
‚Ä¢ Intake and Supportive Measures 
‚Ä¢ The Investigation 
‚Ä¢ The Hearing 
‚Ä¢ Informal Resolution and Other 
Processes 
‚Ä¢ Case Law Update 
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Title IX Scope & Jurisdiction 
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Title IX Training 2/18-19/2025 

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What is Title IX? 

‚Äú[N]o person in the United States 
shall on the basis of sex be 
excluded from participation in, 
be denied the benefits of, or be 
subjected to discrimination 
under any education program or 
activity receiving federal 
financial assistance.‚Äù 

34 C.F.R. ¬ß 106.31 

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To which entities does Title IX apply? 

Entities that receive federal financial assistance, 
including colleges and universities that participate in 

U.S. Dept. of Ed. Federal Student Aid funding 
‚Ä¢ Not individual persons 
‚Ä¢ But institutions are required to adopt policies 
and procedures to implement 
Title IX that do apply to individual persons 
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Title IX Training 2/18-19/2025 

Two Types of Sex Discrimination 

‚Ä¢ Adverse treatment that is motivated by the target‚Äôs sex and that 
directly limits or excludes the target from participation in education 
program or activities 
‚Ä¢ Usually by someone in a supervisory or authoritative position, or 
by institutional policy 
‚Ä¢ Sexual harassment involves 
‚Ä¢ Unwelcome conduct that is 
‚Ä¢ Either sexual in nature or sex based and 
‚Ä¢ Quid pro quo; hostile environment; sexual assault; or domestic 
violence, dating violence, stalking 
‚Ä¢ Sexual harassment is currently subject to more elaborate 
regulations governing investigation and determination 
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EXAMPLE: Adverse treatment 

Female supervisor prefers working with 
women and consistently gives a male 
subordinate poor performance reviews to 
drive him out of the department. 

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Title IX Training 2/18-19/2025 

EXAMPLE: Adverse treatment 

College consistently spends millions of 
dollars upgrading and maintaining all the 
male residence halls but spends almost 
no money on female residence halls, 
which are constantly in a state of 
disrepair. 

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EXAMPLE: Sexual harassment 

Student repeatedly makes unwelcome 
sexual comments and sexual jokes to 
another student in the same residence hall, 
propositions the other student to engage in 
sexual encounters despite repeatedly being 
told ‚Äúno,‚Äù and exposes themselves to the 
other student one night after returning from a 
party, drunk. 

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Title IX Training 2/18-19/2025 

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What is the scope of Title IX‚Äôs reach? 

‚Ä¢ Title IX applies to sex discrimination in 
the ‚Äúeducation program or activity‚Äù of a 
federal funding recipient 
‚Ä¢ Title IX defines ‚Äúeducation program or 
activity‚Äù to include the ‚Äúoperations‚Äù of 
educational institutions 
‚Ä¢ Title IX does not apply to private conduct 
occurring in private locations that are not 
part of education program/activity 
Sex 
Discrimination 
Education 
program /
activities 
‚Ä¢ ED: All 
U.S. 
operations 
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What are examples of education programs and activities? 

Admissions Financial Aid Athletics Housing 
Academics Employment 
Concerts, 
Performances, 
and Events on 
Campus 
Clinical 
Rotations and 
Placements 
Organized Trips 
and Volunteer 
Outings 
SponsoredOrganizationActivities 
Online Programs 
Activities in 
Property Ownedor Controlled bythe Institution 
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Title IX Training 2/18-19/2025 

Does Title IX apply to off-campus sexual harassment? 

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Yes, if the 
conduct at 
issue occurs in 
the context of 
an education 
program oractivity 
Yes, if the conduct 
at issue occurs in 
location owned /
controlled by theinstitution or 
officially-recognized 
student organization 
No, if it occurs 
in a privatelocation and is 
not part of aninstitution‚Äôs 
education 
program oractivity 
No, if it occurs 
outside the 
United States 
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EXAMPLE: Included in EP&A? 

Student alleges a sexual assault while 
attending an away game at another 
university. Student attended the away game 
with other students who were recruited by 
the athletic department to attend and who 
rode on a bus the athletic department paid 
for. An athletic department staffer rode on 
the bus and attended the game with the 
students. 

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Title IX Training 2/18-19/2025 

EXAMPLE: Included in EP&A? 

An alumnus returns to campus and attends 
a Greek alumni reception held at a sorority 
house located off campus. While at the 
reception, the alumnus is fondled by a drunk 
attendee who is a current student. 

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EXAMPLE: Included in EP&A? 

Student A goes to Student B‚Äôs apartment 
after drinking at the bar. Student A uses 
physical force to coerce Student B into 
sexual activity. Student B‚Äôs apartment is 
owned by a private corporation and is 
located across the street from campus. 
However, the apartment complex pays the 
university a license to use the university‚Äôs 
logo in its advertising, so some people 
mistakenly believe the complex is owned by 
the university. 

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Title IX Training 2/18-19/2025 

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What is sexual harassment? 

Conduct on the basis of sex that is: 
Quid 
pro quoharass-
ment 
Hostile 
environment 
harassment 
Sexual 
assault 
Datingviolence 
Domestic 
violence Stalking 
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What is quid pro quo? 

An employee of the institution 
conditions the provision of some 
aid, benefit, or service on another 
person‚Äôs participation in 
unwelcome sexual conduct 

‚Ä¢ Often arises in the 
employment context or where 
an employee holds a position 
of authority over a student 
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Title IX Training 2/18-19/2025 

EXAMPLE: Quid pro quo 

A graduate assistant supervises a Saturday 
lab session. The assistant is attracted to a 
particular undergraduate and offers to give 
the undergraduate an inflated grade if the 
undergraduate sends the assistant naked 
pictures. The undergraduate has no 
romantic interest in the assistant. But the 
undergraduate sends the pictures anyway 
fearing that she will receive a poor grade if 
she does not. 

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What is hostile environment? 

Unwelcome conduct determined by a reasonable 
person to be so severe, pervasive, and objectively 
offensive that it effectively denies a person equal 
access to the recipient‚Äôs education program or activity. 

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Title IX Training 2/18-19/2025 

EXAMPLE: Hostile environment 

Female student is repeatedly subject to 
derogatory sexual comments and ‚Äúcat calls‚Äù 
while working out in the recreation center. 
One day, while student is working out, 
someone soaps ‚Äúcall for a good time‚Äù on the 
female students‚Äô windshield and ties an 
inflated condom to her antenna. Student is 
now afraid to attend the center and buys a 
membership to a private gym. 

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What factors could suggest systematic discrimination? 

Repeated and pervasive conduct 
Reduction in academic or work performance 
Need to transfer class, work assignment, or otherdesignation 
The conduct prompts others to harass/discriminate 
Disruption in class or other operation 
Self-exclusion to avoid being subjected to the conduct 
Others???? 
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Title IX Training 2/18-19/2025 

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Does refusal to use chosen names and 
pronouns create a hostile environment? 

‚Ä¢ Federal law does not (presently) mandate the use of 
chosen (a/k/a ‚Äúpreferred‚Äù) names or pronouns for any 
student (cisgender, transgender, or otherwise) 
‚Ä¢ But the refusal to use chosen names and pronouns based 
on protected status and/or the use of non-chosen names 
and pronouns based on protected status may constitute 
discrimination or harassment based on the facts and the 
legal jurisdiction 
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The Title IX Religious Exemption 

‚Ä¢ Title IX ‚Äúdoes not apply to an educational institution which is 
controlled by a religious organization to the extent application of 
[Title IX] would not be consistent with the religious tenants of 
such organization.‚Äù 20 U.S.C. ¬ß 1681(a)(3) 
‚Ä¢ Religious organizations may pre-register an exemption with the 
Department of Education or simply assert an exemption as a 
defense to an OCR complaint or lawsuit 
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Title IX Training 2/18-19/2025 

What is sexual assault? 

Title IX regulations initially defined ‚Äúsexual assault‚Äù as incorporating 
the following classes of conduct from FBI‚Äôs NIBRS: 

Rape Sodomy Sexual assault 
with an object 
Fondling Incest 
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Updated NIBRS Classifications 

Rape Statutory Rape Fondling 
Incest 
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Title IX Training 2/18-19/2025 

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What is rape? (Revised NIBRS) 

Penetration, no matter how slight, of the vagina or anus with any 
body part or object, or oral penetration by a sex organ of another 
person, or by a sex-related object. This definition also includes 
instance in which the victim is incapable of giving consent 
because of temporary or permanent mental or physical 
incapacity (including due to the influence of drugs or alcohol) or 
because of age. Physical resistance is not required on the part 
of the victim to demonstrate lack of consent. 

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What is consent? 

‚Ä¢ Words or actions that a reasonable person in the respondent‚Äôs 
perspective would understand as agreement to engage in the 
sexual conduct at issue 
‚Ä¢ 

‚Ä¢ Consent cannot be procured by coercion 
‚Ä¢ Be aware of minimum age of consent 
A person who is incapacitated is not capable of giving consent 
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Title IX Training 2/18-19/2025 

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What is incapacity? 

Incapacity refers to a state where a person does not appreciate 
the nature or fact of sexual activity due to the effect of drugs or 
alcohol consumption, medical condition or disability, or due to a 
state of unconsciousness or sleep. 

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EXAMPLE: Incapacitated 

Student A and Student B have had several 
prior sexual encounters. One night, Student 
A provides Student B with drugs that, 
unknown to Student A, are laced with 
fentanyl. Student B takes the drugs 
voluntarily and then falls into a stupor and 
cannot speak coherently. Student A who 
has only smoked marijuana, then has sex 
with Student B. 

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Title IX Training 2/18-19/2025 

EXAMPLE: Not-incapacitated 

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Damon and Jeremy attend a football tailgate. 
Each have six beers over the course of three 
hours. Instead of going to the game, Damon and 
Jeremy decide to hookup at Damon‚Äôs on-campus 
apartment. Each separately drives from the 
tailgate without incident to Damon‚Äôs apartment 
where the two have sex and then fall asleep for a 
few hours. Later, Damon claims he was too drunk 
to consent. Multiple people from the tailgate recall 
having conversations with Damon and Jeremy 
about the game, who was likely to win, and 
renovations planned for the stadium. 

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What is statutory rape? (Revised NIBRS) 

Nonforcible sexual intercourse with a 
person who is under the statutory 
age of consent. 

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Title IX Training 2/18-19/2025 

EXAMPLE: Statutory rape 

State law sets a minimum age of consent 
at 17. The college hosts a summer 
basketball clinic. An 18-year-old attendee 
has sex with a 15-year-old attendee. The 
encounter happens in a dormitory room 
after curfew. The two attendees are from 
the same high school and had several 
sexual encounters before the clinic. 

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EXAMPLE: Fondling 

Student attends a party at an off-campus 
fraternity house. While dancing, student‚Äôs 
breasts and buttocks are groped by three 
other students who are acting on a dare. 

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Title IX Training 2/18-19/2025 

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What is domestic violence? 

Felony or misdemeanor crimes of violence committed by a current 
or former spouse or intimate partner of the victim, by a person with 
whom the victim shares a child in common, by a person who is 
cohabitating with or has cohabitated with the victim as a spouse or 
intimate partner, by a person similarly situated to a spouse of the 
victim under the domestic or family violence laws of the state, or by 
any other person against an adult or youth victim who is protected 
from that person‚Äôs acts under the domestic or family violence laws 
of the state. 

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What is dating violence? 

‚ÄúDating Violence‚Äù is violence committed by a person: 

‚Ä¢ Who is or has been in a social relationship of a 
romantic or intimate nature with the victim; and 
‚Ä¢ Where the existence of such a relationship will 
be determined based on consideration of the 
following factors: 
‚Ä¢ The length of the relationship; 
‚Ä¢ The type of relationship; and 
‚Ä¢ The frequency of interaction between the 
persons involved in the relationship. 
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Title IX Training 2/18-19/2025 

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EXAMPLE: Dating violence 

Kace and Jamie have hooked up, 
occasionally spend the night at each 
other‚Äôs apartments, and text each 
other frequently. One night, during an 
argument, Jamie throws Kace‚Äôs phone 
at Kace. The phone misses Kace but 
hits the wall and is destroyed. 

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What is stalking? 

Engaging in a course of conduct 
directed at a specific person 
that would cause a reasonable 
person to: 

‚Ä¢ Fear for their safety or the 
safety of others; or 
‚Ä¢ Suffer substantial 
emotional distress. 
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Title IX Training 2/18-19/2025 

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EXAMPLE: Stalking 

Alfie and Hana broke up after Alfie took an 
interest in Mira. Hana sends Alfie dozens of 
text messages each day begging Alfie to 
dump Mira and return to Hana. In the 
messages, Hana uses expletives and 
threatens to kill Mira. One night, while Alfie 
and Mira are having dinner at a sports bar, 
Hana loudly confronts Alfie and Mira and 
throws a drink in Alfie‚Äôs face. 

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Does Title IX also prohibit retaliation? 

Yes ‚Äì Title IX prohibits intimidation, threats, coercion, or 
discrimination against any individual for the purpose of interfering 
with any right or privilege secured by Title IX and its implementing 
regulations or because an individual has made a report or 
complaint, testified, assisted, participated in or refused to 
participate in any manner in an investigation, proceeding, or 
hearing under the institution‚Äôs policy. 

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Title IX Training 2/18-19/2025 

EXAMPLE: Retaliation 

Jane files a Title IX sexual harassment 
complaint against a coworker, accusing him of 
unwelcome sexual propositioning. The 
investigation finds some evidence to support 
Jane‚Äôs complaint, but a hearing panel 
ultimately finds the coworker‚Äôs conduct did not 
rise to the level of harassment. Annoyed at 
the distraction Jane‚Äôs complaint has caused 
for the department, Jane‚Äôs supervisor looks for 
a reason to terminate Jane and eventually 
fires her when she shows up to work 10 
minutes late. 

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Jasper and Kris are members of College‚Äôs mock trial club and are 
partners for an upcoming competition at Big City University. The

Group Scenario 

club is student-run and has no advisor. Students arrange and 
pay for their own travel to competitions. College covers only the 
entrance fee. 

During one on-campus practice with the whole team present, 
Jasper tells a raunchy sexual joke that Kris finds offensive. 
Once, while Jasper and Kris are practicing on their own at Kris‚Äôs 
off-campus apartment, Jasper comments ‚ÄúIf we didn‚Äôt have to 
practice, I‚Äôd like to f*** you right now.‚Äù 

The day before the competition, Jasper and Kris drive to Big City 
in Kris‚Äôs car. Jasper and Kris each have their own hotel room 
that each independently paid for. Kris comes to Jasper‚Äôs room 
for a final run-through. In the hotel room, Jasper repeatedly 
comments on Kris‚Äôs appearance and eventually places their hand 
on Kris‚Äôs crotch. Kris slaps Jasper and leaves the room. 

The next morning, Jasper wakes up to find that Kris has left the 
hotel and returned to College. Without a partner, Jasper is forced 
to withdraw and take a ride-share back to College. Kris 
eventually files a Title IX complaint against Jasper. 

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Title IX Training 2/18-19/2025 

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Questions 
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Intake and Supportive Measures 
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Title IX Training 2/18-19/2025 

What is the grievance process? 

Live hearingbefore a decision-
maker who finds 
facts under an 
evidentiarystandard and 
determines the 
existence (or not) 
of a policy violation 
and any resultingsanctions /
remediation 

Report, Intake,
and SupportiveMeasures 
Formal 
Complaint(Complainant‚Äôsor, sometimes, 
institutional 
option) 
Investigation tocollect relevant 
inculpatory andexculpatoryevidence 
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Appeal 
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Who are the key institutional actors in the grievance 
process? 

Title IX Coordinator Investigator Hearing Chair /
Panel 
Appellate Officer 
Informal Resolution 
Coordinator 
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Title IX Training 2/18-19/2025 

What general principles govern the grievance 
process? 

‚Ä¢ Significant deference to the complainant‚Äôs wishes 
about whether to proceed 
‚Ä¢ Equitable treatment of complainants and 
respondents 
‚Ä¢ Presumption respondent did not violate policy 
unless and until a determination is made after 
hearing 
‚Ä¢ No stereotypes based on a party‚Äôs status as 
complainant or respondent 
‚Ä¢ Conflict and bias-free institutional participants 
‚Ä¢ Trauma-informed 
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Who is responsible for identifying conflicts of 
interest and bias? 
Title IX Coordinator or designee oversees 
grievance process and must address known orreported conflicts of interest/bias 
Institution must also permit parties to raiseconcerns of conflicts of interest and bias 
*Individual institutional actors should self-policeconflicts of interest and self-identify bias 
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Title IX Training 2/18-19/2025 

What is a conflict of interest? 
When an individual has a material connection to a dispute, or the parties 
involved, such that a reasonable person would question the individual‚Äôs 
ability to be impartial 
May be based on prior or existing relationships, professional interest, 
financial interest, prior involvement, and/or nature of position 
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EXAMPLE: Conflict of interest 

Institution‚Äôs Title IX Coordinator is also an 
unpaid assistant coach for the basketball 
team. Student reports to the Title IX 
Coordinator that they were sexually 
assaulted by a member of the basketball 
team who Title IX Coordinator has directly 
interacted with, as assistant coach, for the 
last two seasons. 

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Title IX Training 2/18-19/2025 

How does an institution get notice of sexualharassment? 

Sexual harassment response 
is triggered when institution 
has ‚Äúactual knowledge‚Äù of 
potential sexual harassment. 

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What is ‚Äúactual knowledge‚Äù? 

‚ÄúActual knowledge‚Äù occurs when 

‚Ä¢ An institutional official, with authority to take corrective action 
‚Ä¢ Observes or receives a report 
‚Ä¢ Of sexual harassment occurring in the institution‚Äôs education 
programs and activities 
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Title IX Training 2/18-19/2025 

EXAMPLE: Institutional knowledge 

Faculty member serves as academic 
advisor to Student A. During academic 
advising session, Student A discloses 
that their grades have suffered because 
they missed classes due to being 
sexually assaulted by a peer. Faculty 
member has no authority to investigate 
or discipline under the institution‚Äôs 
Title IX policy. Is the faculty member‚Äôs 

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knowledge imputed to the institution? 

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When do we reach out to the alleged victim? 

‚Ä¢ After institution has actual 
knowledge of alleged sexual 
harassment, Title IX 
Coordinator must contact 
alleged victim 
‚Ä¢ Provide information about 
supportive measures, explain 
the grievance process and 
how to file a formal 
complaint, and discuss the 
alleged victim‚Äôs wishes 
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Title IX Training 2/18-19/2025 

Sherman v. The Regentsof Univ. of Cal. (N.D. Cal.
2022) 
In allowing claim of Title IX deliberate 
indifference to proceed, court noted the 
allegation that over four months 
passed between the former graduate 
student plaintiff‚Äôs initial email to the 
dean about the professor respondent‚Äôs 
conduct and U.C. Santa Cruz placing 
him on leave pending an investigation. 
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What if we can‚Äôt identify the alleged victim from 
a report? 

‚Ä¢ Title IX Coordinator should oversee preliminary investigation to 
determine identity of alleged victim 
‚Ä¢ If identity of alleged victim cannot be discerned after reasonable 
inquiry, matter should be documented and consideration given 
as to whether other policies (such as student code of conduct) 
are utilized 
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Do we need a ‚Äúformal complaint‚Äù before contacting 
the alleged victim? 

‚Ä¢ No. Not in order to contact the alleged victim and begin support 
services 
‚Ä¢ The formal complaint is a specific written document that is 
required (for now) to commence the investigation and hearing 
process 
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What are supportive measures? 

‚Ä¢ Non-disciplinary, non-punitive supports and accommodations 
designed to preserve access to education programs and activities 
‚Ä¢ Reasonably available without fee or charge 
‚Ä¢ Without unreasonably burdening the other party 
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Examples of supportive measures 

Counseling 
Academic accommodations 
Housing accommodations 
Security escorts 
Leave of absence 
Increased security or monitoring 
Modified work schedules 

Mutual no-contact order where implicated by facts 

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EXAMPLE: Reasonable supportive measure 

Employee is the victim of domestic 
violence perpetrated by their spouse in 
the college‚Äôs parking lot. Employee 
requests time off from work for one 
hour every Thursday for six weeks to 
attend counseling sessions. 

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EXAMPLE: Reasonable supportive measure? 

Student reports they were sexually 
assaulted by a peer 18 months 
ago. Student requests a refund of 
tuition for the last three semesters 
and a change of all grades to 
‚ÄúPass.‚Äù 

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Do students and employees have other rights toaccommodation? 

Yes‚Äîother laws may trigger accommodations when a medical 
condition or disability is present. E.g.: 

‚Ä¢ Americans with Disabilities Act 
‚Ä¢ Family and Medical Leave Act 
‚Ä¢ Section 504 of the Rehabilitation Act 
‚Ä¢ Title IX pregnancy accommodation provisions 
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EXAMPLE: Disability 

Student is sexually assaulted by a 
peer and is later diagnosed with 
PTSD and major depressive disorder 
triggered in part by the sexual 
assault. 

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What if the report falls outside Title IX jurisdiction? 

‚Ä¢ Title IX requires supportive 
measures for reported sexual 
harassment covered by Title IX 
‚Ä¢ Institute may provide supportive 
measures for reported conduct that 
falls outside Title IX‚Äôs scope 
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Are supportive measures confidential? 

‚Ä¢ Generally, yes 
‚Ä¢ Only shared to the extent necessary 
to effectuate the purpose of the 
supportive measure 
‚Ä¢ Only shared with institutional 
employees who have a legitimate 
need to know 
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EXAMPLE: Confidentiality 

Title IX Coordinator receives a call from a 
woman who claims to be the mother of 
Student A who reported being a victim of 
sexual assault. Woman demands to know 
‚ÄúWhat are you doing for my daughter?‚Äù and 
specifically ‚ÄúAre you providing my daughter 
with counseling?‚Äù 

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Title IX Training 2/18-19/2025 

Who is responsible for supportive measures? 

‚Ä¢ Title IX Coordinator is responsible for ‚Äúcoordinating the 
effective implementation‚Äù 
‚Ä¢ May be delegated with appropriate oversight 
‚Ä¢ Typically, a collaborative effort involving more than one 
institutional office or department 
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Can we utilize interim removals or suspensions 
for students? 

Students may be removed on emergency 

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basis if: 

‚Ä¢ Individualized safety and risk analysis 
‚Ä¢ Determines an immediate threat to 
physical health or safety of any 
student or other individual arising from 
the alleged sexual harassment justifies 
removal 
‚Ä¢ Student is given immediate notice and 
opportunity to contest the removal 

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Title IX Training 2/18-19/2025 

EXAMPLE: Immediate threat 

Student A reports that Student B raped 
Student A after providing Student A 
with a drink laced with drugs. The 
alleged incident occurred last night, 
and Student A is covered in bruises. 
Student C, an acquaintance of Student 
A, reports that they were drugged by 
Student B two weeks ago, although a 
friend walked in and prevented Student 
B from effectuating a sexual assault. 

¬© 2025 Husch Blackwell LLP 

Can we utilize an already existing process for 
interim removals? 

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‚Ä¢ Yes, if that process complies 
with the Title IX standard. 
‚Ä¢ Common institutional 
examples include: 
‚Ä¢ Threat assessment policy 
‚Ä¢ Critical Incident Response 
Team (‚ÄúCIRT‚Äù) 
‚Ä¢ Interim suspension 
provisions of Student 
Handbook 

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What does it mean to be ‚Äútrauma informed‚Äù? 

‚Ä¢ Title IX regulations do not define the term 
‚Ä¢ There is no standard or commonly accepted definition 
‚Ä¢ In practice, it means: 
‚Ä¢ Prompt provision of supportive measures such as counseling 
to address the immediate and ongoing effects of trauma 
‚Ä¢ Understanding the neurobiology of trauma and its impact on a 
victim‚Äôs neurobiological functioning 
‚Ä¢ Adopting investigation and hearing techniques that minimize 
the risk of exacerbating trauma while still being fair and 
impartial 
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How do we approach trauma in a Title IX case? 

Balance 
‚ÄúTrauma-informed investigation techniques that bleed over into ‚Ä¶ 
bias detract from the fundamental tenets of fairness and impartiality 
that are [key to] disciplinary proceedings.‚Äù 
-Candace Jackson, Acting Asst. Secretary of ED (2017) 

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What is the definition of trauma? 

Merriam-Webster: A very difficult or unpleasant experience that 
causes someone to have mental or emotional problems usuallyfor a long time 
English Oxford: Deeply distressing or disturbing experience 
Wikipedia: Is a type of damage to the psyche that occurs as a 
result of a severely distressing event. Trauma is often the result 
of an overwhelming amount of stress that exceeds one's ability 
to cope, or integrate the emotions involved with that experience 
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What is a neurobiological effect? 

‚Ä¢ Experiencing trauma can affect the 
brain itself by altering chemical 
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processes and brain functioning 

‚Ä¢ These alterations can affect how a 
person processes information, what 
they remember, and how they relay 
information 
‚Ä¢ Ignorance of the neurobiological affect 
of trauma can lead to misconceptions 
about how victims of sexual violence 
‚Äúact‚Äù or ‚Äúshould‚Äù act 

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EXAMPLE: Trauma effect 

Complainant gives hyper-specific 
description of the scent of 
deodorant the perpetrator was 
wearing but cannot initially recall 
whether perpetrator forced oral sex 
before intercourse, or vice versa. 

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EXAMPLE: Trauma effect 

During interview, complainant comments 
that they were ‚Äúso stupid‚Äù to follow 
perpetrator to their apartment, observes 
that ‚ÄúI should have said ‚Äòno‚Äô and left as 
soon as they offered me that drink,‚Äù and 
‚Äúmy parents are going to kill me when 
they find out I put myself in this position.‚Äù 

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Possible Effects On Recall 

‚Ä¢ People who have 
suffered trauma 
may experience 
any or a mix of: 
Flashbacks 
Delayed recollection 
Inability to concentrate 
Non-linear recollection 
Self-blame 

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Trauma & Credibility 

‚Ä¢ Avoid making assumptions based on the way an individual 
delivers information 
‚Ä¢ Understand memory may be clarified in time 
‚Ä¢ Address inconsistencies 
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Can we place employees on administrative leave? 

‚Ä¢ Yes ‚Äì employee respondents may be placed on administrative 
leave without requisite showing of threat to physical health or 
safety 
‚Ä¢ Whether an opportunity to challenge administrative leave must 
be given depends on employee status and other policies (e.g., 
Faculty Handbook) 
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EXAMPLE: Administrative leave 

Maintenance worker is accused of lingering 
near the restroom and glancing at students 
in various stages of undress. Maintenance 
worker was accused of similar behavior five 
years prior. Maintenance worker is not 
accused of physical violence. Institution 
places worker on administrative leave 
pending results of the investigation. 

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Sage reports to the Title IX Coordinator that their roommate 
Blair came home after a party, looking disheveled and 

Group Scenario 

crying. Sage reports that Blair has not left their apartment 
and speculates that Blair may have been sexually 
assaulted. Sage discloses that Blair has made ‚Äúsuicidal 
comments‚Äù in the past. 

Title IX Coordinator secures a meeting with Blair, but Blair is 
guarded and asks questions about confidentiality. Reluctant 
to share details, Blair discloses only that something 
‚Äúhorrible‚Äù happened with ‚ÄúSawyer.‚Äù Blair comments, ‚ÄúI can‚Äôt 
believe I put myself in this situation.‚Äù Title IX Coordinator 
encourages Blair to seek counseling. 

After the meeting, the Title IX Coordinator confirms that 
another student recently made a sexual assault report about 
Sawyer Jones. That student is still deciding whether to 
make a formal complaint. Registrar confirms there is only 
one student at the College with the first name ‚ÄúSawyer.‚Äù 

A day later, Sage calls and reports that Blair has started 
cutting their arms. 

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What is the purpose of Title IX investigation? 

‚Ä¢ For the institution 
‚Ä¢ To collect relevant inculpatory 
and exculpatory evidence 
‚Ä¢ Sufficient to permit an 
impartial decision-maker to 
determine through a live 
hearing 
‚Ä¢ Whether or not the reported 
sexual harassment occurred 
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What are the general principles of an 
investigation? 

‚Ä¢ Parties must have sufficient notice to prepare and meaningfully 
participate 
‚Ä¢ Parties have an equal opportunity to present their statements, 
evidence, and to identify witnesses 
‚Ä¢ Investigator has an independent duty to collect relevant 
inculpatory and exculpatory evidence 
‚Ä¢ Parties have equal opportunity to review and comment on 
evidence developed 
‚Ä¢ Investigation is evidence-gathering; not fact-finding 
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What is a formal complaint? 

‚Ä¢ Signed writing 
‚Ä¢ From the alleged victim or the Title IX Coordinator; 
‚Ä¢ Alleging sexual harassment; 
‚Ä¢ Indicating desire to initiate the grievance process (i.e., 
investigation and hearing). 
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When must we dismiss a Title IX complaint? 

‚Ä¢ Alleged sexual harassment occurred 
outside education programs or activities 
‚Ä¢ Alleged misconduct could not be sexual 
harassment even if true 
‚Ä¢ Complainant is not a current participant 
in education programs and activities at 
time of complaint 
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EXAMPLE: Dismissal 

Student reports that faculty member 
teaching poetry class required 
student to read classic Roman 
poetry that included graphic sexual 
elements. Student is offended by 
the content and ‚Äúfeels harassed.‚Äù 
Student demands that the institution 
force the faculty member to alter the 
content of the course. 

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When may we dismiss a Title IX complaint? 

‚Ä¢ Complainant withdraws 
allegations in writing 
‚Ä¢ Respondent is no longer 
employed or is no longer a 
student 
‚Ä¢ Specific circumstances 
prevent the institution from 
gathering evidence sufficient 
to reach a determination 
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EXAMPLE: Dismissal 

After student files a verbal harassment 
complaint against assistant coach, 
assistant coach resigns and takes a job 
at another institution. Institution codes 
the former assistant coach as a ‚Äúno 
rehire‚Äù in its system and dismisses the 
complaint. 

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EXAMPLE: Participating at time of alleged 
misconduct update 

A former student complains of domestic 
violence committed by an employee when 
the former student was enrolled and also 
working full time at the institution. The 
former student has moved away. Former 
student has no desire to be involved with 
the institution in any way going forward 
because they had such a negative 
experience in the past. 

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How do we tell the parties about an investigation? 

‚Ä¢ Institution must provide the 
parties written notice of a 
formal complaint that includes 
sufficient details about the 
‚Äúwho, what, when, where, and 
how‚Äù before investigating 
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What else does the notice need to say? 

Written notice must also include: 

‚Ä¢ Statement of presumption respondent is not responsible 
unless and until a determination is made at the end of the 
process 
‚Ä¢ That parties have the right to an advisor of their choice 
‚Ä¢ That parties have the right to inspect and review evidence 
‚Ä¢ Any prohibition on providing knowingly false statements or 
information 
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EXAMPLE: Inadequate notice 

Title IX Coordinator sends notice of 
investigation to Respondent stating, 
‚Äúyou have been accused of committing 
stalking against Jane Doe in February 
2022.‚Äù 

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Can we gather any information prior to the 
written notice? 

‚Ä¢ Yes, but only to the extent necessary to determine how the case 
will proceed 
‚Ä¢ Typically, this ‚Äúpreliminary inquiry‚Äù would involve identifying the 
putative victim and understanding the scope of the allegations 
‚Ä¢ Information gathering that seeks to determine whether the 
allegations are true is investigatory and should await the written 
notice 
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EXAMPLE: Preliminary inquiry 

Complainant alleges they were fondled by 
an unknown individual in the library late at 
night. Title IX Coordinator secures video 
footage and card swipe data to determine 
the identity of the alleged perpetrator. 

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How do we collect evidence in an investigation? 

Interviews of parties and 
witnesses 

Collection of 
non-testimonial evidence 

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Who do we interview? 

‚Ä¢ Parties 
‚Ä¢ Fact witnesses 
‚Ä¢ Maybe character witnesses 
‚Ä¢ Maybe experts 
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What‚Äôs the difference between a fact witness 
and a character witness? 

‚Ä¢A fact witness has personal ‚Ä¢A character witness does 
knowledge about specific not possess knowledge of 
facts that are relevant to specific, relevant facts but 
determining whether or not a instead speaks to a person‚Äôs 
given act of sexual general character traits or 
harassment occurred. their general disposition. 
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EXAMPLE: Fact witness 

Jack has accused Jill of sexually 
assaulting Jack when Jack was 
incapacitated. Student witness saw 
Jack and Jill at a party, shortly before 
the assault, and observed that Jack 
could not stand and had to be helped 
by Jill to a waiting rideshare. 

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EXAMPLE: Character witness 

Jane has been Jill‚Äôs friend since high 
school. Jane was out of town the night of 
the alleged sexual assault. But Jane will 
testify that Jill is a kind person who would 
never hurt or take advantage of anyone. 

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How do you structure an interview? 

Rapport building/information providing phase 
Substantive testimony collection 
Closure/information providing phase 
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How do I ask questions in the substantive phase? 

‚Ä¢ Open-ended and non-suggestive invitations 
‚Ä¢ Use facilitator words to keep the narrative flowing 
‚Ä¢ Use cued-invitations to expand particular topics 
‚Ä¢ Delay use of specific questions (‚Äúrecognition prompts‚Äù) 
as long as possible 
‚Ä¢ Avoid recognition prompt questions until later (if at all) 
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Examples of open invitations 

‚ÄúPlease tell me what happened that night.‚Äù 
‚ÄúCan you walk me through what happened?‚Äù 
‚ÄúIn your own words, tell me what occurred.‚Äù 
‚ÄúCan you tell me everything that happened from that point forward?‚Äù 
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Examples offacilitators 

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Facilitators 
‚ÄúOk‚Äù 
‚ÄúYes‚Äù 
‚ÄúGo on . . .‚Äù 
‚ÄúI follow 
you . . .‚Äù 
‚ÄúOkay . . .‚Äù 
‚ÄúUh-huh‚Äù 
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Examples of cued invitations 

‚ÄúYou mentioned that . . . . Can you 
tell me more?‚Äù 
‚ÄúYou said that . . . . Can you 
elaborate?‚Äù 
‚ÄúYou said they ‚Äòcoerced‚Äô you. Can 
you tell me specifically what theydid?‚Äù 
‚ÄúIf I understood you right, you said 
that after . . . . Can you tell me whathappened in between?‚Äù 
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Examples of recognition prompts 

‚ÄúWhat did she say?‚Äù (directive) 
‚ÄúWhat day did that happen?‚Äù (directive) 
‚ÄúDid it hurt?‚Äù (option choosing) 
‚ÄúWas he slurring words?‚Äù (option choosing) 

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How do we make a record of the interview? 

‚Ä¢ Trend towards audio 
recording 
‚Ä¢ Extensive note taking 
followed by preparation of 
a summary is permissible 
‚Ä¢ Video recording is 
disfavored 
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Example sources of non-testimonial evidence 

109 

The parties 
The witnesses 
Institutional email 
Video cameras 
Key card logs 
Timesheets 
Public social media 
Institution-owned computers 
Institution-owned personal devices 
Information on institutional servers 
Police 
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May an investigation collect evidence on 
sexual history? 

Generally, no ‚Äì Evidence of a complainant‚Äôs prior sexual 
behavior is relevant only if offered to prove that someone 
other than the respondent committed the conduct, or if 
evidence of specific incidents of the complainant‚Äôs prior 
sexual behavior with the respondent are offered to prove 
consent 

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EXAMPLE: Prohibited 

Cade accuses Simon of forced oral 
sex. Simon claims that Cade is 
experienced at oral sex and urges 
the investigator to ask Cade how 
many times Cade has willingly 
performed oral sex on others in the 
past. 

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May an investigation collect and rely on 
privileged records? 

‚Ä¢ Only if a party waives the privilege 
‚Ä¢ An institution may not access information under a 
legally recognized privilege unless the holder of the 
privilege waives it 
‚Ä¢ Institution cannot unilaterally access its own 
counseling and health files for investigation purposes 
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EXAMPLE: Permissible collection 

Complainant executes a written release 
allowing Title IX investigator to obtain a 
copy of notes from Complainant‚Äôs 
counseling session where Complainant 
reported alleged rape to counselor the 
day after it‚Äôs occurrence. 

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Do the parties have access to the evidence? 

‚Ä¢ Parties must be given access to all 
inculpatory and exculpatory evidence
directly related to the allegations(regardless of whether the institutionintends to rely on it) at least 10 daysbefore the investigation report isfinalized 

‚Ä¢ Evidence must be provided to a party 
and their advisor in physical copy orelectronically 

‚Ä¢ Any earlier access to the evidence 
must be provided equally 
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What exactly has to be shared? 

‚Ä¢ Anything that has ‚Äúevidentiary‚Äù value 
‚Ä¢ That is, the information is potentially inculpatory or 
exculpatory in light of the allegations at issue; or is 
otherwise potentially relevant 
‚Ä¢ E.g., witness statements; interview transcripts; text 
messages; social media posts; photographs; etc. 
‚Ä¢ Logistical communications; calendar invites; support 
measure communications generally are not shared 
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Is the evidence ‚Äúconfidential?‚Äù 

‚Ä¢ Institution may require parties 
and advisors to agree not to 
disclose investigation evidence 
to third-parties 
‚Ä¢ But cannot prohibit parties from 
speaking about the allegations 
themselves 
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Do the parties get to respond to the evidence? 

‚Ä¢ Yes ‚Äì after they review the evidence 
provided at least 10 days prior to 
issuance of the investigation report, 
parties can provide written responses 
‚Ä¢ Depending on written responses, 
additional investigation may be needed 
‚Ä¢ Investigator should consider the written 
responses in drafting final language of 
investigation report 

¬© 2025 Husch Blackwell LLP 

How is the investigation concluded? 

‚Ä¢ Issuance of a written investigation report 
‚Ä¢ Must fairly summarize the evidence collected, 
including both inculpatory and exculpatory evidence 
‚Ä¢ Must be provided to each party and their advisor at 
least 10 days prior to any hearing 
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Does the investigation report make findings? 

‚Ä¢ No ‚Äì currently the investigation report fairly summarizes 
the relevant inculpatory and exculpatory evidence 
collected during the investigation 
‚Ä¢ Under the current Title IX regulations, factual findings 
and determinations of policy violations are made by a 
decision-maker at a subsequent hearing 
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May parties have an advisor during the 
investigation? 

119 

‚Ä¢ Yes ‚Äì parties may be accompanied to 
any investigative interviews and 
meetings by an advisor of their choice 
‚Ä¢ Advisor may be an attorney, but does 
not have to be 
‚Ä¢ Institution may confine advisor to a 
passive role during the investigation 
phase 
‚Ä¢ Institution is not required to provide an 
advisor during the investigation phase 

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EXAMPLE: Advisor conduct 

The institution sends a written notice 
of investigation to Respondent 
requesting an interview. 
Respondent‚Äôs attorney claims he is in 
trial for the next eight weeks and 
cannot be available to accompany 
Respondent until after trial is 
complete. 

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EXAMPLE: Advisors 

Complainant is accompanied to interview 
by a family member who repeatedly 
interrupts the questioning, attempts to 
answer for the complainant, shouts at the 
investigator, and demands ‚Äúanswers‚Äù to 
certain questions, ‚Äúbefore we go any 
further.‚Äù 

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Lacrosse player makes formal complaint accusing coach of 
repeated sexual joking and commenting on players‚Äô sex lives. 

Group Scenario 

Player alleges coach has created a hostile environment for the 

entire team. Player notifies other team members of the complaint. 
Title IX Coordinator notifies coach of the complaint and 
investigation. Within twenty-four hours, Title IX Coordinator begins 
to receive emails from players and parents supporting coach and 
accusing player of being disgruntled due to a lack of playing time. 

Coach hires an attorney as advisor, who notifies Title IX 
Coordinator that coach intends to sue player for defamation. At 
coach‚Äôs interview, attorney provides the investigator with a stack of 
affidavits, signed by 2/3 of the players, denying that coach created 
a hostile environment. 

Investigator sends an email to all team members requesting that 
players individually contact investigator to schedule an interview. 
Only one team member, complainant‚Äôs roommate, responds. This 
witness corroborates the complainant‚Äôs account. 

Complainant and witness receive no playing time at the next three 
games. Each makes a complaint of retaliation. Coach‚Äôs attorney 
sends complainant and witness a cease-and-desist letter, accusing 
them of defamation. Coach‚Äôs attorney demands that investigation 
be suspended and threatens suit against the institution. 

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The Hearing 
125 

What is the purpose of the hearing? 

‚Ä¢ To hear testimony and receive non-testimonial evidence so 
that 
‚Ä¢ The decision-maker can determine facts under a standard 
of evidence 
‚Ä¢ Apply those facts to the policy, and 
‚Ä¢ Issue a written determination resolving the formal complaint 
and imposing discipline/remedial measures as necessary 
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Who is the ‚Äúdecision-maker‚Äù? 
‚Ä¢ A single hearing officer; 
‚Ä¢ A hearing panel led by a chair 
127 

What standard of evidence can be used? 

‚Ä¢ Either 
‚Ä¢ Preponderance of the evidence OR 
‚Ä¢ Clear and convincing evidence 
‚Ä¢ Institution must select a standard and apply it uniformly 
in all cases, regardless of the identity of the respondent 
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What happens before the hearing? 

‚Ä¢ Parties are provided the final investigation report at 
least 10 days prior to the hearing 
‚Ä¢ ‚ÄúDecision-maker‚Äù must be identified and clear conflicts 
of interest assessment 
‚Ä¢ Hearing must be scheduled and logistics arranged 
‚Ä¢ Witnesses must be notified 
‚Ä¢ Pre-hearing conference should be held 
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At least 10 daysto review the 
evidence 
Issuance of 
InvestigationReport 
At least 10 daysbefore hearing 
Select Decision 
Maker 
SchedulingHearing andArrangeLogistics 
NotifyWitnesses 
Pre-HearingConference 
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How do we schedule a hearing? 

‚Ä¢ Set aside sufficient time considering the 
nature and complexity of the case 
‚Ä¢ Consider class and work schedules of 
parties and key witnesses to avoid 
conflicts 
‚Ä¢ Consider pre-scheduling a backup or 
‚Äúspill over‚Äù date in the event the hearing 
runs long or must be continued 
‚Ä¢ Provide letters excusing parties and 
witnesses from other obligations, as 
necessary 
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How do we notify parties and witnesses? 

‚Ä¢ Institution must provide written notice to the parties of time and 
place of hearing 
‚Ä¢ Institution should provide written notice to witnesses requesting 
their presence 
‚Ä¢ Notice may be issued by the decision-maker or another 
institutional official in coordination with decision-maker 
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What is a pre-hearing conference? 

A meeting with the parties, decision-maker, 
and other necessary officials to: 

‚Ä¢ Address logistical issues and 
concerns 
‚Ä¢ Discuss the sequence of the hearing 
and rules of decorum 
‚Ä¢ Hear and resolve objections or 
concerns that can be addressed in 
advance 
‚Ä¢ Take up other issues that will ensure 
hearing time is focused on testimony 
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What are some key elements of a hearing? 

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‚Ä¢ Live testimony from witnesses 
‚Ä¢ Contemporaneous questions from the 
decision-maker and cross-examination from 
the advisor for the other party 
‚Ä¢ Decision-maker must screen all questions 
for relevance and intrusion into prohibited 
sexual history 
‚Ä¢ Hearing must be recorded or transcribed 
‚Ä¢ Steps to separate parties, if requested 
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What about the ‚Äúexclusionary‚Äù rule? 

‚Ä¢ Exclusionary rule contained in 2020 regulation is no 
longer enforceable. 
‚Ä¢ Decision-maker may consider all statements, even if 
witness is not subject to cross-examination 
‚Ä¢ Decision-maker may consider the absence of cross-
examination in assigning weight and credibility 
‚Ä¢ Note: Certain public institutions in certain jurisdictions 
may be required to enforce exclusionary rule as a 
matter of procedural due process. 
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What is a potential sequence? 

Statement and 
questioning ofcomplainant 
Statement and 
questioning ofrespondent 
Questioning ofwitnesses 
Closing statementby complainant 
Closing statementby respondent 
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Who determines relevance? 

‚Ä¢ Decision-maker(s) must screen 
questions for relevance and 
resolve relevance objections 
‚Ä¢ Decision-maker(s) must explain 
any decision to exclude a 
question as not-relevant 
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EXAMPLE: Relevant 

Student A has accused Student B of 
sexual assault. Student B‚Äôs advisor 
wants to question Student A about text 
messages Student A sent Student B 
shortly after the alleged assault, 
including a text message where 
Student A wrote: ‚ÄúTonight was great. 
Let‚Äôs get together this weekend.‚Äù 

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EXAMPLE: Not relevant 

Student A accuses Student B of sexual 
assault. Advisor for Student A wants to 
question Student B regarding whether 
Student B made racially harassing 
remarks to a different student on a 
different occasion than the alleged 
assault. 

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Is an advisor required to ask questions a party 
wants asked? 

‚Ä¢ Advisors should consult with their party and consider their 
preferences for what questions to ask 
‚Ä¢ But an advisor must exercise their own reasonable judgment 
and is never required to ask questions that the advisor knows 
are improper (e.g., invade sexual history) 
‚Ä¢ An advisor may consult the decision-maker if a party demands 
the advisor ask a question that advisor is uncertain is 
appropriate 
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Can we have standards of decorum for hearings? 

‚Ä¢ Yes, strongly recommended 
‚Ä¢ But standards must be 
applied equally/equitably to 
both parties 
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EXAMPLE: Rules of decorum 

Institution conducts all Title IX hearings 
virtually using interactive software. 
Institution‚Äôs rules require a party or 
advisor who wishes to speak to use the 
hand raise function and be called upon 
before speaking. 

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Are there ‚Äúobjections‚Äù at hearings? 

‚Ä¢ Minimally, the institution must allow a party to raise an 
objection that evidence is not relevant or should be 
specifically excluded (e.g., sexual history; confidential 
privilege) 
‚Ä¢ Institution may permit other objections to be raised 
‚Ä¢ Institution may limit the right of objection to a party 
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144 

Can we delay or ‚Äúcontinue‚Äù a hearing once it starts? 

‚Ä¢ Yes, but only if a delay is not clearly 
unreasonable 
‚Ä¢ Consider pre-scheduling an 
alternative date 
‚Ä¢ Inconvenience alone should not be 
the determinative factor; every date 
will inconvenience someone 
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Title IX Training 2/18-19/2025 

How do(es) the decision-maker(s) decide a case? 

After hearing, decision-maker(s) must deliberate andconsider all the admissible testimony and admissible 
non-testimonial evidence 
Evaluate evidence for weight and credibility 
Resolve disputed issues of fact under the standard of 
evidence adopted by the institution 
Using the facts as found, apply the policy‚Äôs definitions 
to those facts to determine whether sexual harassment 
occurred 
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Assessment of credibility 

‚Ä¢ Line up facts relevant to credibility 
145 

‚Ä¢ Factors (among others) 
‚Ä¢ Plausibility‚ÄîIs the testimony believable and does 
it make sense? 
‚Ä¢ Specificity 
‚Ä¢ Motive to falsify‚ÄîDoes the person have a reason 
to lie (other than mere status as party)? 
‚Ä¢ Corroboration/consistency/contrary evidence‚ÄîIs 
there testimony or evidence that corroborates the 
witness account? Are the witness accounts 
consistent? Are inconsistencies explained? Is 
there evidence disputing the witness account? 

‚Ä¢ Past Record‚ÄîDoes the person have a history of 
similar behavior? 
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What is the outline of a written decision? 

A written document, provided contemporaneously to the parties that: 

‚Ä¢ Identifies the allegations of sexual harassment 
‚Ä¢ Describes the various procedural steps taken from the time the 
formal complaint was made 
‚Ä¢ States findings of facts supporting the determination 
‚Ä¢ Reaches conclusions regarding application of relevant policy 
definitions to the facts 
‚Ä¢ Includes a rationale for each finding for each allegation 
‚Ä¢ States the disciplinary sanctions and remedies, if implicated by 
the determination made, and 
‚Ä¢ Explains the procedures and grounds for appeal 
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Who determines discipline and remediation? 

‚Ä¢ Some institutions will have the decisionmaker(
s) also impose discipline 
‚Ä¢ Others may refer a disciplinary authority with 
jurisdiction over the respondent (i.e., Dean 
of Students, Provost, Director of Human 
Resources, etc.) 
‚Ä¢ If referred to someone else, that must occur 
before the written determination is issued 
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What are the grounds for appeal? 

149 

Title IX regulation requires the following permitted grounds: 
Procedural irregularity that affected the outcome of the matter; 
New evidence that was not reasonably available at the time the 
determination regarding responsibility or dismissal was made, that 
could affect the outcome of the matter; or 
Title IX Coordinator, investigator, or decision-maker (hearing official) 
had a conflict of interest or bias against complainants or respondents 
generally or the individual complainant or respondent that affected 
the outcome of the matter 
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EXAMPLE: Appeal 

Respondent appeals and submits 
evidence that one member of a three-
person hearing panel previously wrote 
gushing letters of recommendation for 
complainant. Hearing panel member 
did not self-disclose the letters when 
selected to serve on the panel. 

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Title IX Training 2/18-19/2025 

Jamie accuses Cleo of stalking by repeatedly sending Jamie 
personal text messages and lurking outside Jamie‚Äôs 

Group Scenario 

townhouse. During the investigation, witness Damien, who is 
Jamie‚Äôs friend, tells the investigator he saw a figure lurking 
outside Jamie‚Äôs townhouse, and he is confident it was Cleo. 
The investigator did not ask Damien why he was so confident. 

At the hearing, Cleo admits to sending personal text 
messages but denies ever being outside Jamie‚Äôs townhouse. 
Under cross-examination, Cleo testifies she was studying for 
a midterm the night of the alleged lurking and provides a 
syllabus to confirm the date of the midterm. Jamie admits 
they never saw the face of the lurking figure. Damien does 
not appear at the hearing, but the investigator verbally relays 
what Damien said in his interview. Cleo‚Äôs advisor demands 
the hearing be delayed until Damien‚Äôs attendance is secured. 
The hearing officer denies the request. 

The hearing officer credits Damien‚Äôs testimony to the 
investigator and finds Cleo responsible for stalking. The 
hearing officer notes that the decision is a ‚Äúclose one‚Äù and 
that Cleo‚Äôs actions would not constitute stalking but for the 
fact Cleo lurked outside Jamie‚Äôs townhouse. 

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Title IX Training 2/18-19/2025 

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Informal Resolution & Other Processes 
153 

What is informal resolution? 

A voluntary process to resolve 
formal complaints of sexual 
harassment through a 
mechanism other than the 
default investigation and 
hearing. 

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What are the key concepts of informal resolution? 

The parties must be 
apprised in writing of how

A formal complaint must 
the informal resolution 

first have been filed and 
process will work and the 

written notice given to the 
consequences of

parties 
participating in it 

The parties must be

The parties must 

allowed to withdraw from 

voluntarily agree to 

informal resolution up 

participate in writing 

until the point it is final 

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What are the limitations? 

‚Ä¢ Informal resolution cannot be used where an employee 
is accused of sexually harassing a student 
‚Ä¢ Informal resolution cannot be used in the absence of a 
formal complaint 
‚Ä¢ Institution cannot require persons to consent to informal 
resolution as a condition of employment or enrollment 
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Title IX Training 2/18-19/2025 

EXAMPLE: Impermissible informal resolution 

A student files a formal complaint 
accusing their faculty advisor of sexually 
harassing student by repeatedly asking if 
student is dating. Faculty member claims 
they were just trying to get to know 
student and offers to apologize. 

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EXAMPLE: Permissible informal resolution 

Student A accuses Student B of dating 
violence. Student B wants to apologize, 
offer to take anger management 
counseling, and promise not to contact 
Student A again. Student A would prefer 
these terms to an investigation and live 
hearing. 

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Must an institution allow informal resolution? 

‚Ä¢ Current regulations permit but do 
not require informal resolution 
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Why approve informal resolution? 

‚Ä¢ Deference to the parties‚Äô wishes 
‚Ä¢ Often quicker and more efficient 
‚Ä¢ Removes uncertainty of outcome 
‚Ä¢ More flexibility and creativity than a 
disciplinary outcome 
‚Ä¢ Mitigates litigation risk (for everyone) 
‚Ä¢ Others? 
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Why not approve informal resolution? 

‚Ä¢ Conduct is too severe or concerning 
‚Ä¢ Proposed terms are simply inadequate 
‚Ä¢ Undermines public confidence in Title IX compliance 
‚Ä¢ No confidence parties will abide by agreement 
‚Ä¢ Concern a party is being pressured or improperly 
influenced 
‚Ä¢ Others? 
¬© 2025 Husch Blackwell LLP 

What issues need to be addressed in informal 
resolution? 

‚Ä¢ The substantive terms 
‚Ä¢ How compliance will be verified 
‚Ä¢ The punishment for non-compliance 
‚Ä¢ The effect on the pending formal complaint 
‚Ä¢ The effect on collateral conduct 
charges/policy violations 
‚Ä¢ Others? 
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EXAMPLE: Informal resolution detail 

Two students at a small college agree 
‚Äúnot to interact with each other while they 
are at the college.‚Äù What does ‚Äúinteract‚Äù 
mean? How will shared spaces be used? 
What if they are in the same class? What 
if they have the same friends? 

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EXAMPLE: Informal resolution detail 

Student accused of stalking agrees to 
hire a counselor and follow the 
counselor‚Äôs recommendations for 
treatment. What if the counselor fails 
to diagnose a condition? How will the 
counselor‚Äôs recommendations be 
known? How will treatment be 
confirmed? 

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EXAMPLE: Informal resolution detail 

Two employees agree to informal 
resolution in which Respondent will 
complete 20 hours of community service 
and retake the Title IX training course for 
students. Respondent only completes 12 
hours and fails to take the course. What 
is the consequence? 

¬© 2025 Husch Blackwell LLP 

How should we document an informal resolution? 

‚Ä¢ Documented in writing 
‚Ä¢ All essential terms in the same document 
‚Ä¢ Signed by the parties 
‚Ä¢ Dated 
‚Ä¢ Indicating institutional approval 
‚Ä¢ Indicating closure of grievance procedure 
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Title IX Training 2/18-19/2025 

Is Title IX the exclusive process for resolving 
sexual misconduct? 

‚Ä¢No 

‚Ä¢ Title IX does not preclude 
the use of other policies and 
processes that may be 
implicated by a report of 
sexual misconduct 
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What other policies/processes may apply? 

‚Ä¢ Title VII policy ‚Ä¢ Threat assessment 
‚Ä¢ Consensual ‚Ä¢ Employee handbook 
relationships policy provisions 
‚Ä¢ Professionalism ‚Ä¢ Faculty handbook 
policies provisions 
‚Ä¢ Student code of ‚Ä¢ Contractual provisions 
conduct 
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At what point can we use some other policy? 

Depending on facts: 

Before a Title IX 
grievance process 
At the same time as 
a Title IX grievance 
process 
After a Title IX 
grievance process 
¬© 2025 Husch Blackwell LLP 

EXAMPLE: Before Title IX 

Faculty member reports that a student 
was watching graphic pornography in the 
lecture hall during class. Faculty member 
is concerned other students may feel 
harassed. Institution prohibits using its 
network to view pornography and conduct 
code prohibits conduct that disrupts 
academic instruction. 

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EXAMPLE: During Title IX 

Student A returns to their residence hall to find 
Student B drunk and exposing themselves to 
others in the lobby. Student A makes a sexual 
harassment complaint. Title IX investigator 
secures video from the lobby that clearly 
depicts Student B exposing themselves to 
others. The residence hall contract prohibits 
students from appearing naked outside their 
room or the restroom. The student conduct 
code prohibits lewd or obscene behavior. 
Student B refuses to participate in Title IX 
process. 

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EXAMPLE: After Title IX 

Student accuses faculty member of sexual 
harassment by pursuing romantic relationship 
with student that was unwelcome. Title IX 
hearing officer concludes that faculty member 
and student had a romantic relationship, that 
faculty member instigated it, but student 
welcomed the relationship and reciprocated 
faculty member‚Äôs advances. Institution has a 
separate policy that prohibits faculty from 
pursuing or engaging in romantic relationships 
with students unless student and faculty 
member are married. 

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Can we use another process to make the 
same finding we would otherwise makeunder Title IX policy? 

‚Ä¢No 

‚Ä¢ Title IX regulation requires the 
use of specific Title IX process for 
any ‚Äúsexual harassment‚Äù as 
defined by Title IX that occurs in 
institution‚Äôs programs and 
activities 
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Alex makes a formal complaint that Ellis fondled Alex by 
repeatedly touching Alex‚Äôs genitals outside Alex‚Äôs clothing while 

Group Scenarios 

the two were kissing. 
Ellis claims they thought Alex consented and proposes an informal 
resolution that will include an apology and mandatory Title IX 
training. Alex agrees to avoid the uncertainty of a hearing. The 
informal resolution agreement states that it ‚Äúshall not be construed 
as an admission of liability on Respondent‚Äôs part,‚Äù and notes ‚Äúthis 

agreement is confidential and finally resolves the formal Title IX 
complaint.‚Äù Ellis apologizes and completes the training. 
Later, Alex connects with Emery, who claims to have had a similar 

experience wherein Ellis forcibly fondled them after consensual 
kissing. After Alex‚Äôs prompting, Emery files their own formal 
complaint. Alex also re-files their original complaint and 
specifically alleges that Ellis ‚Äúdefrauded‚Äù Alex into the informal 
resolution by being falsely apologetic and lying about their belief 
Alex consented. 

Alex meets with the investigator in Emery‚Äôs case, recounts their 
experience with Ellis, and tells the investigator that Ellis escaped 
discipline by ‚Äúduping me into a settlement.‚Äù Ellis files a complaint 
alleging Alex is retaliating against Ellis and breaching 
confidentiality. 

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Questions 
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Caselaw Update 
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Title IX Training 2/18-19/2025 

General Litigation Trends 

‚Ä¢ Continued growth of respondent-filed 
lawsuits alleging discriminatory and 
unfair processes 
‚Ä¢ General growth in state tort and breach 
of contract theories resulting from 
narrowed Title IX damages 
‚Ä¢ More cases including claims of 
LGBTQ+ harassment and/or 
discrimination 
‚Ä¢ More retaliation cases 
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Case #1: Roe v. St. John‚Äôs University (2d Cir. 
2024) 

‚Ä¢ Plaintiff was found responsible for two 
sexual assaults by university 

‚Ä¢ Plaintiff sues university under Title IX 
for anti-male bias and for failing to 
investigate his claim that one accuser 
made a false allegation of sexual 
assault on social media 
‚Ä¢ Plaintiff also brings breach of contract 
claim against university 
‚Ä¢ A 2-1 decision affirms the district 
court‚Äôs dismissal of Roe‚Äôs claims 
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Some Key Takeaways 

‚Ä¢ To prove ‚Äúerroneous outcome‚Äù theory of 
liability, respondent/plaintiff must show sex 
was motivating factor in decision 
‚Ä¢ An erroneous outcome and typical procedural 
errors are not enough, by themselves, to 
show improper motivation 
‚Ä¢ A singular alleged false accusation of sexual 
assault on social media is not severe, 
pervasive, and objectively offensive 
‚Ä¢ Judges are deeply divided on Title IX 
respondent cases 
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Case #2: MacIntyre v. Carroll College (9th Cir. 
2022) 

‚Ä¢ Plaintiff was former golf coach whose 
contract was non-renewed after coach 
complained about Title IX (equity) noncompliance 
and hostile environment and 
discrimination by athletic director and 
president 

‚Ä¢ School settled Plaintiff‚Äôs internal complaints 
and agreed to a two-year contract for 
Plaintiff 
‚Ä¢ When school elected not to extend two-
year contract, Plaintiff sued for retaliation 
‚Ä¢ Non-renewal of a fixed term contract can be 
adverse employment action for retaliation 
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Title IX Training 2/18-19/2025 

Some Key Takeaways 

‚Ä¢ Title IX protects employees from 
retaliation, similar to Title VII 

‚Ä¢ An adverse action is ‚Äúone that might have 
dissuaded a reasonable person‚Äù from 
complaining about discrimination 
‚Ä¢ It is easier to show adverse action for 
retaliation purposes than for employment 
discrimination generally 
‚Ä¢ A school cannot avoid retaliation by 
claiming the expiration of a fixed contract 
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is not adverse action 

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Case #3: Barlow v. Washington State Univ.
(Wash. 2024) 

‚Ä¢ Plaintiff was raped by a peer at an off-
campus apartment 

‚Ä¢ University had prior notice that peer posed a 
risk of sexual misconduct due to events at 
another system campus 
‚Ä¢ University allowed student to transfer to 
Plaintiff‚Äôs campus while investigations were 
pending 
‚Ä¢ Court holds university has a ‚Äúspecial 
relationship‚Äù as a landlord that requires it to 
both control and protect students who are 
on campus or involved in university activities 

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Some Key Takeaways 

‚Ä¢ Institutions may have a tort law duty to protect 
students from criminal acts of peers even 
though students are adults 
‚Ä¢ Increasingly likely that courts impose a duty of 
care for sexual misconduct on campus where 
the risk was foreseeable 
‚Ä¢ Continued efforts by plaintiffs to expand the 
duty of care to that similar in a K-12 context 
‚Ä¢ State tort theories may pose a greater risk of 
damage verdicts than Title IX 
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Case #4: Parents Defending Education v. Lin 
Mar Community School District (8th Cir. 2023) 

‚Ä¢ K-12 school district enacts policy that says 
‚Äúintentional and/or persistent refusal . . . to 
respect a student‚Äôs gender identity is a 
violation‚Äù of bully and harassment policies 
‚Ä¢ Parents sue to enjoin policy as violating First 
Amendment rights of their children 
‚Ä¢ Policy‚Äôs prohibition on a refusal to ‚Äúrespect a 
student‚Äôs gender identity‚Äù is unconstitutionally 
vague and could prohibit clearly protected 
speech, such as a minor expressing the 
opinion that biological sex is immutable 

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Title IX Training 2/18-19/2025 

Some Key Takeaways 

‚Ä¢ Policies that prohibit certain types of speech 
must be clear so people are on notice of what 
will constitute a violation 

‚Ä¢ A policy cannot define harassment or bullying 
to include clearly protected First Amendment 
speech 
‚Ä¢ Policies concerning names and pronouns 
must be carefully crafted and still are highly 
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susceptible to legal challenge 

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Case #5: D.N. by Jessica N. v. DeSantis(S.D. Fla. 2023) 

‚Ä¢ Florida law prohibits transgender 
women from participating on women‚Äôs 
designated sports teams at public K-12 
schools or public universities 

‚Ä¢ Transgender female challenges law as 
violating Title IX and U.S. Constitution 
‚Ä¢ Court rules law does not violate Title IX 
because Title IX‚Äôs definition of ‚Äúsex‚Äù 
does not include gender identity and 
Title IX specifically allows sex-
segregated teams 
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Some Key Takeaways 

‚Ä¢ There is a conflict between the 
Department of Education‚Äôs broader 
interpretation of ‚Äúsex‚Äù under Title IX and 
some courts‚Äô narrower interpretations 
‚Ä¢ Courts are conflicted as to whether Title 
IX includes ‚Äúgender identity‚Äù as part of sex 
‚Ä¢ Dozens of states have passed laws 
restricting participation on teams to 
biological sex, affecting both schools and 
athletic conferences 
‚Ä¢ More litigation and legislation in this space 
is likely 
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Case #6: Doe v. Ohio University (S.D. Ohio 2023) 

‚Ä¢ Plaintiff reported being sexually assaulted 
while incapacitated 

‚Ä¢ After making report, Plaintiff is allegedly 
called a liar, poked, prodded, and joked at 
by friends of the respondent, in class 
‚Ä¢ Professor and institution allegedly did 
nothing to stop the peer harassment 
‚Ä¢ Plaintiff‚Äôs claim survives summary judgment 
‚Ä¢ But Plaintiff cannot pursue punitive 
damages or emotional distress damages 
under Cummings 

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Some Key Takeaways 

‚Ä¢ Institutions can face Title IX deliberate 
indifference claims based on peer 
harassment prompted by a complaint 
‚Ä¢ The failure to take any action to stop peer-
harassment is deliberate indifference 
‚Ä¢ Supreme Court‚Äôs Cummings 
decision has 
substantially narrowed the scope of 
recoverable damages on Title IX deliberate 
indifference claims 

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