Intake and IHE Response

1. Reporting

   1. Anyone can report sex discrimination, including sexual harassment (whether or not the reporting person is the alleged victim). § 106.8(a)
   2. Both formal complaints and reports that don’t qualify as “formal complaints” require IHE action.

2. Actual Knowledge and Duty to Act

   1. IHEs with actual knowledge of sexual harassment in an education program or activity of the IHE against a person in the United States must respond promptly in a manner that is not deliberately indifferent, meaning not clearly unreasonably in light of the known circumstances. § 106.44(a).

3. Which employees count as having “actual knowledge”?

   1. For postsecondary institutions, the regulations limit actual knowledge to only when a Title IX Coordinator or an official with authority to take corrective measures has notice. § 106.30(a).
   2. This standard is not met when the only official of the IHE with actual knowledge is the respondent. § 106.30(a).
   3. The mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the IHE. §106.30(a).
   4. Determining whether an employee is an official with authority to institute corrective measures depends on the IHE’s operational structure and the employee’s roles and duties. (p. 30039).

4. General Obligations

   1. IHE response must treat complainants and respondents equitably. § 106.44(a).
   2. Burden of proof and burden of gathering evidence sufficient to reach a determination regarding responsibility rests on the IHE, not the parties. § 106.45(b)(5)(i).
   3. IHE must follow Title IX grievance process before imposing disciplinary sanctions or other actions that are not supportive measures against a respondent. § 106.44(a).
   4. Regulations require “reasonably prompt time frames.” § 106.45(b)(1)(v)
      1. Colorado statute requires good faith effort to complete the adjudication process, exclusive of appeals, within an average of sixty to ninety days. § 23-5-146(3)(d)(I), C.R.S.
   5. IHE may need to undertake some degree of investigation or inquiry at outset to determine whether allegations fall under scope of Title IX.

5. Initial Response to Report of Sexual Harassment

   1. Upon receipt of a report of sexual harassment falling within the scope of Title IX from anyone, Title IX Coordinator must:
      1. Contact complainant to discuss availability of supportive measures, with or without a formal complaint;
      2. Consider complainant’s wishes with respect to supportive measures; and
      3. Explain to complainant the process for filing a formal complaint.
         § 106.44(a).

6. Formal Complaints

   1. Formal complaint triggers IHE’s obligation to initiate formal grievance process. § 106.44(b)(1). To be a formal complaint, a report must:
      1. Allege sexual harassment;
      2. Be made by a person (or the parent of a person) who: (1) allegedly experienced the conduct complained of, and (2) is participating or attempting to participate in a program or activity;
      3. Be a document filed by a complainant or signed by a Title IX Coordinator;
      4. Be made “against a respondent”; and
      5. Request an investigation.

7. Reports covered by Title IX but without a formal complaint

   1. When a complainant has not made a formal complaint, yet the alleged conduct falls under Title IX, the Title IX Coordinator must either:
      1. Close the report – if, for example the complainant does not want an investigation; or
      2. Sign a formal complaint and initiate the Title IX grievance process.
         1. Some circumstances may require the Title IX Coordinator to initiate an investigation and adjudication of allegations in order to protect the IHE’s educational community or otherwise avoid being deliberately indifferent to known sexual harassment. (p. 30132).

8. Notifications required after a formal complaint made

   1. Notice of the IHE’s grievance process that complies with this section, including any informal resolution process.
   2. Notice of the allegations of sexual harassment potentially constituting sexual harassment as defined in § 106.30, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview. Sufficient details include:
      1. the identities of the parties involved in the incident, if known,
      2. the conduct allegedly constituting sexual harassment under § 106.30,
      3. and the date and location of the alleged incident, if known.
   3. The written notice must also:
      1. include a statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.
      2. inform the parties that they may have an advisor of their choice, who may be, but is not required to be, an attorney, under paragraph (b)(5)(iv) of this section, and may inspect and review evidence under paragraph (b)(5)(vi) of this section.
      3. inform the parties of any provision in the IHE’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process.
   4. If, in the course of an investigation, the IHE decides to investigate allegations about the complainant or respondent that fall within the scope of Title IX and are not included in the notice provided pursuant to paragraph (b)(2)(i)(B) of this section, the recipient must provide notice of the additional allegations to the parties whose identities are known.
      § 106.45(b)(2)(i)(A), (B), and (ii).

9. Mandatory Dismissal

   1. Must dismiss a complaint from Title IX process if the alleged conduct:
      1. would not constitute sexual harassment as defined in the regulations;
      2. did not occur in the IHE’s education program or activity; OR
      3. did not occur against a person in the United States.
         § 106.45(b)(3)(i).

10. Discretionary Dismissal

    1. May dismiss a complaint from the Title IX process, at any time, if:
       1. complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein;
       2. the respondent is no longer enrolled or employed by the IHE; or
       3. specific circumstances prevent the IHE from gathering evidence sufficient to reach a determination.
          § 106.45(b)(3)(ii).

11. Dismissal Requirements

    1. Upon dismissal from Title IX process, IHE must:
       1. promptly send written notice of dismissal and the reason to both parties, and
       2. offer an appeal based on procedural irregularity, new evidence, or conflict of interest/bias.
          § 106.45(b)(3)(iii).

12. Discretion to Address non-Title IX Misconduct Pursuant to IHE’s Community Standards

Dismissal from Title IX proceeding does not preclude action under another provision of the IHE’s code of conduct. § 106.45(b)(3)(i).