A Legal Expert’s Insights for Colleges and Universities on the New Title IX Regulations
June 16, 2020
The U.S. Department of Education recently issued new regulations implementing Title IX of the Education Amendments Act of 1972, which prohibits discrimination on the basis of sex in any education program or activity receiving federal funds. In order to comply with the regulations, which take effect August 14, many colleges and universities across the country will have to make significant changes to the manner in which they address reports of sexual harassment, including sexual assault. The August timeframe is especially challenging as institutions of higher education are trying to plan for a possible return to campus in the face of the COVID-19 pandemic. As one college attorney said to me, “…the timing is inexplicably cruel.”
I’ve asked Amy C. Foerster, a former university general counsel and now co-chair of Pepper Hamilton LLP’s Higher Education Practice Group, to answer a few questions about the implications of these regulations.
What are the most significant changes required by the new regulations?
ACF: It might vary institution-to-institution, but, generally, I think the most significant changes include:
- Employees–The regulations apply not only to students, but to faculty and staff as well. In other words, when Title IX is implicated, the grievance procedures required by the regulations will extend to matters involving employees as complainants and respondents.
- Jurisdiction–Institutions might have community standards that encompass a more expansive definition of sexual misconduct than the regulations. However, the regulations require that institutions dismiss complaints for Title IX purposes if the conduct alleged (i) does not meet the definition of “sexual harassment” included in the regulations, (ii) did not occur either within the institution’s programs or activities or in any building owned or controlled by an officially-recognized student organization, or (iii) did not occur in the United States. Institutions can still adjudicate sexual misconduct that does not fall within the jurisdiction of the regulations (g., an alleged sexual assault between two students in a study abroad program or at an off-campus private residence), but must do so under their code of conduct or other non-Title IX designated process.
- Live Hearing – The regulations require that institutions hold live hearings at which parties’ advisors – and not the parties themselves – conduct direct, oral cross-examination of the parties and witnesses, and the decisionmaker makes rulings on the relevance of the questions. Institutions cannot require that the parties submit questions in writing to be asked by the decision-maker, which has been a fairly common model to date.
- Training–Institutions are required to post all materials used to train those involved in the Title IX processes (g., investigators, advisors, decision-makers) on their publicly accessible websites.
We’re only two months away from the effective date. How can colleges and universities tackle such a significant undertaking?
ACF: Implementation would be a daunting task anytime, but particularly so as colleges and universities navigate ongoing issues related to the COVID-19 pandemic and, in many cases, plan for a return to campus this fall. In developing an implementation plan, colleges and universities may wish to consider the work to be done as falling into three buckets:
- Policies: Identify policies–and, if applicable, staff and/or faculty contracts – that must be drafted, revised or renegotiated. Determine who has to be at the table for each of those discussions–those individuals might differ depending on whether student, staff or faculty policies are being covered.
- Personnel: Identify the roles to be filled in the reporting, investigation and adjudication processes, including Title IX coordinator(s), investigator(s), institution-provided advisors, decisionmakers (initial and appeal) and those responsible for informal resolution and supportive measures. Determine who will fill each role, whether current employees, new hires, contractors or others. In doing so, bear in mind that with litigation pending and an upcoming presidential election, there could be additional changes down the road, such that it may be helpful to leave the institution some flexibility with respect to future staffing.
- Training: Catalog the regulations’ training requirements for the individuals identified above, develop training and prepare a training schedule.
I’ve read about lawsuits pushing back on the regulations. Will the August 14, 2020 effective date be delayed?
ACF: Several lawsuits have been filed challenging the regulations, including by advocacy groups and state attorneys general. While many institutions would welcome a court delaying or altogether blocking implementation of the regulations, at this point we cannot predict with any certainty whether the lawsuits will be successful, nor when we will know the outcome. With only two months left until the current effective date, I do not think colleges and universities can wait to see what happens – they should continue planning for implementation.
What should colleges and universities be messaging to their constituencies about the regulations?
ACF: While colleges and universities are already talking about who should be involved in communications regarding their development of new policies and procedures, I haven’t heard many talking about a more general communications plan. Students (and prospective students), parents, faculty, staff, trustees and donors all are seeing headlines about sexual misconduct on campuses and the new regulations. While they may come at the issues from different perspectives, they all want to know that institutions take sexual misconduct and student safety seriously, and that they treat all of their students fairly. It’s in an institution’s best interest to communicate proactively on these points.