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Title IX Regulations and Proposed Changes
Thursday, May 21st, 2020
In the 1960s, more women than ever entered the American workforce, highlighting issues of gender equality and workplace sexual harassment. This, in turn, helped bring attention to discrimination in educational settings, especially at colleges and universities.
Fueled by this growing women’s movement, President Richard Nixon signed Title IX of the Education Amendments of 1972 into federal law. Among the many requirements of Title IX, perhaps the most important is the establishment of procedures that allow for “prompt and equitable resolution of student and employee complaints.”
Secretary of Education Betsy DeVos proposed several reforms to Title IX regulations regarding sexual harassment in late 2018. The Office of Management and Budget has held meetings since November with the proposal in the Final Rule Stage and on May 6, 2020, the Department of Education released the new Title IX regulations. The new regulations go into effect August 14, 2020.
The Basics of Title IX
From its inception, Title IX has stated that “no 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.”
Title IX applies to all K-12 schools, colleges, universities, and other educational or training programs that receive federal funding, with few exceptions. There have been many instances of policy guidance being issued by the government at various times, with the most recent coming just over two years ago.
In 2017, while the Department of Education conducted a regulatory review ahead of proposed changes, the administer of Title IX, the Office for Civil Rights (OCR), introduced a document to serve as temporary, but official, guidance on Title IX.
This latest question-and-answer document addresses 12 specific questions and outlines the OCR’s adjusted guidance, but we have highlighted some of the most notable changes below.
Instead of requiring sexual harassment or sexual misconduct investigations to be completed within 60 days, the OCR notes that investigations should be “prompt.” The lack of specificity regarding a timeline is likely advantageous, as it prevents investigations from being rushed to meet the 60-day criteria.
Standard of evidence
Perhaps the biggest change from previous guidance is the standard of evidence used when investigating claims of sexual misconduct. Each institution can now decide to use either a preponderance of evidence standard or a clear and convincing evidence standard, so long as that same standard is used in other types of student misconduct investigations. As determined in 2016 in Doe v. Brandeis Univ., the use of a different standard in sexual misconduct investigations may be seen as “an effort to tilt the playing field against accused students.”
Use of informal resolutions
Previously, mediation was prohibited in sexual violence cases. However, this interim document offers informal resolutions, including mediation, as an option if all parties voluntarily agree. This allows the school to avoid conducting a full, potentially lengthy, investigation, but all involved parties must be aware of the allegations and all available options for resolution.
Defining an equitable investigation
Every investigation into a Title IX issue must be equitable to all parties. Neither the reporting nor defending party should be restricted from discussing details of the investigation, especially when doing so may help them obtain or present applicable evidence. Additionally, each party must have access to a written report outlining all evidence and any other information that may be used during formal or informal meetings or hearings.
Restriction of appeals
Prior to the 2017 document, both the reporting and responding parties had the opportunity to appeal an investigation’s decision and/or the subsequent disciplinary action. The new guidance states that, while an institution can still offer the option of appeal to both parties, they now are able to restrict the option of appeal to only the responding party if they so choose.
While these interim guidelines provide the current standard for Title IX compliance, remember that proposed changes are going through the final stages of approval and may be implemented in the near future. All faculty and staff at your institution should be aware of, and prepared for, changes that may soon come.
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Proposed Changes and Next Steps
Since being confirmed as Secretary of Education in February 2017, Betsy DeVos has worked to scale back federal oversight of public schools. Her proposed reforms of Title IX procedures reflect her guiding principles, which she explains are “to reduce the role of government, respect the rule of law and to resurrect the rights of students and families.”
There are extensive changes outlined in the newest proposal, from definitions of terms to the rights of both the complainant and the respondent. Below are a few of the areas that may require the most attention from educational facilities.
Greater clarity of rights
No matter what final regulatory changes end up being implemented, schools must understand their full legal obligations for responding to and investigating any report of sexual misconduct.
Additionally, the Department of Education is hoping the new regulation helps reporting parties and responding parties understand their rights and options during an investigation and after any sanctions have been handed down.
Following DeVos’ guiding principles, these new regulations are based on the core American values of due process and the rule of law. The Department of Education wants to ensure reliable, consistent outcomes in Title IX investigations, encouraging more students to turn to their school for support and also reducing occurrences of improper punishments for the accused.
Clear definition of sexual harassment
It is important that there be a standard, clear definition of what is actionable under Title IX. the proposed regulations offer a three-part definition of sexual harassment:
- Quid pro quo harassment, when a school employee promises an educational benefit in exchange for unwanted sexual conduct;
- Unwelcome conduct that is so severe, pervasive and objectively offensive that is prevents the victim from participation in educational programs or activities;
- Sexual assault, as defined by the Clery Act
Obligation of schools
Every school where Title IX applies must be aware of their obligations regarding sexual misconduct complaints. When the school has actual knowledge of a sexual harassment incident that occurred on campus or during a school-sponsored activity, they are obligated by law to respond meaningfully.
Schools would only be held liable to legal ramifications if they are “deliberately indifferent” to an accusation, which means they responded to a known incident in a “clearly unreasonable” manner.
Due process protections
In order to help create fair, reliable outcomes as much as possible, the new regulations outline numerous due process protections, starting with a presumption of innocence and putting the burden of proof on the school, not the responding party.
As mentioned, requiring the standard of evidence to be consistent across all student misconduct investigations creates equal investigations. Additionally, allowing for cross-examinations, and making all evidence available to all involved parties, creates fair circumstances, whether a formal or informal resolution is reached.
The American Civil Liberties Union (ACLU) sued Betsy Devos on May 14, 2020, which could hold up official implementation. The upcoming presidential election could bring about party changes, potentially putting even more of a roadblock on these changes.
However, in order to be as prepared as possible, you and your staff should review current Title IX processes so you know what changes will need to be made. You can also determine the standard of proof currently used in any misconduct investigation and make sure it is the same for Title IX investigations. The same standard of proof must also be used for faculty and staff issues, as well.
Tips for Staying Safe
Because sexual harassment and sexual assault does not occur only in certain social settings or only to students, it is important to promote safety in all situations, both on and off campus.
As our lives become seemingly more digital every year, it makes sense that there would be numerous mobile apps related to safety.
Here are a couple of the most popular apps — and one texting service — that provide different options for staying safe no matter where you are:
Circle of 6
In 2011, the Secretary of Health and Human Services, the Office of the Vice President and the White House Office of Science and Technology Policy launched Apps Against Abuse, a national competition to develop an app that provides tools to help prevent sexual assault. One of the winners was Circle of 6, which is still actively in use today.
Circle of 6 (currently available only on iOS) allows users to create their “circle” of up to six contacts. With just two taps, those select people can be notified of the user’s location and what kind of help is needed. The app can also notify a local emergency number if a critical situation calls for it.
One step beyond Circle of 6 is Noonlight, which has protected more than 1.5 million users since 2013. Instead of contacting your friends and family when the panic button is triggered, Noonlight instantly connects to a non-automated dispatcher who relays your information to the proper authorities.
However, the Noonlight creators also understand you won’t always have your phone nearby in an emergency. You can connect Noonlight to several smart devices and apps, including Alexa, Google Home, Nest and some smartwatches, to know you are fully protected no matter where an incident may occur.
While these apps offer great solutions for numerous situations, there are two main issues that should be addressed: 1) not everyone owns a smartphone and 2) safety apps require the user to take action, which may not always be possible or safe.
Kitestring is an SMS-based personal safety service offering an alternative that doesn’t require any app download and that is triggered by inaction. You simply text a time duration to Kitestring (for instance, before walking home alone or going on a solo drive) and it will text you back at that time. If you don’t respond, your pre-set emergency contacts will be notified.
No matter the job title or department, it is important for every school employee to be aware of Title IX’s details regarding sexual harassment, to be familiar with prevention and education, and to understand their role should a student or fellow employee make them aware of an incident.
Offering a comprehensive Title IX training course makes it easy to ensure all employees are on the same page in case your educational facility needs to address a sexual misconduct accusation, regardless of whether the most recent proposed changes go into effect this year or not.