10 Title IX decisions that you need to make immediately

The new Title IX regulations go into effect on August 14. Colleges have until then to update their Title IX policies and procedures.  

What are the new regulations? How would they affect your college? Which provisions demand your immediate attention? 

Read on to learn about the regulations which would have a major impact upon your Title IX program. We’ll also address the changes to your Title IX program, which you should start working upon immediately.

  1. Definition of Sexual harassment

The new regulations redefine sexual harassment under Title IX. Colleges must use this new definition when addressing Title IX complaints. 

Under the new law, sexual harassment is a conduct that is severe, pervasive and objectively offensive to deny equal right to an educational program to the victim.

Complaints of sexual harassment would fall under Title IX, if the conduct in question is –   

    1. Quid pro quo behavior by an employee, which affects a student’s access to college aid, benefits or services.
    2. Unwelcome conduct that is severe, pervasive and objectively offensive enough to limit a student from having equal access to an educational program. 
    3. Sexual assault, dating violence, domestic violence, and stalking.

Older definition of Sexual harassment under Title IX

Under the previous regulations, sexual harassment was defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of sexual nature, when

    1. Submission to such conduct is made a term or condition of employment, educational environment, or academic status. 
    2. Submission to or rejection of such conduct is used as the basis of important decisions affecting the person, or
    3. The conduct is severe, pervasive or persistent enough to create a hostile work environment.

This definition can no longer be used for Title IX complaints. 

  1. Binding Title IX complaints 

Under the previous regulations, colleges were held accountable for not knowing or acting upon an incident of sexual harassment. Appointed staff had the responsibility of reporting such incidents to their Title IX office. The college must then investigate the incidents and take appropriate actions.

College liability for such incidents has been reduced greatly under the new regulations. 

Colleges have to answer only for the complaints received by their Title IX coordinator (or an employee with authority to make corrective decisions.) 

  1. Investigation geography

The new regulations cover all educational programs and activities controlled by the college. This includes locations, events and circumstances over which the college exercises strong control. College’s responsibility to investigate Title IX complaints have been extended to include student organizations situated outside the college campus. 

The college liability for Title IX has been reduced to programs and activities within the country. 

  1. Supportive measures “First response”

Colleges falling under Title IX jurisdiction, must provide supportive measures to complainants. Once your Title IX coordinator receives a report of sexual harassment, they must – 

    • Contact the complainant.
    • Share the supporting measures that college can offer.
    • Inform the victim that these measures are available to them, whether they choose to file a formal complaint or not. 
    • Explain the procedure of filing a formal complaint with the college.

Title IX coordinators must offer these supportive measures in response to every report, which they receive. 

Furthermore, when designing your supportive measures the college must ensure that – 

    1. The person can attend the school’s educational programs, 
    2. Protects the safety of all parties, and 
    3. Deters retaliation. 

Such measures should be 

    • Non-disciplinary, 
    • Non-punitive, 
    • Reasonably available, and 
    • Without charge. 

Colleges should be aware that such measures may have to continue beyond the investigation and resolution period. 

  1. Title IX Coordinators can also sign Title IX complaints 

Colleges are liable for investigating written complaints only. The complainant must sign the complaint for the college to investigate the incident. 

But, if the complainant doesn’t want to sign the complaint, Title IX coordinators can sign too. This applies to cases, in which the title IX coordinator feels an investigation is necessary for the safety of the campus.

  1. One person cannot act as Title IX Coordinator and Title IX investigator, both

Under the current law, Title IX coordinators could also investigate a complaint. The new law prohibits this practice. Title IX coordinators can no longer perform investigator duties.

Colleges cannot appoint Title IX coordinators as Title IX investigators. It must be a different person. Colleges must appoint separate people for managing Title IX obligations, conducting investigations, and hearing Title IX cases. 

  1. Procedural requirements

Here’s the list of new procedural requirements for investigating and resolving Title IX complaints. 

    1. Begin with Presumption of innocence 

College must investigate the complaint with a presumption of innocence. The burden of proving that the accused is guilty lies with the college.

    1. Prohibition of Single-investigation model 

Colleges should stop using the single-investigator model for handling Title IX complaints. 

Title IX investigator or coordinators cannot take decisions about responsibility without a proper hearing. Colleges must appoint a separate person as the decision-maker apart from the Title investigator and Title IX coordinator. 

    1. Choice of using clear and convincing evidence standards

Colleges now have the option of using ‘clear and convincing’ evidence standards for judging a Title IX complaint. Unlike the previous standards, they can use either the preponderance of evidence standards or clear and convincing evidence standards for taking decisions. 

    1. Provide written notice of allegations

Colleges must provide a written notice of allegations to the involved parties. They must receive an equal opportunity to review the evidence.  

    1. Conduct live hearings

Colleges must conduct live hearing of Title IX cases before taking disciplinary decisions. The two parties should be allowed to cross-examine each other. This cross-examination can be conducted by advisors on behalf of the two parties. The advisors can pose questions to the other parties verbally or submit them on paper.  

The two parties should be allowed to take part from separate rooms, and question each other using technology tools.

  1. Informal resolution

Colleges can facilitate resolutions of title IX complaints using informal processes also. But, they must get voluntary consent from the parties before starting the process. 

All parties should receive – 

    1. Written notice of allegations, 
    2. Requirements of the resolution process 
    3. Consequences of participating in the process. 

College must also inform the parties of the documentation that would happen, and if the documentation would be shared with others. 

Informal processes, however, cannot be used for complaints in which an employee is accused of harassing a student. Such incidents carry an authority bias towards the employee. 

  1. Handling Sexual misconducts not covered by Title IX

All complaints of sexual misconduct can no longer be handled under Title IX. The new definition of sexual harassment reduces the types of misconduct that could be investigated under the law. Such cases would have to be dealt with individually. 

You must decide upon how you would handle such complaints. You can use either the same policies or procedures, or you can create two different policies and procedures for Title IX complaints and sexual misconduct not covered by Title IX. 

  1. New training requirements 

The new law emphasizes Title IX training heavily. Training is now compulsory for Title IX coordinators, investigators, hearing boards, and officials facilitating informal resolutions. 

The training should cover –

    1. The new definition of sexual harassment, 
    2. Scope of educational program or activity, and 
    3. Investigation and grievance procedures used by the college.

The training should not rely on sex stereotypes. And, it should promote impartial investigation. 

Colleges must maintain and post the training material over the college website for seven years after they were presented.

In Conclusion

Since the 2011 Dear Colleague letter, the Title IX law was focused upon protecting the victims of sexual harassment. The general approach of most Title IX staff was to assume the victim’s account, and work towards resolving the victim’s complaint. This approach cannot be used under the new regulations. Colleges will have to start by assuming that the accused is not guilty, and prove it otherwise. 

Similarly, the new definition of sexual harassment reduces the cases of sexual misconduct covered under Title IX. College administrators should make a note of this point. You may have to create a separate set of policies and procedures for handling complaints not covered by Title IX. 

Colleges have until August. The new regulations go into effect on August 14. If you have questions about the new Title IX regulations, or if you want to share your views with our readers, please share your comments in the comments section below. 

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