By Katherine Demedis and Olivia O’Hea

Nine on IX: A Series of Articles Considering the New Title IX Rule

This is the second in a series of nine articles on the Department of Education’s new Title IX rule, which became effective on August 14, 2020.  The series is focused on changes that schools will likely need to make to their existing Title IX policies to comply with the new rule. 

Although the Department of Education’s new rule makes many changes to Title IX requirements for postsecondary institutions, much of the general Title IX framework remains the same. Institutions must still have the three core components: a policy of nondiscrimination, a grievance procedure, and a Title IX Coordinator.  However, significant revisions will likely be required to the grievance procedure and there are new training and record retention requirements that institutions must implement.  This article provides a high-level overview of these changes.

Nondiscrimination Policy

The requirements for the nondiscrimination policy have not changed.  The policy may be a simple statement that: (1) the school does not discriminate on the basis of sex in its education program or activity; (2) such nondiscrimination is required by Title IX and the Department of Education’s regulations; (3) such nondiscrimination extends to admission and employment; and (4) inquiries about Title IX may be referred to the Title IX Coordinator, the Department of Education’s Office of Civil Rights, or both.

Grievance Procedure

Institutions are also still required to have a grievance procedure that provides for the “prompt and equitable resolution” of student and employee complaints alleging any action that is prohibited by Title IX.  However, most schools will likely need to make significant changes to their grievance procedure to add a grievance process for sexual harassment that complies with the requirements of the new rule.

The grievance process for sexual harassment must treat the complainant and the respondent equitably.  The new rule, however, emphasizes providing a fair process for respondents more so than the Department’s prior Title IX guidance, which is a welcome change for advocates of respondents, but contributes to the feeling among victims’ advocates that the new rule will stifle reporting.  Institutions that do not already take the position in their grievance procedures that the process includes a presumption the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the end of the grievance process and requires an objective evaluation of all relevant evidence, should add statements to this effect to their new procedures.

Institutions must also set forth a standard of evidence that will be used in the grievance process to determine whether the respondent is responsible for the alleged conduct.  However, schools are no longer required to use the preponderance of the evidence standard as they were under Obama-era guidance.  This was one of the most controversial requirements of the now-withdrawn guidance, which some argued required too low a standard of evidence given the repercussions of an adverse determination.  The new rule takes the same approach as the Trump administration’s 2017 guidance and allows schools to use either the preponderance of the evidence standard or the clear and convincing evidence standard.  Under the preponderance of the evidence standard, the respondent is responsible for the alleged conduct if the decision-maker determines the allegations are more likely than not to be true, while under the clear and convincing standard, the decision-maker would need to determine that it is highly probable the respondent is responsible for the alleged conduct.  Schools must apply the same standard of evidence to all formal complaints of sexual harassment against students, employees, and faculty.  Schools likely have already selected a standard of evidence under the Department’s guidance but may want to revisit the decision because the same standard will be applied to Title IX complaints against employees under the new rule.

The school must follow its grievance procedure before imposing any disciplinary sanctions on the respondent or providing remedies to a complainant.  The school must also publish either the range of or a list of possible disciplinary sanctions and remedies that the recipient may implement following a determination of responsibility.  The Clery Act rules already require schools to publish a list of potential sanctions for VAWA crimes, so institutions will want to confirm they are meeting both requirements.

Additional requirements for the grievance process will be discussed in future articles addressing responding to reports of misconduct, investigations, hearings, cross-examination, and appeals.

Dissemination Requirements

Schools are still required to disseminate the nondiscrimination policy to applicants for admission and employment, students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the institution. Under the revised rule, however, the requirements for publicizing the nondiscrimination policy and the contact information for the Title IX Coordinator have been changed to require publication on the school’s website in addition to its catalog and handbook(s).  Schools should confirm that the nondiscrimination policy and Title IX Coordinator contact information are easily located on their websites and in required publications.  Further, merely publishing the information on a website does not meet the notification requirement; there must be a separate and effective method for notifying the various stakeholders listed above.

Title IX Coordinator (and Beyond)

Under the new regulations, schools are still required to have a Title IX Coordinator who oversees Title IX compliance efforts, serves as a point of contact for reports and complaints, and manages initial outreach to complainants. Schools also must appoint an investigator who conducts the investigations required under the new regulations.

The new regulations require separate decision-makers, who cannot be the Title IX Coordinator or investigator, for the Title IX hearing and the appeal. This is a change from past guidance, which permitted a single investigator model where the same person served, essentially, as the prosecutor and judge. While the Title IX Coordinator and investigator cannot serve as decision-makers, schools have discretion in deciding who can fill the decision-maker roles.

Title IX staffing considerations will be considered further in our next article.

Training

The new regulations establish training requirements for the Title IX Coordinator, investigator, decisionmaker, and any person who facilitates an informal resolution.  All materials used to train these individuals must be available on the school’s website.

The Title IX Coordinator, investigators, and decisionmakers must be trained on the new definition of sexual harassment, the scope of a school’s education program or activity, how to conduct a compliant investigation and grievance process. Additionally, training should cover how to serve impartially, avoid prejudgment of the facts in a complaint, and how to mitigate conflict of interest and bias.  The Clery Act also requires training on additional topics for individuals handling complaints about VAWA crimes, which are included within the definition of Title IX sexual harassment. To meet the Clery requirements, schools must also provide annual training to these individuals on issues related to dating violence, domestic violence, sexual assault, and stalking, and on how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability.

Decisionmakers also need to be trained on any technology utilized during a live hearing, which now may include teleconference platforms, and on issues of relevance of questions and evidence, including when questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant.  In addition, investigators must be trained on issues of relevance in order to create an investigative report that fairly summarizes relevant evidence.

To meet these requirements, schools will need to revise their Title IX trainings to include the required topics and establish a process for publishing training materials on their websites.

Record Retention

The new regulations set forth more specific guidance on how long a school must maintain records and what type of records must be maintained. A school must maintain records of each sexual harassment investigation, including any determination of responsibility and any recording or transcript of the hearing. Schools also must keep records of any appeals, informal resolutions, and training materials. Finally, a school must maintain a record of its responses to reports or formal complaints of sexual harassment; this includes documentation of a school’s conclusion it was not deliberately indifferent in regard to a complaint and any supportive measures a school implemented in response to a complaint. All of the required records must be maintained for a period of seven years.

The Title IX Coordinator is the logical person to be responsible for meeting these record retention requirements, because the Coordinator should be overseeing the execution of the grievance procedure and is responsible for identifying harassment trends that occur on campus.

Summary of Recommended Actions

  1. Ensure non-discrimination policy includes the required information (see above).
  2. Revise grievance procedure to include statements about the nature of the grievance process, a standard of evidence, and list possible sanctions and remedies.
  3. Confirm procedure for dissemination of required Title IX information to required stakeholders.
  4. Publish Title IX policy and contact information on website and in catalogs and handbooks.
  5. Confirm appointment of Title IX Coordinator; determine who will serve as investigator and decision-makers for hearing and appeal.
  6. Develop and provide required trainings or contract with a third party to provide required trainings.
  7. Develop and implement record retention procedures.

For additional information, read the rest of our series – Nine on IX:

  1. New Title IX Rule Limits Scope of Covered Sexual Harassment
  2. Updating Your Title IX Framework
  3. Title IX Staffing (coming soon)