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Important decisions for your campus to make now

On April 19, 2024, the Department of Education (Department) released the long-awaited final Title IX regulations (the Final Regulations), with an effective date of August 1, 2024. Except in those states where they have been imposed due to federal litigation, the Final Regulations require intensive work because each educational institution that receives federal funds must review its policies and procedures, revise them to meet the requirements of the final regulations, and train all employees on its campuses—all by August 1, 2024.

However, as of early July 2024, injunctions have been imposed against the final regulations in their entirety in ten states: Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia, and West Virginia, delaying the effective date of final regulations on indefinite time. At the very least, ongoing lawsuits can be added to the list of states where injunctions are being entered and the effective date of the regulations is delayed. The department has appealed the orders issued so far, meaning they will be reviewed by appeals courts and could be overturned. The status of the final rules is subject to change, and campus leaders should maintain close communication with advisors about the status of the final rules in their state.

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The final regulations are the result of a nearly two-year process, in which the agency received over 240,000 comments on draft regulations issued in July 2022. The final regulations, and the preamble explaining them, are more than 1,500 pages long and contain some important decisions which must be taken on each campus very quickly to ensure that policies can be revised and staff can be trained. As campuses grapple with the final regulations, below are some of the key decision points that all educational institutions must consider.

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Notification requirements

The final rules place a responsibility on institutions of higher learning to respond to a broader range of gender discrimination complaints than is required under the current Title IX regulations. Currently, Title IX regulations only require colleges to take action on complaints made to the Title IX Coordinator; if another campus employee learns of a gender discrimination complaint that is not shared with the Title IX Coordinator, the institution has no responsibility to respond to that complaint.

These requirements are amended under the final regulations. Every employee at a university has an obligation to respond in some way to a complaint of gender discrimination. Under the final rules, employees are divided into three categories for the reporting requirements:

  1. Confidential employees. There are three types of employees who may be confidential employees under the final regulations. First, employees who play a role on campus that entitles them to legal confidentiality privileges (eg, physician, psychologist, or member of the clergy). For purposes of Title IX, these personnel are “confidential” employees when they receive a complaint of gender discrimination while serving in the role to which the privilege applies. Second, under the final rules, institutions may designate additional employees as “confidential” employees for the purpose of providing services to individuals related to gender discrimination. For example, some institutions may wish to designate staff working in a sexual assault support center as confidential employees. Third, employees conducting research under an Institutional Review Board approved human subjects research study designed to collect sex discrimination information are confidential employees, but only with respect to information obtained during the study.
    • Confidential employees are not required to share information about any complaints of gender discrimination with the Title IX Coordinator. However, they are required to explain the following to anyone who reports a potential allegation of gender discrimination to them: 1) the circumstances under which they are not required to report complaints to the Title IX Coordinator; 2) how to contact the Title IX Coordinator and how to file a gender discrimination complaint; and 3) that the Title IX Coordinator may provide supportive measures, as well as initiate an informal resolution or investigation.
  2. Employees with the authority to take corrective action on behalf of the institution or who are responsible for administrative leadership, teaching or counseling within the institution’s educational program or operations. This category generally includes all teachers, administrators, coaches, academic advisors, and the like, basically anyone with a student-facing position.
    • Employees in this category must share reports of gender discrimination with the Title IX Coordinator.
  3. All other employees.
    • Once informed of potential gender discrimination, all other employees must either report the information to the Title IX Coordinator or provide the reporting individual with the name and contact information for the Title IX Coordinator. Under the final regulations, institutions have a choice to make regarding employees who do not hold student-facing positions. Institutions may: 1) require these employees, like employees in student-facing positions, to report any gender discrimination to the Title IX Coordinator; 2) require those employees to provide complainants with the Title IX Coordinator’s contact information; or 3) allow employees to choose whether to report to the Title IX Coordinator or forward the Title IX Coordinator’s contact information.
    • What should institutions consider when deciding what to require of their employees who do not hold student-facing positions?
      • Simplicity in training. If all employees are required to report to the Title IX Coordinator, the institution does not need to train some employees on one requirement and others on another requirement. (Although confidential employees will need to be trained in the requirements that apply only to confidential employees). Because the final rules also require training when an employee’s job duties change in a way that changes their obligations under Title IX, to the extent that an institution can require the same training of the largest number of employees, it will reduce their requirement to retrain employees who switch position.
      • Easy for employees to perform the requirement. Requiring an employee to either report to the Title IX Coordinator or for the employee to provide the contact information for the Title IX Coordinator provides a simple directive rather than relying on personal judgment.
      • Respect the independence of complainants. A campus that highly values ​​complainant autonomy and control over the process may want to require these employees to provide contact information only for the Title IX Coordinator. In this way, complainants who report to a non-student employee determine when and if the Title IX Coordinator will learn of their complaint and initiate an investigation.
      • Expected employee compliance. Some employees may be uncomfortable self-reporting to the Title IX Coordinator, which could put the institution at risk if the employee is required to report to the Title IX Coordinator but does not. Depending on the culture of your campus, compliance may be higher if employees are only required to provide the Title IX Coordinator’s contact information or if employees are given a choice between reporting to the Title IX Coordinator or providing the Title IX Coordinator’s contact information.

Investigators, decision makers and live hearings

The final regulations allow institutions to use the same individual (who may be the Title IX Coordinator) to act as both the investigator and decision maker in a gender discrimination complaint, as long as the individual does not have a conflict of interest. With this provision, the Department allows (but does not require) institutions to return to the single-investigator model where a single individual investigates allegations and also makes decisions about potential policy violations. In the commentary to the final regulations, the Department also explains that institutions may choose to use the single investigator model for some, but not all, sex discrimination complaints, as long as it specifies and publishes criteria for which procedures it will use for which types of complaint. The final regulations also allow institutions of higher learning to waive live hearings to resolve sexual harassment complaints, as required by current regulations.

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Institutions should consider the following factors when deciding whether to use a single investigator model or include face-to-face interviews on your campus.

  • What staff do you have available to serve? On smaller campuses, it can be very difficult to have enough trained staff to serve separately as investigators, decision makers, and appeals officers (if your campus offers an appeal). A primary reason the department went back to allowing the single-investigator model is to provide flexibility for smaller institutions to more easily comply with the rules.
  • Other existing laws. Some states have passed laws requiring live hearings on at least some gender discrimination complaints, limiting the options available to institutions in those states. In these states, the single-investigator model is also not available for complaints where a direct hearing is required. Likewise, at least one federal appeals court (the Sixth Circuit) has held that, for public institutions, live cross-examination is often required to follow constitutional due process, at least for sexual assault complaints.
  • Administrative concerns. Most campuses now have experience with the live hearing model required by current regulations and can assess how that process works on their campus. The cross-examination requirements under the final regulations when using the single-investigator model will require the investigator to interview the parties and possibly any witnesses at least twice and provide a transcript of the first interview to both parties in order to suggest any follow-ups. up questions. This process can be cumbersome and time consuming.
  • Accusations of choosing sides. Some stakeholders on your campus may see a decision on these points as a statement that either the campus is choosing to favor complainants by choosing a single investigator model and/or forgoing direct hearings (because a complainant does not need to be questioned by more than one person, or questioned in the respondent’s presence) or, on the other hand, choose to be pro-respondent by maintaining a process with separate roles for the investigator and decision-maker and/or including live hearings. Institutions should be prepared for these characterizations.

Conclusion

The final Title IX regulations provide additional flexibility on these and other topics for institutions to determine how best to meet their obligations under the Act. These elections are important to every campus and must be made quickly, given the August 1, 2024, effective date in those states where they have not been mandated.


Audrey J. Anderson is a consultant at Bass, Berry & Sims at its office in Nashville, Tenn. She represents colleges, universities and educational institutions in a range of matters arising from the activities of students, faculty and others in learning, living, teaching, research and working on a university campus. Prior to joining the firm, Audrey was vice chancellor, general counsel and university secretary for Vanderbilt University. Audrey also served in the Department of Homeland Security (DHS) beginning in 2009 and was Deputy General Counsel from September 2011 until leaving the Department in 2013. She can be reached at [email protected].

Note: The views expressed by guest bloggers and contributors are those of the authors and do not necessarily represent the views of, and should not be attributed to, Campus Safety.

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