Open in the Event of New Title IX Regs: What Your Institution Should Do As Soon As New Regulations are Issued

So, the day has arrived and the Department of Education has issued its long-awaited final rule implementing Title IX. Or at least, this is where you expect to find yourself any day now as the Department inches closer towards issuing new regulatory requirements for how colleges and universities respond to sexual misconduct. After you’ve made your mad dash to speed read the new regulations, we’d like to suggest our top five tips for getting through this period of regulatory change:

1.    Breathe. Remember that your institution has taken steps to comply with Title IX in the past and these new changes are part of that continued effort. Additionally, under the proposed rule (which we suspect will carry over into the final rule), only institutions that are “deliberately indifferent” to “actual knowledge” of possible sexual harassment will be found to be in violation of Title IX. This means that institutions are thereby granted a “safe harbor” if they (1) meaningfully respond to every known report of sexual harassment, (2) investigate every formal complaint, (3) follow the specific grievance procedures outlined in the final rule, and (4) in the absence of a formal complaint, offer and implement supportive measures to the complainant. These steps likely look familiar to your institution’s current response to a Title IX complaint. If not, you’ll want to immediately form committees and a Title IX task force to get your institution on-track for compliance.

2.   Identify the top priorities for immediate implementation. Based on the proposed rule, we’ve identified three: live hearings, advisors, and cross-examinations. A school’s grievance procedures must now provide for a live hearing. At the hearing, the decision-maker “must allow each party to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.” This cross-examination must be conducted by the party’s advisor of choice and, if a party does not have an advisor present at the hearing, the school must provide that party an advisor to conduct cross-examination. Cross-examination may occur with the parties located in separate rooms with assistance from video technology, so long as the decision-maker and parties can simultaneously see and hear the party answering questions. To the extent that your institution’s policies and procedures differ from the Department’s new requirements, we suggest putting these items at the top of your to-do list.

3.   Train staff members in mediation. The proposed regulations, and likely the final rule, permit informal resolution when both parties provide voluntary, written consent to the informal process, which can occur at any time prior to issuing a final determination regarding responsibility. Both parties must also receive written notice of the allegations, the requirements of the informal resolution process, and any consequences resulting from participating in the informal resolution process. Mediation serves as a valuable alternative to the formal complaint process because it empowers complainants and respondents to participate in the conflict resolution process, while also increasing the chances of all parties finding a favorable outcome. Neutral mediators play an essential role in this process and employing trained individuals for this important task is integral to the success of your institution’s informal resolution process. HMBR attorneys are available to serve as neutral mediators at your institutions while your staff members undergo training, or to supplement your staff members throughout the academic year.

4.   Know your jurisdiction’s Title IX case law. Okay, so this tip applies regardless of approaching regulatory changes, but it’s worth emphasizing now more than ever. Title IX case law in your jurisdiction will likely forecast some of the major trends applied in the new regulations, as well as highlight the important interactions Title IX has with Due Process, Equal Protection, contract law, and tort law. For resources analyzing key sexual harassment and sexual misconduct federal litigation in higher education from the past three years, please contact HMBR’s Higher Education Group.

5.   Communicate the regulatory change with your student body and reaffirm your commitment to nondiscrimination on the basis of sex. If the amount of public comments received by the Department for its proposed rule is any indicator of public interest, your students, employees and others in your community are likely monitoring publication of the Title IX final rule as much as your institution’s Title IX Office. Institutions should consider issuing statements that reaffirm their commitment to student safety and nondiscrimination on the basis of sex. Institutions will also want to highlight that reporting mechanisms and services provided on-campus will remain unchanged in light of the regulatory shift.

HMBR is available to provide assistance during this regulatory change, such as by serving as external investigators, hearing officers, student advisors, and mediators. Should you like assistance, please contact HMBR’s Higher Education Group at 312-946-1800.