Title IX Updates

Key changes, context and where schools may still need help

• By Sarah Ford, Josh Whitlock
• February 01, 2021

Schools around the country are now required to comply with the Department of Education’s new Title IX regulations, which are massively impactful in the critical area of how to handle reports of sexual harassment. We are working with many colleges and universities who have made heroic efforts to overhaul their policies between May and August, all while struggling to contend with the operational, academic and financial crises occasioned by the coronavirus pandemic.

While the number of students currently on campus varies across the country because of COVID-19, sexual harassment can occur online as well as in person, and schools undoubtedly will still receive allegations. The Education Department has signaled that it will be robust in its enforcement of the new regulations. As schools shift from creating new policies to executing them, it will be useful to bring leadership teams together to review the key changes, put them into context, and discuss where Title IX coordinators will need institutional support.

Putting the Changes in Context

For all the commotion that the new regulations are causing, it is worth remembering the key things that remain unchanged. Sexual harassment, including stalking, dating and domestic violence and sexual assault, is a violation of Title IX. The role of the Title IX coordinator is to receive reports and manage the institutional response. And schools must still provide supportive measures to students and employees who report being victimized, regardless of whether those individuals wish to pursue a formal disciplinary process against the alleged offender.

In short, Title IX’s prohibition of sexual harassment – and each school’s commitment to protecting its students and staff – is not going away. But the disciplinary process will look dramatically different now.

Summary of What Is Changing

The new regulations consist of approximately 30 pages of dense legal language accompanied by a 2,000+-page preamble. Although the new regulations are complex, their overarching goals can be boiled down to two simple concepts. The first is a narrowing of the definition of sexual harassment from that employed by the Obama administration. Fewer forms of sexual harassment now fall within Title IX’s scope. What happens in local bars, off-campus apartments and study abroad programs, for example, typically will not trigger a school’s Title IX responsibilities. Even on-campus, expressive sexual harassment must be both severe and pervasive to constitute sexual harassment under the new Title IX regulations.

Given this narrowing, it is important to understand that the new regulations do not prevent schools from addressing and disciplining forms of sexual misconduct that fall outside of Title IX. Instead, schools may exercise discretion to address those forms of sexual misconduct as they wish, rather than being bound by the regulations (and accompanying highly formalized procedural requirements) that apply to the processing of Title IX complaints.

The second overarching goal of the rule is to build in more “due process” protections for respondents. These protections include formal written notice of allegations; enhanced opportunities to review and comment on evidence; and live hearings that include crossexamination of the parties, witnesses and investigators themselves. Absent exceptional circumstances requiring immediate removal, the respondent in a Title IX sexual harassment matter may not be disciplined in any way prior to being found responsible at the conclusion of a formal hearing.

The likely result is that fewer sexual harassment allegations will make it to a formal Title IX hearing. But that doesn’t necessarily mean that there will be fewer reports of sexual misconduct or, as discussed more fully below, that schools should ignore those reports.

Where Schools May Still Need Help

While all schools were required to implement the new regulations as of Aug. 14, getting new systems fully in place is likely to take months.

A top priority for every school will be deciding what to do with cases of unwelcome conduct that are no longer considered Title IX sexual harassment.

One option is to remove those cases from the Title IX Office and to send them to Student Affairs (or to Human Resources if the offender is an employee) to be addressed like any other disciplinary matter. Another option is to keep those cases in the Title IX Office and to adjudicate them in accordance with pre-August Title IX procedures.

Among our clients, we have seen a trend toward the second option, but the decision depends in large part on how smoothly a school’s Title IX procedures were working prior to the implementation of the new regulations. If the previous procedures were dysfunctional, directing “non-Title IX” allegations to Human Resources or the Office of Student Conduct may be a more appropriate choice.

Because the scope of the law has been narrowed, there will be fewer Title IX complaints that proceed through the stages of formal Title IX investigation and adjudication. But the formal requirements that apply to those complaints are sufficiently sophisticated that more schools will require the assistance of outside counsel to investigate allegations and hold hearings. Schools are likely to see more students (and staff) retaining attorneys to represent them in campus Title IX hearings, further incentivizing schools to have the hearings run by their own lawyers or at least staff members who have received extensive training and are comfortable in a legal environment.

Schools should also consider hiring outside counsel if an employee is accused of Title IX sexual harassment. The new regulations present schools with a set of thorny and unwieldy issues when it comes to applying both Title IX and employee-protection laws such as Title VII of the Civil Rights Act. A number of specific conundrums can arise (including some involving the special protections for tenured faculty), so schools would be wise to seek help in dealing with these issues.

The changes imposed under the new Title IX regulations are significant and may be onerous for schools to implement. But administrators should remember that more is staying the same than changing and that campus communities need reassurance that the school’s commitment to preventing and addressing sexual harassment remains intact. Schools may also find it valuable to partner with outside counsel to ensure their Title IX teams have the training and support that they need to comply with the new requirements.

This article originally appeared in the January February 2021 issue of Campus Security Today.