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
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
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
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
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
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 & Life Safety.