With the requirements under the 2020 Title IX Regulations, a good policy is critical to your compliance efforts. We know through the Office for Civil Rights’ published resolution agreements and corrective action plans for institutions who have undergone investigation by the Department, process is a key piece. Policies are reviewed by the Department to determine whether a district or institution is in compliance.
However, a good policy is about more than compliance. The ICS team knows through real, on-the-ground experience serving as Title IX Coordinators, Investigators, Decision-Makers, Advisors, and consultants, that a policy has to be WORKABLE. The policy must be easily understood for parties and witnesses, but also workable for members of the Title IX team.
While currently serving as an investigator in several Title IX matters, I can attest that a good policy is critical to my confidence level. Working with a confusing or voluminous policy requires that I have multiple meetings with the Title IX Coordinator, taking up precious time. For example, I recently spent a good amount of time trying to figure out how I was supposed to calculate “days” for review periods in an investigation I was handling. A simple designation as to whether business or calendar days are used along with a definition would have saved me time and a phone call to the Title IX Coordinator.
We have run into other, more serious, problems with policies as well. For example, if a policy is silent about the burden of proof, how will a decision-maker know whether a Respondent is responsible for what is being alleged? Among the key clauses in a good policy, there should be a clear outline of the procedure, accurate definitions based upon the requirements outlined in the Title IX regulations, information about the rights and responsibilities of parties and the roles of those on the Title IX team, and a clear burden of proof.
A good policy is simple and specific. It should be easy to follow but answer as many questions as possible. It should also be easily recited by the members of the Title IX team. A helpful litmus test to know whether you have a good policy is to ask the members of your team to explain the policy to you (and if they have a flowchart, they should get bonus points!). If they cannot do it in a relatively simple way, then maybe it is time to go back to the drawing board.
Blog by ICS Attorney and Legal Analyst Amy Buck. Her work since joining the ICS team last spring has included applying many different district and university policies through her numerous external investigations.
If you are not sure your policy is the best that it can be, ICS can help by reviewing or drafting a policy for you! Contact us at email@example.com.