Putting Policy Into Practice Series: Blog Post 4

Smooth Transitions

 

September 23, 2020

 

It was clear from the May 6th drop of the 2,033 page preamble and Title IX Regulations that the practice of investigating and resolving Title IX cases would become substantially more complicated on August 14, 2020. We knew it. We expected it. Now we are living it. I must say this process is even more “clunky” than I anticipated. The movement of a case from one stage to another involves multiple team members who may be located in different locations and serving in numerous other roles on campus. This can cause frustration and confusion for students and employees who are participating in the Title IX process.

 

In order to put your students and employees at ease, smooth transitions have never been more critical. When I reference smooth transitions, I mean the hand-offs from intake to investigation, investigation to review periods, review periods to hearings, and hearings to appeals. These transitions must occur while offering effective and flexible supportive measures. This can be exceptionally confusing, frustrating, and overwhelming.

 

Creating smooth transitions requires extensive coordination and communication between your entire Title IX Team and can be implemented through three essential steps.

 

1.   Regular Meetings: Your team should be meeting regularly. These meetings should occur regardless of how many reports your institution or district receives on any given week, month, semester, or year. Create standing meetings on the calendar that are not moved or cancelled unless there is an emergency or significant conflict. The purpose of such meetings should include a review of the open cases, discussion of the next steps in each case and who is responsible for each step, table top exercises/case studies, questions regarding policy and process, and time to simply get to know and trust each other. Hint: Order food for your team, they will be excited to attend!

 

2.  Setting Expectations: Set and manage expectations for the parties and witnesses by clearly explaining the process. Flowcharts and visual aids can be extremely beneficial and will simplify the process into manageable segments. Consistent referral to the flowcharts and visual aids as the case transitions from one phase to the next will be exceptionally helpful for the parties.

 

3.  Identify a Point Person: Make sure each party has a “point person” to direct their questions and/or concerns. The parties may become confused about who they should contact for questions about supportive measures, investigations, hearings, violations of no contact directives, etc. If you can identify one staff member who will field questions and concerns and answer questions/connect the party with the proper team member, you will be able to limit confusion and create stability for the parties. This will prove vital when they are struggling through a complicated process.

 

Obviously, we will all get better at navigating the new regulations and new policies with time. But for now, practice is critical. Practice with your team. Talk it out. If it feels awkward for you, the parties will notice, and it will feel even more awkward for them. The only way to gain experience is to put in the work. By putting in the work and collaborating as a team, you can create smooth transitions to generate a process that is more manageable for everyone involved.

Putting Policy Into Practice Series: Blog Post 3

 

Language Has a Significant Impact When Dismissing a Formal Complaint

 

September 2, 2020

 

The Title IX Regulations are prescriptive regarding the situations in which a Formal Complaint MUST or MAY be dismissed. Sections 106.45(3)(i) and (ii) specifically define the provisions of such dismissals in the following manner:

 

Mandatory dismissal of a Formal Complaint or allegations within the Formal Complaint MUST occur if:

1) the conduct alleged in the Formal Complaint would not constitute sexual harassment as defined in § 106.30 even if proved;

2) the conduct did not occur in the recipient’s education program or activity; or

3) the conduct did not occur against a person in the United States.

 

Permissive dismissal of a Formal Complaint or allegations within the Formal Complaint MAY occur if:

1) a Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or any allegations therein;

2) the Respondent is no longer enrolled or employed by the recipient; or

3) specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination as to the Formal Complaint or allegations therein.

 

However, the practical application of such a dismissal is not quite so simple for the parties involved. The term “dismissal” can sound harsh or defeating to Complainants and encouraging or victorious to Respondents. In reality, this term is often a formality in the process and will not result in a complete “dismissal” of the matter. It is clear that in many cases, the dismissal of a Formal Complaint will merely result in a redirect from one policy/process (Title IX) to another (Code of Conduct or Non Title IX Sexual Misconduct).

 

The language used both in person and in writing to explain the transfer from one process to another is vitally important. A little finesse in the communication goes a long way when setting the tone and managing expectations.  For example, leading an email or conversation with the statement, “The Formal Complaint has been dismissed” may cause both parties to stop reading and get excited (Respondent) or infuriated (Complainant).

 

Conversely, beginning the dismissal conversation (and/or email) with a reminder that the institution or district takes matters of reported Sexual Harassment seriously, followed by the name of the individual and office where the matter has been referred BEFORE using the term “dismissal” can set the stage for a better understanding of the process. This little tweak will hopefully provide more trust and awareness from the parties as the matter progresses, while limiting the number of appeals based on the sheer shock of the term “dismissal” without a full understanding of the path forward.

 

In short, we must set the stage for the parties in the Title IX process. This cannot be achieved through flowcharts alone (though I love a good flowchart). We must use clear, direct, kind, and transparent language. For those of us who “speak” Title IX on a daily basis, this often requires having a non-Title IX colleague proof an email or listen to our verbal explanation of the process to ensure that we are using language that makes sense to someone who is unfamiliar with the policy/process.

 

This work is hard and can be exhausting, but the little things matter, especially when communicating about the process.

 

Putting Policy Into Practice Series: Blog Post 2

You Cannot Write or Train Your Way into Compliance

 

August 26, 2020

 

A common question we have received is whether attending our training will put a school or institution “in compliance with Title IX” and the new regulations.  My response is consistently as follows:

 

1.  Yes, our trainings comply with the new regulations and fulfill the training requirements in the new regulations for each role.  This is followed with the caveat that the regulations require training on technology for certain roles which we do not cover and training on your school/institution’s policies and procedures which we do not cover.  We also hammer this point home in our trainings.

2.  No, attending our training will not make you “compliant with Title IX” in general because compliance is much more than training.

 

Please understand, I am not downplaying the importance of your Title IX policy and your training.  Good training and a well-written policy are the foundations for compliance.  But a school or institution cannot write or train their way into compliance.  Training without effective implementation is not compliance.  Policies without effective implementation, including following what is contained in your policy, is not compliance.  Not to mention the myriad of other requirements in the new Title IX regulations outside of the formal grievance process and training.

 

Let’s start with your Title IX policies and procedures.  I do not want to underestimate the importance of a policy and procedure that is legally compliant and user friendly.  One that your school community can understand and that your institution/school can follow.  Your policy and procedure is the foundation to your Title IX compliance.

 

Once you have a good policy in place, training is tantamount.  Good, robust, training for your Title IX Coordinator, Investigators, Decision-Makers, and Informal Resolution Facilitators is not only vital, it is legally required.

 

Checking both of those boxes, however, does not make a school compliant with Title IX.  Effective implementation will require training your team on your policies and procedures, down to the minutia of each administrator’s role from a report of sexual harassment through the appeal.  The new regulations provide a prescriptive process; however, there are many steps within the process that allow for independent decision making.  Decisions such as:

  • If a Formal Complaint is dismissed, and the matter is referred to another department such as Student Affairs, how does that look for both your team and the parties involved?
  • Who sends the Notice of Allegations? Title IX Coordinator or Investigator or?
  • If informal resolution is offered, how does a matter transition out of the formal grievance process, and into informal resolution, and then back out again if needed?

 

August 14th has come and gone.  Everyone is weary from the rush to compliance, but the hard work is just beginning.  For Title IX Coordinators, a great start is regular meetings with your Title IX team to ensure a strong implementation of all facets of Title IX compliance.

Putting Policy Into Practice Series: Blog Post 1

Report of Sexual Harassment vs. Formal Complaint – Clarity and Transparency Matter

 

August 14, 2020

 

As Institutions and School Districts settle into life under the New 2020 Title IX Regulations with fresh policies and procedures, the work is just beginning. It is time to put those policies into practice.

 

While administrators work to get their teams trained, campuses and districts notified of the changes, websites updated, and forms created, one can only wonder what it will look and feel like when that first report of Title IX Sexual Harassment occurring August 14, 2020 or later is made.

 

Now, more than ever, clarity and transparency matter. The initial meeting by a Title IX Coordinator with a Complainant (and parent or guardian in the K-12 setting) is critically important.

 

Explaining the difference between a report of Sexual Harassment and the signing of a Formal Complaint is essential to allowing a Complainant to make informed decisions. The Complainant must fully understand the required response by an Institution or School District when a Formal Complaint is filed.

 

When a report of Sexual Harassment is made to an Official with Authority in the higher education setting, or any employee in a K-12 school district, response is required. Supportive measures and resources are imperative. However, once a Formal Complaint is filed, the Institution or School District MUST provide a Notice of Allegations to the Respondent. Such notice includes the name of the Complainant and details about the allegations, among other things. Thus, it is crucial that Title IX Coordinators are clear about this requirement on the front end.

 

This transparency can occur in multiple ways. First and foremost, a conversation. When initially meeting with a Complainant, a Title IX Coordinator should inform them of their responsibilities and the Complainant’s options, including the option to tell the Title IX Coordinator nothing except that they have experienced Sexual Harassment and need resources or support, which the Title IX Coordinator will promptly provide. It is also important for the Title IX Coordinator to explain that under certain (and hopefully limited) circumstances the Title IX Coordinator will sign a Formal Complaint. Those circumstances should be clear to a Complainant so that they may decide how their situation will be evaluated if the Complainant chooses to disclose their experience.

 

When explaining the option for a Formal Complaint, a Title IX Coordinator should clearly articulate that the first step in the process of a Formal Complaint will include notification to the Respondent of the Complainant’s identity and their allegations constituting Sexual Harassment. Then, the Complainant should be provided time to process this requirement and make an informed decision. A Formal Complaint document should not be pushed in front of them with a request for an immediate signature.  It is a big decision and starts a process that is difficult, if not impossible to walk back.

 

The second way to provide this transparency is through a webpage and proactive communication. Even before a Complainant enters a Title IX Office, they should know where to find their options and have the opportunity to review them.  Providing the ability to review a clearly articulated explanation of the entire process, but most importantly, the chain of events that must occur after a Formal Complaint, is key.

 

Institutions and School Districts should think hard before providing a link to submit a Formal Complaint before having the opportunity to fully explain the required steps that follow.

 

Bottom Line: There is a difference between a report and a Formal Complaint. The way such a distinction is articulated is important. Clarity and transparency matter.

 

 

Thoughts on the Litigation Challenging the New Title IX Regulations

July 21, 2020

 

We are frequently asked, “is there any chance that the August 14 implementation date for the new Title IX regulations will be pushed out due to pending litigation challenging the new regulations?”

 

The short answer to that is while not an impossibility, it is not looking likely. In addition, even if one or more of the four currently pending challenges is successful, it may only apply to the particular state where the enforcement deadline stay was issued. Institutions of higher education and school districts should be proceeding at this time with the expectation that the August 14 implementation deadline will remain.

 

There are four different lawsuits challenging the new regulations, all requesting certain portions of new regulations be deemed invalid for various violations of the Administrative Procedure Act, which governs rules that agencies must follow in promulgating new regulations. The lawsuits are all also requesting what is called a “preliminary injunction” – that the enforcement of the regulations be stopped – while the merits of the case on the alleged invalid portions are decided. For a court to issue a preliminary injunction, there has to be a likelihood of success on the merits of the case (i.e., a likelihood that certain provisions of the new Title IX Rule are indeed invalid).

 

The most notable of the four lawsuits was filed by the Attorneys General of 18 states (PA, NJ, CA, CO, DE, IL, MA, MI, MN, NM, NC, OR, RI, VT, VA, WA, WI, and DC). The case has been assigned to a judge who was appointed to the bench by President Trump. Furthermore, the Attorneys General of 15 states (TX, AL, AK, AS, FL, GA, IN, KY, LA, MS, NE, OK, SC, SD, and TN) have joined this case by filing a brief in support of The Department of Education’s new regulations. Based on the facts that the judge likely holds an ideology similar to the current administration and that nearly as many states are opposing the injunction as are supporting it, we are skeptical of the success of this challenge. This is the case that is moving along the fastest, with a hearing on the preliminary injunction scheduled for this Friday, July 24.

 

The Attorney General of New York also filed a similar lawsuit, in the Southern District of New York. While this case may have a greater likelihood of an injunction being issued than the above-discussed case, it would probably only apply to schools within the state of New York. The two other lawsuits (Know Your IX v. DeVos and Victims’ Rights Law Center v. DeVos) have had little substantive activity to date beyond the filing of the complaint.

 

For more information on this topic, tune in Courtney’s discussion with Jake Sapp in episodes 28 and 29 of The Law and Higher Ed podcast.