New Title IX Religious Exemption Regulations

November 24, 2020

 

The Department of Education issued a new rule, effective November 23, 2020, that “codifies how an educational institution may demonstrate that it is controlled by a religious organization for purposes of Title IX, 20 U.S.C. § 1681(a)(3).” This new rule will be codified in the Federal Regulations at 34 C.F.R. § 106.12(c), and includes the following non-exhaustive list of factors that an institution may rely upon to demonstrate that it is “controlled by a religious organization” for Title IX purposes:

 

(c) Any of the following shall be sufficient to establish that an educational institution is controlled by a religious organization, as contemplated under subsection (a), and is therefore eligible to assert a religious exemption to the extent application of this part would not be consistent with its religious tenets:

(1)  That the educational institution is a school or department of divinity.

(2)  That the educational institution requires its faculty, students, or employees to be members of, or otherwise engage in religious practices of, or espouse a personal belief in, the religion of the organization by which it claims to be controlled.

(3)  That the educational institution, in its charter or catalog, or other official publication, contains an explicit statement that it is controlled by a religious organization or an organ thereof, or is committed to the doctrines or practices of a particular religion, and the members of its governing body are appointed by the controlling religious organization or an organ thereof, and it receives a significant amount of financial support from the controlling religious organization or an organ thereof.

(4)  That the educational institution has a doctrinal statement or a statement of religious practices, along with a statement that members of the institution community must engage in the religious practices of, or espouse a personal belief in, the religion, its practices, or the doctrinal statement or statement of religious practices.

(5) That the educational institution has a published institutional mission that is approved by the governing body of an educational institution and that includes, refers to, or is predicated upon religious tenets, beliefs, or teachings.

(6)  Other evidence sufficient to establish that an educational institution is controlled by a religious organization, pursuant to 20 U.S.C. 1681(a)(3).

 

Press release

 

Fact sheet

Putting Policy Into Practice Series: Blog Post 6

 

New Title IX Rules: OCR Does Not Require Retroactive Application, But Courts Might

 

October 26, 2020

 

As universities, colleges and schools worked diligently over the summer to put new policies and procedures in place by the August 14 implementation deadline for the new Title IX regulations, OCR released a blog on the retroactivity of the new regulations. Issued on August 5 and titled “The Title IX Rule is Effective on August 14, 2020, and is Not Retroactive”, the OCR blog said the following:

 

As schools plan and prepare for implementation of the new Title IX Rule, which is effective on August 14, 2020, the Office for Civil Rights (OCR) has received a number of questions regarding whether the Title IX Rule applies retroactively. It does not. OCR will enforce the new Title IX Rule only when it becomes effective, and will enforce the new Rule prospectively. 

 

Consistent with the Department’s statements in the preamble to the Title IX Rule regarding non-retroactivity, the Rule does not apply to schools’ responses to sexual harassment that allegedly occurred prior to August 14, 2020.  The Department will only enforce the Rule as to sexual harassment that allegedly occurred on or after August 14, 2020.  With respect to sexual harassment that allegedly occurred prior to August 14, 2020, OCR will judge the school’s Title IX compliance against the Title IX statute and the Title IX regulations in place at the time that the alleged sexual harassment occurred.  In other words, the Rule governs how schools must respond to sexual harassment that allegedly occurs on or after August 14, 2020.

 

And yet, Title IX practitioners are now faced with a contradictory court ruling issued October 16th by the Northern District of New York in Doe v. RPI.  This case concerns an event of alleged sexual assault that took place in January of 2020. Doe disagreed with RPI’s findings, which concluded August 11, 2020. His request for an appeal and challenges to the procedures to be used for his disciplinary hearing took place after August 14. As described by the Court in its October 16 decision, “Doe and his counsel, naturally interested in the new rules’ additional protections for students accused of sexual assault, spoke to defendant’s Title IX coordinator to request that the remainder of his investigation and his impending disciplinary hearing be conducted under the 2020 policy. Citing the OCR post, defendant’s Title IX coordinator responded that his hearing would follow the 2018 policy because the new rules were not retroactive.”

 

Doe objected to RPI’s continued use of its previously existing 2018 procedures for the disposition of his case and filed suit in N.D.N.Y, requesting a preliminary injunction preventing RPI from using is 2018 procedures. The Court ruled in Doe’s favor, saying that defendant RPI should use its new procedures for the remainder of Doe’s case.

 

In reaching its decision, the Court seemed troubled that RPI was choosing the administrative headache of maintaining two separate procedures – one for pre-August 14, 2020 cases and one for post-August 14, 2020 cases – particularly when the new procedures provide for more due process safeguards:

 

[RPI] decided that it would be best to maintain two parallel procedures solely to ensure that at least some respondents would not have access to new rules designed to provide due process protections such as the right to cross-examination that have long been considered essential in other contexts.

 

The Court also continued,

 

Such disregard for the inevitable administrative headaches of a multi-procedure approach certainly qualifies as evidence of an irregular adjudicative process. Similarly, the Court finds that a school’s conscious and voluntary choice to afford a plaintiff, over his objection, a lesser standard of due process protections when that school has in place a process which affords greater protections, qualifies as an adverse action. That is precisely what RPI did in this case.

 

Takeaway: We have been following OCR guidance in our own guidance to clients and Community Partners. Nonetheless, courts are not bound to follow OCR guidance. While OCR won’t penalize a school for using previous Title IX procedures to investigate alleged misconduct pre-dating August 14, a court might. And while other courts may reach a different conclusion, institutions subject to Title IX should carefully consider whether to maintain two separate policies for conduct that occurred before and after August 14, 2020. As a team we will be re-evaluating our advice going forward in light of this court ruling.  Bottom line, the Title IX landscape continues to shift and we will continue to be responsive to these shifts.

 

Need assistance implementing your new Title IX policies and procedures? Contact us for more information.

 

Putting Policy Into Practice Series: Blog Post 5

 

Perfection is NOT the Standard

 

October 1, 2020

 

Here we are, in the uncertainty of the year 2020, in the middle of a pandemic, and a month and a half into the work under new Title IX policies. This is different. This is hard. This is exhausting. But you, as Title IX professionals, continue to make a difference. Don’t forget it.

 

There is a lot of pressure in the Title IX world. Pressure to do it quickly. Pressure to do it right. Pressure to please everyone. Now, more than ever, it is important to remember that perfection is NOT the standard. You will make mistakes. Period. Those mistakes will not define you. However, the ways in which you respond to those mistakes are significant.

 

Take the time and effort to correct the mistakes.  Often we try to find the easy fix, or at least one that doesn’t highlight our mistakes. Conversely, the answer is in transparency.  Explaining a mistake and correcting it equitably is the key.  Send a new notice, update the parties, allow for equitable extensions, or do whatever needs to be done to make it right. Then, clearly articulate the next steps to the parties. This may delay the process, but it is better to correct the error in real time than to have to explain it on appeal or in litigation later.

 

We are all human, and the pressure is real. We need good, solid, humans doing this work. The kind who own their missteps but give themselves and each other some grace. The kind who believe in doing the right thing. The kind who build each other up and have each other’s back.

 

As you navigate these uncharted waters, remember that you are not alone. There are other professionals out there directing these processes alongside you while making similar mistakes. Pivot and correct in the moment, be a good teammate, and don’t be too hard on yourself. The Title IX world needs you.

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.