There’s an Important Court Ruling and New Title IX Guidance re: Prior Statements…Now What?

August 27, 2021

 

On August 24, the Office for Civil Rights released guidance addressing the Department of Education’s enforcement of the section of the regulations (34 C.F.R. 106.45(b)(6)(i)) regarding the prohibition against statements not subject to cross-examination.  Specifically, OCR states, “in accordance with the court’s order, the Department will immediately cease enforcement” of that provision of the regulations.

 

The court decision, and the guidance, comes right as the Fall semester begins.  Your campus worked hard to have updated policies ready to start the Fall semester, is managing the expectations with surging COVID numbers, and is likely overwhelmed with having students return back to campus, and now, you have to navigate guidance and a court ruling that have an IMMEDIATE impact on the Title IX space.

 

We know this is yet another hurdle and adjustment to make, but it will make your life (and the lives of your decision-makers) easier in the long run.  Here are three quick and manageable action items in response to OCR’s new guidance to assist with your campus compliance efforts. 

 

1. Read OCR’s Guidance, Letter to Students, Educators, and other Stakeholders re Victims Rights Law Center et al. v Cardona. It explains the decision, and also the position of the DOE. In short, the exceptionally confusing portion of the 2020 Regulations that prohibited decision-makers from considering statements made by parties or witnesses who did not participate in cross-examination is no longer going to be enforced. Thus, statements made by parties and witnesses, regardless of whether they were submitted to cross-examination, may now be considered by decision-makers.

 

2. Remove the section, and any others that reference this provision of the regulations, from your policy. It’s that simple. Just take it out. Nothing else has changed.

 

3. Explain the change to your decision-makers, appellate decision-makers, and advisors for a few reasons. First and foremost, their roles are directly impacted by this change. Second, your decision-makers should already be trained on the regulations and that training would have covered this provision that was extremely difficult to implement in practice.  Most likely, your decision-makers will be relieved by this new development. Finally, expect that there will be challenges by parties or their advisors who are familiar with the regulations where this new development is not favorable for them in a case.  We anticipate that, in those situations, the issue will be raised and your decision-makers need to be informed not only of this change, but also the basis behind the change. 

 

We understand that this seems super simple.  Bottom line, for you, at this moment, it is! The path to get to this place was messy, the litigation was confusing, and even the guidance is a bit wordy, but right now, it’s just these three simple steps.

 

We see you Title IX Professionals. We know you are putting in the work. Keep it up!   

 

Count on ICS to keep you in the know about all the latest in Title IX. ICS provides a wide range of Title IX services, including its Community Access program (Higher Ed / K-12) and its live interactive trainings (Higher Ed / K-12). Contact us for more information.

Top 10 Things to Know about OCR’s FAQs on the Title IX Regulations

July 21, 2021

 

Yesterday, OCR issued the long-awaited FAQs on the Title IX regulations.  The Q&A on the Title IX Regulations on Sexual Harassment was issued in the wake of the Department of Education announcing its intent to revisit the Title IX Regulations, with a target deadline of May of 2022 for release of the proposed rule.  Despite the DOE’s revisiting of the regulations, and anticipated changes, the new 67-page Q&A is largely a recitation of the 2020 Title IX regulations (including the preamble) and simply highlights that the department intends to enforce the legally binding regulations as they were written until OCR is able to make formal changes. Thus, districts and institutions must continue in their compliance efforts under the current regulations for this academic year.

 

A few items of note:

 

1. The regulations still apply. The Q&A is reinforcement that the Title IX regulations still apply.  Thus, school districts and institutions should be ensuring that they are meeting the requirements of the regulations, including mandated training of their Title IX team.

 

2. Q&A is guidance. The Q&A is a guidance document, meaning that it does not have the force and effect of law as emphasized in the Q&A and therefore is “not meant to bind the public.”

 

3. Example policy language. The Appendix to the Q&A contains example policy language; however the “Department does not endorse these provisions in particular.”  Moreover, “[a]doption of one or more of the examples from this Appendix alone does not demonstrate compliance with Title IX.”  Regardless, this may be the most useful portion of the Q&A.

 

4. Application of the regulations pre-August 14, 2020. The Q&A states that the 2020 regulations are “not retroactive” and that a school must follow the requirements of the Title IX statute and regulations in place at the time of the incident.  Note there is case law that is not consistent with this interpretation.  It also acknowledges that OCR’s guidance documents were rescindened in 2020 but that they remain accessible “to the extent they are helpful to schools when responding to earlier allegations of sexual harassment.”  (Question 13)

 

5. Response to sex discrimination allegations. The Q&A addresses OCR’s expectations on how a school responds to complaints alleging sex discrimination that do not include sexual harassment allegations, stating “The 1975 regulations, which are still in place today, require schools to have a Title IX Coordinator to receive complaints of sex discrimination and require schools to respond promptly and equitably to such complaints.” (Question 64).  It therefore behooves schools to ensure that they have a clear understanding of how they will address sex discrimination and that the process is clearly outlined in its policies and procedures.

 

6. Statements by parties who do not participate. While the Q&A largely re-constitutes the regulations, there are a few areas that contain some interesting interpretations by OCR and/or reinforcement of some of the pain points schools have faced in complying with the regulations.  For institutions, note Questions 51- 54 regarding the treatment of statements by parties who do not participate in cross-examination in a live hearing, and an interpretation that the role of an advisor could be limited to questions drafted by their party in Question 43.

 

7. Title IX Coordinator signing a formal complaint.  The Q&A explains that the Title IX Coordinator MAY file a formal complaint even if the complainant is not associated with the school in any way.  Further, it says, “in some cases, a school may be in violation of Title IX if the Title IX Coordinator does not do so…”  Put simply, there are circumstances when a Title IX Coordinator may need to sign a formal complaint that obligates the school to initiate an investigation regardless of the complainant’s relationship with the school or interest in participating in the Title IX grievance process. This is because the school has a Title IX obligation to provide all students, not just the complainant, with an educational environment that does not discriminate based on sex.” (Question 24).  Note also OCR’s interpretation of “attempting to participate” for complainants. (Question 23)

 

8. When a respondent is no longer with the school.  The Q&A explains reasons a school district or institution may choose NOT to dismiss a formal complaint if the Respondent is “no longer enrolled or employed” by the school district or institution. OCR stated, “proceeding with the grievance process could potentially allow a school to determine the scope of the harassment, whether school employees knew about it but failed to respond, whether there is a pattern of harassment in particular programs or activities, whether multiple complainants experienced harassment by the same respondent, and what appropriate remedial actions are necessary.” (Question 27)

 

9. Notice.  The Q&A reinforces that employees of school districts are deemed to have actual knowledge that triggers a response by the district “if they are on notice of conduct that could constitute sexual harassment.”  There has been recent litigation on this issue as well. Bottom line, ensure you are training your employees on what may constitute sexual harassment, how they may be on notice of such conduct, and where to report.  ICS provides such training and has seen first hand that this is often overlooked by districts, but imperative not only to ensure your district complies with Title IX but also to ensure your district is providing a safe learning and working environment for students, teachers and staff.

 

10. Business as usual.  Other matters are addressed, such as how a school should determine how to investigate off-campus conduct and the appropriate length of time that a school should take for an investigation of a complaint, but they all generally mirror the regulations.  In short, there is little that is contained in the Q&A that we did not already know from the regulations and the preamble.

 

As Title IX professionals scramble to prepare for a return to in-person learning and working this academic year, and ensure that their compliance efforts are shored up, our advice is that Title IX Coordinators should continue the on-going efforts to be compliant with the Title IX regulations, revisit their policies and procedures to verify that their school is clear on how it will respond to sex-based harassment and non-Title IX sexual harassment, and adequately train and lead their Title IX team.  Our 2021 Refresher and Update Courses incorporate any new guidance, such as the Q&A, and I will be covering the Q&A and more in my Back to School:  What’s Next in Title IX webinar August 12th.  Register today! (Higher Ed / K-12)

 

Count on ICS to keep you in the know about all the latest in Title IX. ICS provides a wide range of Title IX services, including its Community Access program (Higher Ed / K-12) and its live interactive trainings (Higher Ed / K-12). Contact us for more information.

Title IX Regulatory Changes Forthcoming

June 24, 2021

 

The Department of Education has formally announced plans to issue a new Title IX regulation and indicated in an online regulatory database that it would publish the proposed rule in May of 2022. A reminder that the proposed rule is not the final rule, meaning that it will go through the comment and review period thereafter. This could put the issuance of the final, revised, Title IX regulations well into 2023.

 

We are hearing that FAQs will come from the DOE this Fall. We expect the FAQs to focus on discrimination based on sexual orientation and gender identity (“SOGI”); however, they may also have information regarding OCR’s expected enforcement of the regulations.

 

ICS’ advice remains the same: the 2020 regulations are still in effect and are law. Your school should continue to train in accordance with the regulations and comply with them through policies, procedures and implementing the formal Title IX grievance process.

 

Count on ICS to keep you in the know about all the latest in Title IX. ICS provides a wide range of Title IX services, including its Community Access program (Higher Ed / K-12) and its live interactive trainings (Higher Ed / K-12). Contact us for more information.

Keep Moving

April 21, 2021

 

Title IX professionals knew this was coming. We expected to hear that there would be significant changes yet again in the Title IX world…but that doesn’t make it any less overwhelming.

 

May 6, 2020 feels like just yesterday. We were all furiously combing through 2000-plus pages of the “new” Title IX regulations and preamble. We found ourselves scrambling to understand the new expectations, asking questions of OCR, and gathering as much information as possible to comply with the looming August 14 deadline. Teams were formed and trained. Policies and procedures were drafted and approved. Campus and school district communities were informed of these sweeping changes. It was an absolute whirlwind. But we made it!

 

Then, Title IX administrators were able to take a breath, albeit a short one, until the first reports started to trickle in. After receiving reports, Title IX teams have worked to provide appropriate supportive measures, distinguish Title IX behavior from other forms of sexual harassment, and move through a new and taxing formal grievance process…all during a pandemic. To say it has been a lot is a significant understatement. But again, we made it!

 

Now, here we sit in April 2021 with a new letter from OCR. This one directed to students, educators and other stakeholders, outlining a plan toward possible revisions through a new notice of proposed rulemaking. Feels a bit like déjà vu right? Honestly, it’s this constant shift that makes many people freeze, in a state of worry about what will come next, afraid to make a move because it may be the wrong one. Understandably so. However, we have to keep moving. And as I write this, I am singing to myself the lyics to the Matthew Wilder song—Break My Stride. For those unfamiliar, the chorus includes:

 

Ain’t nothin’ gonna to break my stride
Nobody gonna slow me down, oh no
I got to keep on movin’

 

It has become my 2021 motto. We truly just have to keep going. Staying informed on potential changes in the future is important, but moving forward under the current regulations is imperative. They are the law. Period. They remain the law until the law changes, and we as Title IX professionals are charged with helping institutions and districts remain compliant with the law.

 

So…how do you keep moving? Well, we’ve got you covered! Here are few tips to remain informed, have your voice heard on what is working/not working in the current process, and to remain compliant with the law as it stands.

 

Step 1: Operate under your current policies and  procedures We do not expect any permanent changes for at least eighteen months.

 

Step 2: Review what has worked under the policies you drafted for the August 14, 2020 implementation date Gather your team and discussed how the matters resolved. What worked well? What can be better? Use the summer to evaluate and update the policies to make them more user friendly for the 2021-22 academic year.

 

Step 3: Review the release from OCR (found here) It includes a link to the April 6, 2021 letter related to the direction the Biden Administration intends to move in the future.

 

Step 4: Use your voice at the Public Hearing (addressed in the press release from Step 3) This will help ensure that OCR understands the challenges that are being faced on the ground, from the Title IX Coordinators doing this work day in and day out. ICS will update you as we know more about how and when the hearings will occur.

 

Step 5: Support your team This work is HARD and can be exceptionally lonely. Make sure they feel supported. Hold each other up. Get lunch together. Enjoy time together outside of this work. It is important for sustainability.

 

Step 6: Don’t Break Your Stride, Nobody’s Gonna Slow you Down, Keep Moving! YOU’VE GOT THIS!

 

 

Need help implementing the above steps? ICS provides a wide range of Title IX services, including its Community Access program (Higher Ed / K-12) and its live interactive trainings (Higher Ed / K-12). Contact us for more information.

Lessons From LSU

March 26, 2021

 

Years ago, I wrote a blog on the lessons learned from one University’s high profile external investigation into its handling of sexual assault cases.  Five years later, in the wake of the LSU investigation, these lessons remain relevant.

 

Early March, Husch Blackwell released its investigation into LSU’s handling of sexual misconduct complaints, finding a serious institutional failure created by campus leaders who did not put the resources into Title IX compliance.  Specifically, the report stated that the Title IX office was not adequately staffed and was not provided the necessary authority or independence to effectuate its compliance mandates.  Sound familiar?

 

The result internally at LSU: lengthy unpaid suspensions and education for two prominent LSU officials in athletics.

 

For employees implicated who have since left LSU, Kansas terminated former LSU football coach Les Miles as a result of the findings in the report.  F. King Alexander, LSU’s former President, just resigned from his post as President at Oregon State amid the fallout from the LSU investigation.

 

In the last five years there have been many institutions that have been in the headlines for allegations of systematic failures.  Are institutions learning lessons from these matters?  And have the lessons changed, or do they remain the same?  My opinion: the lessons remain very much the same and institutions (and K-12, look for my next blog post) need to take notice.

 

Are times changing?

 

We have seen institutions build up large Title IX offices to ensure they have the resources necessary to meet Title IX obligations and effectively address allegations of sexual misconduct.  In many instances, however, the most robust Title IX offices are a result of a high-profile investigation/crisis.  Fortunately, in some cases, sweeping changes have been instituted in response to the findings of external investigators to bolster prevention efforts and compliance.  LSU demonstrates, however, that despite changes at some institutions, many remain who continue to take an ad hoc approach to compliance.  COVID has not helped matters with respect to funding but the fact remains that Title IX offices must be properly resourced, with appropriate authority provided to the Title IX Coordinator.  The new Title IX regulations have brought some of this to light; however, universities need to continue to take a close look at the structure of their Title IX offices, including appropriate support from institutional leadership.

 

Accountability

 

As I said in my interview with the Chronicle for Higher Education, the tolerance level for leadership who do not make addressing sexual misconduct on campus a priority is lower and lower, as it should be.  What we see with LSU is not only internal disciplinary measures with employees implicated in the report, but also two high level officials impacted at their new institutions who have ultimately lost their jobs.

 

Accountability at the highest level is tantamount and expected by the court of public opinion.  That starts with the President.

 

External Investigators

 

Attention to these high-profile cases continue to highlight the need to engage external investigators in certain cases, especially those involving an alleged culture of behavior.  External investigators who understand the university landscape, and will tell leadership what they need to know, not what they want to know, is imperative.  External investigators should be well versed in Title IX, VAWA and related federal regulations, trauma-informed and adequately trained and experienced in these types of investigations.

 

At the end of the day, LSU’s findings should encourage your institution to be self-reflective and self-critical in analyzing where it stands in compliance.  Learn the lessons now, instead of through trial by fire when a situation hits your campus, to ensure your students, faculty and staff have a safe living, learning and working environment.

 

ICS provides a full range of legal and consulting services for K-12 and colleges and universities.  These services include external investigations in complex matters implicating sexual misconduct as well as full scale program reviews.  Contact us for more information.