The NPRM – Power in the Waiting

December 2, 2019 

The Department of Education is expected to release the new Title IX regulations in early 2020. The anticipation has left institutions in a holding pattern since November 2018, when DOE announced the proposed rules.  Institutions and school districts began to set aside policy drafting, and a bit of fear set in. Title IX Coordinators and administrators rightfully started asking, “How will we make the necessary changes to comply? How will this change the role of Title IX Coordinators? Will these rules impact the number of victims who come forward? How will we afford to fulfill these obligations?”

These are all valid questions, especially considering it is highly likely that the regulations will look substantially similar to those that were proposed.   It is an easy time get caught up in the worry of “what ifs” or to simply sit back and wait to see what happens.  However, there is power in the waiting. Since you know that there will be changes that you are required to make, now is the perfect time to have a fresh look at your Title IX process. The waiting period allows for an opportunity to reflect on what is working and what isn’t working on your campus.

This waiting period is a great time to map out your current process, including the phases (prevention, trend tracking, reporting, interim/support measures, investigation, adjudication, etc.), and the administrators involved in each phase. Evaluate whether you have the right people in each role and shift responsibility if necessary.

Pull out a campus map and mark all locations that a complainant would need to visit in order to make a report, receive support services, meet with investigators (including law enforcement if they choose), and participate in a hearing. Make the same map for a respondent. Then, consider whether the process and locations are consistent, convenient, and comfortable.

·       Consistent- Is the process similar for all parties?

·       Convenient- Are the locations accessible? Are the locations close together?

·       Comfortable- Are the locations as private a possible? Are there windows? Are the staff who greet the students inviting?

Next, look at the general language of your policy. Is the policy written for a student audience? Consider the policy from the lens of a student who has just experienced the trauma of an assault or received notice that they have been accused of sexual misconduct. Make sure that the policy is clear and comprehensible. If there are words and phrases that only attorneys would understand, try to find language to replace them.

If you have not already done so, consult with your campus attorney. It is mission-critical to have your institution’s attorney by your side through this process. Finally, don’t forget to keep your campus communications team in the loop. They will need to be prepared to publish and send out any necessary changes that you make to your policy and process, perhaps on short notice.

While the new regulations will certainly create chaos for you, this is an opportunity to make aspirational and/or necessary changes at your institution. Use this waiting period to improve the things you can and try to keep the worrying to a minimum.  You’ve got this. 

For a more in-depth discussion on setting policies and procedures, see The Law and Higher Ed Podcast, Episode 10. 

Blog by ICS’s newest team member, Senior Investigator and Consultant Betsy Smith. Betsy brings a unique skill set to the ICS team, having served as both a student affairs professional and an assistant district attorney. Most recently, she worked for five years as a Director of Student Conduct and Deputy Title IX Coordinator at a large state institution where she conducted and oversaw over 2,000 Title IX and other campus investigations a year.

ICS provides tailored training for Title IX Coordinators, Investigators and their teams.  Contact us today for more information about these and other services.