Title IX: Briefing on the Final Regulations Transcript

Title IX; Briefing on the Final Regulations

Alyssa Keehan: Good afternoon everyone, and welcome to our Title IX: Briefing on the Final Regulations. I'm Alyssa Keehan, the director of risk management research and consulting here at United Educators, and just want to thank you all for joining us today.
As you're probably aware, on April 19th, the US Department of Education released their much-awaited final Title IX Regulations that will govern how educational institutions conduct inquiries into allegations of sex discrimination. And since these regulations are set to take effect on August 1st, which is just a few months away, we know time is of the essence here, and that's why I'm so pleased to introduce our speakers for today's program.
Andrea Stagg is the director of consulting services at Grand River Solutions, where she oversees Title IX and equity support for higher education and K-12 institutions, as well as audits and compliance reviews, athletics consulting, accessibility and disability compliance, DEI initiatives, and Clery Act compliance solutions.
Before Grand River, Andrea served as in-house counsel at both public and private higher education institutions. But really, that's just a brief snippet of Andrea's experience, so I would encourage you to check out her full bio in the bio link. Thank you, Andrea, for joining us.

Andrea Stagg: Thank you so much for having me.

Alyssa Keehan: Also with us is Joe Storch. Joe is the senior director of compliance and innovation solutions for Grand River Solutions. In this role, he advises clients on best practices in Clery Act and Title IX compliance, and works to develop new products, trainings, and resources to assist higher education and K-12 institutions with their compliance response and prevention efforts.

Prior to joining Grand River, Joe served as associate counsel in the SUNY Office of General Counsel and chair of the Student Affairs Practice Group. He founded the Center for Advanced Research in Reducing the Impact of Violence in Education, and he founded and oversaw the SUNY Student Conduct Institute. Similar to Andrea, Joe's got a lot more great experience, so I would also encourage you to check out his full bio in the bio link. Joe, welcome to our program.

Joe Storch: Thank you, Alyssa. And thank you to you and the whole team at UE for inviting us. It's great to be here.

Alyssa Keehan: I've got a few housekeeping items before we get started. The ON24 platform that we're using here today allows each user to customize their view, so please feel free to adjust your view of the slide images and speakers accordingly. If you're having technical difficulties, you should send a message to the Q&A window, which is also a nice segue to my next point, which is there will be a Q&A with these programs in the briefing. But we'll be hosting another Title IX webinar in about a month where we will delve further into the regulations and answer your questions. So keep your eyes peeled for more information about that program.

Also, if you're with a UE member institution, you can use our risk advice service. Risk advice is a free service where members can submit their risk management questions on topics like Title IX, and our team of risk management experts will respond. To use that service, submit your question to risk@ue.org.

I also want to note that the PowerPoint slides and transcript from today's program will be made available soon. And lastly, I just want to encourage you all to please check out the resources tab where we've included a new publication from United Educators summarizing the changes in the 2024 Title IX regulations, as well as a few other resources from the Department of Education.

And now, I will turn the program over to our speakers. Joe, take it away.

Joe Storch: Excellent. Thank you, Alyssa. Great to be here with you and with my awesome colleague, Andrea, and you're going to hear from her in just a moment. Here we are, the moment we have all been waiting for, for many, many years. We are going to talk to you about high level findings from the 1,577 typed pages that the Department of Education dropped not just a few days ago. We are not giving legal advice, but we are helping you think about the things you're going to be needing to do with compliance. So you have lawyers. We are lawyers. We are not your lawyers, but these are some of the things that we'll help you think about when you are talking to your lawyers.

So officially published April 29th, the Department of Education reviewed over 240,000 comments on this rulemaking, separate from another rulemaking they are doing around athletics and Title IX, for which there were additionally over 100,000 comments. And we are going to be diving into many of the things that you will be looking at before August 1st.

Andrea, what should folks do, first steps as an action plan?

Andrea Stagg: I remember we used to have this slide last, and we said we need to move this up, because this is what people need to know. What should you be doing right now? If you only listen to the first five minutes of this session, which I hope you'll stay for the whole thing, message to your community if you haven't yet. I have seen already some messages that went out very quickly to communities acknowledging, yes, these rules were published. We are activating our stakeholder teams. Here's who's on that working group. Maybe it's a redo of the folks who were in it last time around in 2020.

They are preparing their timeline. Maybe you have a committee or a board that has to approve updated policies by a certain date and you're going to move backwards from when they meet next. Hopefully they will have an emergency meeting over the summer and their last meeting is not in May.

You're going to be revising those policies and procedures at least in draft form to prepare for August 1, and figuring out, hey, how do we want to structure this? There's a little more flexibility, which we're going to talk about and you need to think about, with those stakeholders, which may include students, which may include folks from faculty governance, exactly what that's going to look like.

You're going to identify the groups that need to be trained and how you're going to train them ahead of the year, not only all employees, but also the folks who are implementing your grievance procedures. There are some changes here and they're going to need to know how to do their job in compliance with the new regulations. So these are just some of the things to think about.

We acknowledge that it can be challenging during the shoulder season, and what I mean by that is when you're applying two procedures at once or two policies at once for incidents that happened before August 1 and for incidents that happened after August 1. And we're going to talk a little bit more about timing, but even socializing that with the folks who implement the policies and making sure they understand that there's going to be quite a time period where that's the case because we know that reports come in later for incidents that occurred earlier. And so just acknowledging with folks, the difference and making sure they understand which policies and procedures are going to be applying.

So Joe, can you start us off with this big picture?

Joe Storch: Yeah. In 2020, the Department of Education proposed regulations and there was essentially uniform opposition among higher education institutions to a number of elements that were then finalized. What I want to share with you is that essentially all of those elements that every higher education association and institution, right, left, and center, North, South, red, blue, they were raising uniformly have been addressed in these rulemaking.

So yes, this is additional work. Yes, there is going to be an additional change just a few years after making a change, but this is the change that many of our higher education institutions as well as many other stakeholders have been asking for. That being said, these regulations have not been met with uniform praise. There are a number of states and some activist groups that have already filed litigation, and that is something that we will certainly be keeping our eyes on as that litigation progresses.

So the biggest way that we have been thinking about the change is in the terms of a funnel. From the time that Title IX was passed, 1972, the regulations in 1975, every administration, Democratic and Republican, were trying to get as many cases into Title IX as possible. The top of the funnel was always wide as possible, and you saw that in the guidance that came out in 2001, 2011, 2014 for sure, as well as a number of other pieces of guidance that came out over the years.

At the same time, there was almost no process that was prescribed by the federal government. So we like to say the bottom of the funnel was exceptionally narrow. That might actually be wider than the bottom of the funnel actually was. You had to have a grievance procedure. What you have in it, well, that's your call.
In the prior administration, and this is not a subjective thing, this is what they were saying, they narrowed the top of the funnel. Only certain cases occurring in certain locations to certain people by certain people for which there was a formal complaint and it met all the standards would even get into the Title IX process. Everything else would fall off to the side, student conduct, HR, et cetera.

While the bottom of the funnel, the process prescribed by the Department of Education got wider than any single case had ever prescribed for any public or private college in the history of the United States. We had instantly the widest process required of any higher education institution ever in history of our country.

The new regulations that came out just a few weeks ago widened the top of the funnel beyond the wildest dreams of the 1970s, 1980s, 1990s, early 2000s. The number of folks that are covered by this, and you're going to be hearing some of this from Andrea and me as we go through, is wider than it has ever been.

At the same time, the bottom of the funnel, the process has been pared back a bit, but it is nowhere near what it was for 40 plus years of essentially no process at all. What I like to say is that the Trump administration knocked down the Title IX stadium and built a brand new stadium. The Biden administration, although some people called for it, did not knock down the Trump stadium. They re-striped the field. Instead of baseball, it's striped for soccer or football or something like that. So there are marginal changes while keeping most of the structure intact.

Andrea Stagg: The only thing I would add, Joe, is I like to say they also upgraded some other facilities.

Joe Storch: Sure.

Andrea Stagg: They re-striped the field and they upgraded some of their facilities because the scope of conduct that's covered is so much broader and we'll talk about that later.

Joe Storch: Right. So one of the big changes, and you're going to hear more detail about this from Andrea in a moment, the Trump administration concentrated on sexual harassment, sexual violence. The Biden administration is talking about discrimination on the basis of sex, which includes sexual harassment, sexual violence, no doubt, but it also includes a tremendous amount of additional conduct, conduct that for the most part has been covered by Title IX for five plus decades. But now it is all written together and put into these uniform buckets, the .45 bucket, the .46 bucket. That'll make more sense in a little bit.

And as Andrea mentioned, there's going to be a shoulder season where you're going to have different definitions that are applying. What the regulations are concentrating on is conduct that occurs after August 1st of 2024. They are not retroactive. So you might have a complaint that comes in about conduct that occurred July 25th and that will be handled somewhat differently than a conduct that occurred on August 2nd.

Andrea Stagg: If you were only going to know one thing about these regulations, I would say this is the slide for you, what's the big deal, what does this actually do?
So first of all, it creates a framework to respond to sex discrimination. Previously, that bottom of the funnel was really narrow. There was not a lot of procedure required for sex discrimination complaints other than sexual harassment. If you got a complaint that it seems like the women in my class are getting better grades than the men in my class, or it seems like the men in this department are not getting tenure and the women in this department all got tenure their first try, then that's a sex discrimination complaint.
And there wasn't a required process from the Department of Education about exactly what processing that complaint looks like or exactly what the response obligations are. Joe said earlier, you had to publish your grievance procedures. What was in those grievance procedures was really up to you.

And so many folks, post-2020, they had either a narrow Title IX policy covering just what's required by the Title IX regulations or a what I would call a Title IX and other sexual misconduct policy, which covers sexual harassment and sexual assault, domestic violence, dating violence and stalking that may fall outside of the narrow Title IX regulations as amended in 2020.
But sex discrimination, typically, in both of those circumstances, in both of those policy and procedural frameworks, sex discrimination would fall somewhere else. Sex discrimination that's not sexual harassment would fall somewhere else, maybe in a non-discrimination, anti-harassment policy, which also would cover any other protected category discrimination or harassment.
And those procedures would be whatever you want them to be. They may not say very much about it. There may not be an investigation report. There may not be evidence review. The investigator may be the decision maker. Whatever you have structured that as is what it looks like. It may not be a very detailed procedure. Okay, so I'd say that's one of the biggest changes is that this is about a lot more than sexual harassment and sexual violence.

The second thing is that it's not strictly limited by geography. The impact of the conduct matters, and we'll talk about that when we get into hostile environment analysis, which has changed. It also expands employee reporting obligations, maybe, unless your institution already says all employees have an obligation to report sex discrimination that they know about.
If you have that policy already, you're fine, but if not, there's some information you need to know, and we're going to talk about confidential employees and things like that. But it's possible that your practices based on your institutional values may already reflect some of these obligations. So it may just need some language updates or maybe not. We'll see.
These regulations require prompt and effective action to end sex discrimination and prevent its recurrence, remedying its effects. If you were doing this work 10 years ago, this language sounds very familiar. If you've read the 2001 guidance or 2014 or 2011, even 1997, I didn't mean to rhyme there, but all of this is familiar. We did not see a lot of that language in the current version of the regulations or in previous guidance on these regulations. So really changing the standard for what's expected from institutional response.
And then it really is consistent. These regulations are consistent with previous regulations, with previous preambles including the 2020 preamble, and with existing guidance since 1975 in a lot of ways, including that it prohibits pregnancy discrimination. And there are some other pieces where you will find that it's really not something new, but it may be stated in a different way or the language was updated to reflect modern language, and we'll talk about that.

A little bit on the history of Title IX. We're not going to go over the case law today, but we like to just show the trajectory so that folks can see, hey, this has been evolving over time. We started over in 1979 with the Cannon case, is there even a private right of action under Title IX? And here we are today, sets of regulations later, guidance issued, guidance rescinded and schools were just really trying to keep up.

And we know that UE members, what we tried to say when we got to meet with the Department of Education was folks want to do the right thing, but they need to understand what the right thing is. So we need these regulations to be clear. We need them to be consistent. We need guidance and technical assistance so that folks can do what they're supposed to do. You see how crowded the end of the timeline is with so much changing all the time.

But there's a lot that's not new, like I said before. Recipients since 1975 have been required to do a lot of the things that is being reiterated in these new regulations. You have to notify students about your non-discrimination policies. You have to publish your notice of non-discrimination. What that means, how you publish it and how widely, and the department's suggestions for how you publish it has evolved, but you've always had to have a non-discrimination notice.

You have to prohibit discrimination based on pregnancy or related conditions. The way they describe those conditions has changed. For example, they dropped the outdated language, false pregnancy, which appears in the current regulations as a related condition, does not appear in the new regulations once they're effective. Prohibits sex-based distinctions based on parental, family, or marital status. That's always been the case, it's still the case.

Prohibiting discrimination on the basis of sex in employment, which of course overlaps with other federal laws about employment discrimination, state and city local laws about employment discrimination. There's a lot of overlap that our institutions are dealing with, and we know that.

There's always been a requirement to balance equity with promptness. Is a response fair if it takes a really long time? And that's a challenge that we're always dealing with, especially when process becomes a little more burdensome. Balancing that equity with promptness has always been important.

So a little bit of what's out and what's in from 2020 and 2024. Out, narrowly defining sexual harassment. In, addressing broadly defined sex discrimination including sexual harassment. Signed formal complaints are going to be a thing of the past. Oral or written complaints are permitted by the 2024 final regulations. And schools must respond, their response obligations are triggered by oral complaints. So you can't choose to require a written formal complaint and say that you won't respond unless you receive one. That won't be permitted on, or after August 1st regarding those incidents.

Mandatory dismissals are out, permissive dismissals are in. There's still a dismissal process that folks can appeal the dismissal. Really, rigidity is by the wayside, which I know some folks have told me from institutions that they appreciate rigidity only because it makes it simpler to follow. And more flexibility is in, we'll talk about that.
Informal resolutions are now permitted at any time, not only after a formal complaint. The way we describe evidence has changed, and of course, live, direct cross-examination is really out. Now there's multiple paths to assess credibility and live hearings are not required, which is important, especially if you are a private institution.

All right, Joe, I know you're going to take us through the definitions.

Joe Storch: Sure. So one of the biggest changes I think has been something that's ping-ponged back a little bit between the last three administrations, which is whether or not discrimination on the basis of sex includes sexual orientation, gender identity, and gender expression. That is something that we will see litigation on, we are already seeing litigation on. In about half the states that is concomitant with their state law and about half the states that may be inconsistent with their state law, and we are going to see litigation on that.
The biggest other change we saw was a slight modification that is very, very meaningful to the hostile work environment as we have hostile work environment, quid pro quo, and the VAWA offenses. So Andrea for the sex-based harassment, it has to now meet five categories and we've got an and that became an or.

Andrea Stagg: Right, exactly. So in 2020, the regulations currently as amended in 2020 say that the conduct has to be severe, pervasive, and objectively offensive. Now we have subjectively and objectively offensive, and either so severe or pervasive, not and, that it results in a limitation or denial, not just a denial of someone's ability to benefit from or participate in the program or activity. So that is a change, but so many folks are already using that standard for some violation under their policies. It's just not their Title IX sexual harassment definition. It may be their non-Title IX prohibited conduct. The department also provides factors to consider in decision making there.

A little bit of updates on quid pro quo. The regulations make clear it's not just employees, but also agents or other persons authorized by the school to provide an aid, benefit, or service. So people always ask me, does that include students? And that's a fact-specific determination about a student employee that we'll need to make.

There is a discussion in the preamble about the word unwelcome. Quid pro quo has to be unwelcome. So if there is an agreement among the participants that it was welcome, you may still want to prohibit it anyway under some sort of ethical policy for faculty or about academic integrity and also a consensual relationship policy.

A little bit about the definition of a complaint. I know I introduced this already, but the signed formal complaint is no longer going to be required. There's no magic words. Someone's going to say something that is objectively understood by a reasonable person as a request to investigate. And of course you can confirm with folks in writing that I'm understanding that you want me to investigate this. Is that correct? And an informal process can begin before initiating a process.

Joe Storch: And Andrea, [inaudible 00:23:25]-

Andrea Stagg: A little bit more ... Oh, please.

Joe Storch: ... represent the formal complaint.

Andrea Stagg: Right. The [inaudible 00:23:30] are very formal, but you can also have an ... It doesn't need to be so formal anymore. We know that a signed complaint is sometimes a barrier for folks when they're initiating grievance procedures. So it's helpful to know that folks can enter into an informal or an alternative resolution process, as we often call it, without having to put their pen to paper, which I hope opens up that avenue for more resolution.

So the definition of a complainant and student are updated here. The definition of student is very broad, and I know that many associations gave feedback about this and asked the department to align the definition of student with the definition in FERPA. The department declined to do that for reasons that they discuss in the preamble. The definition of student is very broad, it's anyone who has admitted.

And a complainant can be a student, again, very broad, or an employee who's alleged to have been subject to conduct that could constitute sex discrimination, or anyone else who experienced sex discrimination covered by Title IX, and who was participating or attempting to participate in your program or activity at the time of the sex discrimination. They don't need to continue to be participating or attempting to participate at the time of their complaint or at the time that they say words that are reasonably understood to constitute a request to initiate grievance procedures as it were. It's only at the time of the incident, which for a lot of people I think makes sense, but that is a change from 2020.

We talked about the informal resolution change and we talked about one change, about the timing and the need to file a complaint beforehand, which is disappearing for 2024. There's a second change that we wanted to note for you here in that now, in the post-secondary context, you can offer informal resolution. You're not required to, but schools have the flexibility to decide to offer or approve informal resolution for allegations that include employees and students, where under the 2020 regs, the current regs, that's not permitted. What the department did was the new regulations say it's not permitted in the elementary and secondary context, but now post-secondary institutions have the flexibility to permit it.

No contact order clarifications. I won't get into the weeds here, but the preamble to these regulations indicate that non-mutual no contact orders actually are permitted now under the 2020 regs because they're not explicitly not permitted. And I think that folks read that differently. But the final regs for 2024 are very clear that restrictions on contact may be applied to one or more parties. So what they were really trying to do, it seems from the preamble, is codify any place where there's flexibility very clearly so that people understand where there's flexibility and where there's not.

Joe Storch: And Andrea, this is like many others, a good place to make sure your state law, because there are some state laws that have some pretty strong language around no contact orders and how they would like to see them being done.

One of the biggest changes, we foreshadowed this a few moments ago, was a clear statement that the Department of Education made. They made it in some published notice early this year that was enjoined in litigation by 20 states. And here it is now in notice and comment rulemaking that following the reasoning of Bostock and the other cases in the Title VII context, for the Title IX context, the Department of Education would interpret discrimination on the basis of sex to include sexual harassment and harms on the basis of sexual orientation, gender identity, and gender expression.

Again, this is already the subject of litigation filed by a number of states and organizations, but this is now codified in Title IX, and this is something that is a major change from the prior administration's approach and something we will continue to watch.

Andrea, there has been updates, but maybe not major substantive changes to a 50-year approach to not discriminating on the basis of pregnancy.

Andrea Stagg: You're absolutely right, Joe. It's really not so new, and then I would say that it's more been clarified. And depending on your state law, you already may be addressing some of the stuff that seems new, such as lactation space. So much that's in these new regulations very explicitly has been in Department of Education publications about the rights of pregnant students that have been published over the past couple of years.

So you need to provide reasonable modifications, voluntary leaves. If you offer a separate program, it needs to be comparable. And someone asked me the other day what that means, and I said it's more common in the K-12 context, offering these alternative tracks for education and they need to be comparable.

I'd say the biggest change here is the training that's required for all employees as a result of the response obligations, which is what we're going to talk about now. When a student informs directly any employee, I'm not talking about the employee overhears them throwing up in the bathroom, that's not what I'm talking about. When a student directly informs any employee of their pregnancy or a related condition, the employee must promptly give them the Title IX coordinator's contact information and inform them the coordinator can coordinate specific actions to help them to prevent sex discrimination, to ensure their equal access. That's pretty much what they have to say.

It can be a single conversation, it could be a written communication, and there's no record-keeping requirement. Department of Education was clear that pregnancy privacy is important and it matters. And so they took away the obligation to record-keep around these obligations. And they really, in addressing some concerns that were raised in comments about the Dobbs decision and access to abortion, the department said Dobbs is not about equal access to education. And if there's any policy of the institution that targets individuals who received abortion care for adverse treatment, that may be discrimination on the basis of sex because it's pregnancy or a related condition.

Other themes to note, Joe?

Joe Storch: Yeah, one of the major things is a reminder of the Violence Against Women Act amendments that are about 10, 12 years old. Now, we need to make sure that we are following those because you can follow both the current and the new Title IX regulations in a way that is consistent with the Title IX regulations, but not consistent with the VAWA amendments to Clery. So don't sleep on VAWA. Make sure as you're updating your policies, that it's consistent with VAWA and Clery.

The department includes a number of interesting examples in the preamble that can really be helpful as you make updates to your policy, and a call for us making our policy language and information more accessible. Many institutions know that I always encourage you to work with a graphics design department or a great art student or something like that. How can we make the content more accessible? Use visuals, make it so that folks can really access it.

So does location matter? In real estate, they say location, location, location. Well, it matters not quite as much as it did in the 2020 regulations. So the Department of Education has expanded a bit the location. Of course, we have program and activity, but we also have however far you go with the rest of your conduct process. So if you would take conduct action against somebody for hitting someone else with a bat 200 miles away, well, you have bought that coverage for Title IX as well. So that is something to make sure that you are consistent with the rest of your policies.
Andrea foreshadowed that there's some new language around the students and employees who are participating or other people who are participating and they have to be within the program or activity. We have now opened the door to plenty of other people, campers who are participating in our activities, parents who are coming to our major sporting events, townspeople who are coming to our institutional plays and theater. If they are subjected to any of the types of listed sex discrimination while they are participating in that program or activity, they would be included within this.

Now what about off-campus conduct? Well, I mentioned that the department interprets it now to include conduct that occurs that you would've taken action on under your conduct policy. We still have the limitation of within the United States, but there is a bit of touch on study abroad if the harm impacts the student back here at their home institution. So if an incident occurs in study abroad and that is limiting their participation at the home institution because the student who caused that harm is continuing to harass them or something of that matter, we would still have coverage for Title IX policy for a person who is harmed in the principal fashion on study abroad.
One of the things that frustrated institutions so much was the idea of the two-track policy. So little was covered by Title IX in 2020, remember that narrowing of the funnel, that so much got dropped into another policy, the sex discrimination policy, the conduct policy, whatever you called it. And a lot of us thought with the new Title IX policy covering so much, maybe that could be the universe and we wouldn't need a second policy. Not exactly.

We will still have some non-IX things, of course, things that principally occur on study abroad, things that occur outside of program activities for which you wouldn't take other action. There may be still some opportunities for a non-IX policy. So we will still be maintaining two-track policies, but the weight of where things would principally go has shifted significantly from predominantly outside of Title IX to predominantly inside of Title IX.

Andrea?

Andrea Stagg: Absolutely. Time to talk about ... I know we briefly mentioned 45 and 46 earlier, and this is what we're talking about. These are sections of the new regulations that outline the procedural requirements for different conduct and different people. And there are two. I would say that it's really that there's one plus some elements if it's a certain kind of complaint.
The .46 process has the additional elements, and it's everything that's in 45, but a little more. And that's only for cases of sex-based harassment as defined by these regulations, which I tell people sounds like, looks more like the Title IX prohibited sex discrimination or Title IX prohibited conduct. It's the quid pro quo, the hostile environment, sexual harassment, or the VAWA crimes.

So it's for sex-based harassment if a post-secondary student is involved. So if you have a stalking case between two employees, you can use the .45 process. But if there's a student as either party, student as complainant or respondent, you have to use the .46 process, which has some additional elements.

You should let folks know why different procedures will apply for resolving some or not all the complaints. You want to be clear in your grievance procedures about which type of violation is going where. And you can choose to simplify and to funnel all complaints under a grievance procedure that's consistent with .46 if you'd like to.

And one thing I've been talking to a lot of people about when you're thinking about going back to the action plan is .45, everything else under Title IX, are you going to put your other non-discrimination, anti-harassment stuff there? Are you going to put your investigation and adjudication for discrimination on the basis of race, religion, anything else, disability, national origin and shared ancestry? Are you going to put those under a process consistent with .45 or are you going to have a third process?

So that's just something to think about as you're reorganizing. And some of that may really have an impact on the way that you structure compliance and oversight of these areas because you may have some of those living in conduct, living in HR, living somewhere else. And so to house it all under Title IX, have the Title IX coordinator with ultimate oversight, may not be something that fits for you. So things to think about.

There is a lot of flexibility for the role of the coordinator offered in these regulations, but there is some specificity here about things like training, and coordinator-initiated complaints, and prevention, and the coordinators are still responsible for supportive measures. They have to avoid conflict of interest. So there's a lot codified in these regulations about the expectations for the Title IX coordinator. There also is an explicit reminder that a coordinator doesn't have to do everything themselves that they can delegate. They can designate others, although they are ultimately responsible for compliance.

And while I say they're ultimately responsible, and that's consistent with what these regulations say, truly the recipient is responsible. The institution is responsible, and part of that responsibility and obligation can be met by appointing and training and supporting a Title IX coordinator to do all the things that they are also required to do by these regulations. So ultimately, the institution is responsible for compliance and they must designate a Title IX coordinator who has to have the authority and the oversight to monitor what is going on, and to coordinate overall the institution's response to sex discrimination as a whole.

Joe Storch: So how does the Title IX-

Andrea Stagg: [inaudible 00:38:18]-

Joe Storch: Oh.

Andrea Stagg: Sorry.

Joe Storch: Sorry. Yes. So how does the Title IX coordinator find out about these harms that occurred? Well, under the notice of proposed rulemaking, it was an exceptionally complex process. Andrea put together this chart and I would see it, I would fall asleep. But luckily now that has been changed. We have a somewhat slimmed-down process that involves three types of employees. It's a little bit of an easier chart, but it is going to be quite a bit of training. Andrea's talked about the multiple different types of training you're going to have to do around pregnancy. You're going to have to do multiple types of training around sexual misconduct, sexual harassment reporting as well.

So we have a category of folks who have to tell the Title IX coordinator when they have learned about sex discrimination under Title IX or the regulations. We have another category of folks that the institution will have some flexibility. No, you must tell the Title IX coordinator, or yes, you must tell the Title IX coordinator, or yes, you must tell the reporting person about how to contact the Title IX coordinator and what the resources are.

Institutions are going to have some choice, give the choice to the employee, require the employee to do category one, require the employee to do category two. And of course, we will also have confidential employees. The department has done a little bit of work on making some more organization here. But note there are some real distinctions in how the department looks at

Title IX confidentiality and how the same department looks at confidentiality for Clery Act purposes as pastoral and professional counselors.

Confidentiality for researchers is something that many research institutions have asked for, and this is for faculty and staff who are conducting research on sex discrimination to be able to not have to bring that information forward as Title IX coordinators. We've already whispered about this for many years, now it is codified in the regulations.

There are significant training requirements. We've already touched on some of them, different types of folks who have to take different action in pregnancy, in sex discrimination. And then you have training requirements that have to be done for the coordinator, for the investigators, the hearing officers if you do a hearing, informal resolutions, the single investigators if you use that model.

Two big things to note. One, the training has to be completed, not, oh, we sent out a PowerPoint to everybody and maybe they looked at it, maybe they don't, is not going to meet it. And two, it has to be annual. In 2020, they said train in 2020 and it's good for the rest of your life, not so in 2024. They have aligned the training requirements with the VAWA-Clery training requirement, and it will be an annual obligation.

Andrea, some things are on their way out.

Andrea Stagg: Absolutely. No more requirement to post your training. You still have to make it available for public inspection upon request, but you don't have to give anyone copies. You don't have to keep updating your website, which is great. No return of the exclusionary rule. The NPRM brought it back. A lot of people didn't understand why, and so that was deleted. There's no record-keeping requirement relating to actions taken to meet your obligations under the sections relating to pregnancy. We talked about that. That's because of privacy concerns with doing such record keeping.

No more mandatory dismissals. They're all permissive. Formal complaints are no longer required or really even permitted. Your response obligations are going to be triggered by an oral complaint, indeed, and also a written complaint, but even an oral complaint. There are fewer barriers to informal resolution, which we talked about, and that may really have an impact on how many things are coming through those offices.

So all of that to say, here we go again. Is this like 2020? And I would say that it's not. We have a similar timeframe from publication to implementation, but last time we were in the early days of the pandemic, tests weren't available widely and folks were trying to figure out if and how they could open in the fall. There were tuition lawsuits and it was very challenging. Where are we now? I'm not saying that now everything is super peaceful on campus and easy, but it definitely is different. It's a different environment.

And I think not only is the timing different, but also, how big are these changes really? For so many private colleges, including where I used to work, the idea that we had to have a hearing was mind-blowing. It was totally different, how are we going to do that? Who was going to do it? How are we going to train people to do that?

So here we don't have that sort of cosmic shift in process, and folks can keep their processes pretty similar if they would like to, but they have some flexibility to make some changes and just updating their grievance procedures to match, to match the language more. But there is a lot of consistency already with past guidance and past regulations.

Joe Storch: Andrea, we close this slide with that there's lots to do, but it's a good time to lead. The department has given our institutions quite a bit of the flexibility that we had for many years, and we now understand what less flexibility around process is like. Our sense is that rather than waiting for the federal government to continuously dictate to us what process should look like and just waiting on them and then following them with process and policy changes, it's a great time for our great models and laboratories that we have at our colleges and universities to lead, to figure out the best ways forward, to figure out new practices and new ways that do things more efficiently.

Use innovation to better help students and employees go through the process so that we can do our part to slow the ping pong back and forth. And so this isn't just the time to comply. You have an opportunity to think about how you as an institution working with United Educators wants to take the lead in thinking about this.

We want to close by saying how grateful we are to United Educators for asking us. Grand River Solutions has a long history of supporting United Educators and working with our colleagues there on many, many projects. And to be able to get together this very, very quick response with Alyssa and all of you on here, it's a real privilege. We are grateful. We wish you all the best as you do some reading and make some policy changes. And we'll turn it back over to you, Alyssa.

Alyssa Keehan: Well, I think the pleasure has been all ours. Thank you so much, Andrea and Joe, this has been great. We really appreciate you sharing your Title IX expertise with us and your thoughts on these new regulations.

Again, I just want to highlight that we do have a few resources that our participants can check out in the resources tab on your screen. In that tab, we've linked to a new UE publication summarizing the final Title IX regulations, as well as some other resources. Additionally, the recording, today's recording, the PowerPoint slides and transcript will be posted to our website soon. So more information coming.

And then lastly, as I mentioned at the beginning of our program, we will be doing another Title IX webinar in about a month where we will take your questions and we will be looking a little deeper on some of these issues. So more information will also be coming soon about that program. And in the meantime, if you are with a UE member institution and you have a question about Title IX, you can use our free risk advice service by emailing your question to risk@ue.org.

All right, I just want to thank you all for joining us today for our briefing on the final Title IX regulations, and of course, a special thank you to our speakers, Andrea and Joe. This concludes our program.

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