Unpacking the Final Title IX Regulations, Part 1
Host: Hello, and welcome to today’s webinar, Unpacking the Final Title IX Regulations, Q&A With an Expert. Note that all attendees are in listen-only mode. Today’s program will be approximately 60 minutes long, though we will likely remain on the line for an extra 10 to 15 minutes to address additional questions. You can submit your written questions at any time during the webinar. Simply enter your question in the question box on the bottom of your screen and click submit. Your submitted questions will be visible only to the moderator. Webinar resources are available in the resources list to the right of the presentation. Please note that today’s program is being recorded. And now here’s today’s moderator, Hillary Pettegrew.
Hillary Pettegrew: Thank you, and welcome to all our participants. I’m Hillary Pettegrew, senior risk management counsel at UE. This webinar focuses on the final Title IX regulations released in early May by the Department of Education and due to become effective on August 14th of this year, which is, of course, an extremely short timeframe for institutions to come into compliance. UE is very pleased that today’s speaker is widely known for his Title IX expertise. Josh Richards is a partner in the Philadelphia office of Saul Ewing Arnstein & Lehr, and he’s vice chair of the firm’s higher education practice group. In recent years, he’s devoted a large portion of his practice to helping his educational clients achieve Title IX compliance. And he’s a nationally recognized expert on the regulations. Welcome Josh, and thanks so much for joining us today.
Josh Richards: Thanks so much for having me Hillary. I’m looking forward to it.
Pettegrew: In the first part of our program, Josh will highlight the provisions in the final regulations he considers most significant. And in part two, he’ll respond to your questions. We’ll address as many questions as possible, but we will not be able to get to all of them. We did receive quite a few questions in advance, and you’re also welcome to submit them throughout the program. The more concise the questions, the better. And because this program is intended to provide risk management guidance, not legal advice about specific situations, please keep that in mind when formulating your questions. Both the audio recording of this program and the slide deck will be posted on our risk management website, www.edurisksolutions.org, within the next week to 10 days. Registered participants will receive an email when they’re available. And with that, I’ll turn it over to Josh.
Richards: Thanks. So I’ll start with a brief agenda. We’re not going to be able to talk about every feature of the regulations today. There are a ton of individual obligations, and as everybody probably knows, there are thousands of pages of preamble. And so we’re really going to focus on the high points for about 45 minutes, and then we’ll have an opportunity for some questions. I’ll start with the status of the regs, and then I will go into the two sort of components of the regulations, which are broken down here a little bit more than that. The first component is really Title IX Jurisdiction: What kind of conduct triggers an institution’s obligations to respond under the rules identified by the federal government in the regulations? And that question is important because there’s a lot of conduct that might not trigger any obligation.
And we’re going to have a lot of discretion with how to address that conduct. And so, figuring out what triggers that obligation is sort of a first step here. And it’s really what the regulations are keyed off of.
The second big bucket is, once we have notice of conduct that would fall into the definition of sexual harassment because of the regulation, what do we have to do? What are our response obligations? And so, everything else just sort of flows from that. We have a hearing, we have an investigation, perhaps we have alternative resolution. So we’ll talk about all those things. At the end of the presentation, I’ll talk a little bit about some recommendations I have for implementing these regulations and the campuses, and then we’ll get to questions.
So what is the status of the regs? The final rule was released a couple of weeks ago, and it was published in the federal regulations on the 19th. We’ve had it for a little over a week and a half before that — the Department of Education having published this on its website informally on May 6th — and it’s very, very long. It’s more than 2,000 pages, double spaced. And when you converted into the CFRs, 550 typed, single-spaced pages. A very small percentage of that is regulation, but there is a lot in the preamble that you would never know if you simply read the regulations. And that I think puts us in a difficult situation because as we’re interpreting the regulation, we need to know what these words mean. And not to be overly critical, but the preamble isn’t ideally organized. It’s not particularly concise, and it doesn’t group things together in quite the way you might like. And so, it’s not always easy to figure out what our obligations are.
That said, I think we have these obligations, and they are going to be effective as of August 14th. The department has not indicated that it was going to give us any grace period with respect to implementation. It has been very clear that we don’t have an obligation to respond or to comply with the regs before the 14th. But we do have an obligation to comply as of the 14th. One thing that I’ve noted on this slide is that in addition to the Federal Register, OCR has started blogging about the rule, and the posts are mostly in response to things in the regs that are confusing, and they’re actually really useful. And so, I had the link in the slide and to the extent you want to take a look at that blog, I do recommend it. So, this slide just sort of illustrates the way that I think about the rule. And I think about it in this sort of hourglass shape. We had this prior definition of Title IX conduct that we were required to respond to.
And what the regs have done is they’ve really narrowed that definition. So, the conduct that requires a Title IX response is much narrower, but once you get through that narrow opening, our obligations with respect to what to do about that conduct, I think, have grown really dramatically in terms of the breadth of the department’s regulation and these issues and really the prescribed procedures that we have to follow in order to respond in a way that is not deliberately indifferent, which is, of, course our obligation.
So let’s jump in to Title IX jurisdiction. So when we talk about Title IX jurisdiction, we’re talking about not just the department’s jurisdiction to regulate Title IX conduct by institutions, but also the co-extensive obligation of institutions to respond to conduct that is within the scope that the department is regulating.
And there really are four pieces to that system you need to understand in order to know whether or not we have a response obligation. So the way that the basic building block of the reg is set up — and this is really the whole reg — if we have actual knowledge of sexual harassment in our program or activity that is against a person in the United States, then our obligation is to respond in a manner that is not deliberately indifferent. And all of these individual components are detailed and complex, but this is sort of conceptually the entire ball of wax.
So, let’s break down these parts individually. Actual knowledge. But before we get to the breakdown, this is just sort of a visual representation of this response obligation that we were just talking about. All of these pieces together sort of look like this. Conduct that fits into three of these circles, but not four or two and not the other two, isn’t going to trigger our Title IX obligations.
It’s only when it’s all four of these things, actual knowledge against a person in the United States within our program or activity and meeting one of these definitions of sexual harassment that we will have a response obligation. So, actual knowledge. And I want to talk about actual knowledge in the context of responsible employees, because this is how it’s sort of been thought, have been taught to talk about the circumstances under which we must respond when you become aware of something. And so, the way that we’ve sort of become accustomed to thinking about this, and if we knew or should have known, and often that knew or should have known came from some person in our programs and activities, a responsible employee who because a student either believes them to, or they actually had authority to, institute corrective measures, they were enough to put the institution on notice.
And that is a way of thinking that no longer really has any practical application in terms of institutional obligations. There’s no prohibition against still using responsible employees as a matter of individual institutional policy, but they really play no role at all in determining whether an institution has an obligation to respond to sexual harassment. All that matters is whether or not the Title IX coordinator or somebody with the authority to institute corrective measures has actual knowledge. And actual knowledge could come from a number of places. It could come from the person who experienced misconduct. It could come from a third party, it could come from reading a newspaper. It could come from a responsible employee. But just that responsible employee knowing something, that they have an obligation to report, isn’t going to trigger our response obligation.
All that’s going to trigger it is whether or not somebody in either the Title IX position or a position with that actual authority to institute corrective measures has knowledge. What are we you going to know when they have knowledge? Well, the second part of this is sexual harassment. Actual knowledge of sexual harassment in the program or activity against somebody in the United States. So, what is sexual harassment? Well, we have a brand new definition for this: This is no longer a question of whether a hostile environment has been framed on campus, which is another thing that we need to reform our thinking about. The Obama administration, and really going back to 2001, or 1998 even, the formulation was, what is the effect of the conduct? Does it create a hostile environment for somebody by depriving them of access to the program or activity? That’s not the focus of the regulation.
The regulation doesn’t focus so much on the effect as it focuses on the conduct. And so, what are the kinds of conducts that will trigger this obligation? There’s three. It’s quid pro quo, sexual harassment by an employee, violent crimes — so sexual assault, dating violence, domestic violence, and sex-based stalking — or this sort of definition that looks like the way we used to think about hostile environment, but it really comes from the Supreme Court’s articulation of institutional liability standards in the Davis and Gebser cases, which dealt with liability, civil liability for institutions under Title IX. And that definition is changed from the way that the Obama administration interpreted it from a regulatory perspective.
And so, we still have this concept of unwelcome conduct, but it’s both subjective and objective. It has to be subjectively unwelcome to the person who experiences it. It has to also be objectively severe, pervasive, and offensive, and that could get pervasive and severe is a departure. We used to have a definition when we had severe or pervasive, and the department has now clarified that to say, like in the Supreme Court cases of Davis and Gebser, it has to be severe and pervasive and to rise to such a level that effectively denies the person equal access. Before I move on from this slide, a quick note on this definitional switch. So quid pro quo and sexual assault and the other violent crimes aren’t subject to this analysis around severe and pervasive. They are de facto conduct that is sufficient to meet the definition for response obligation under Title IX. And severe or pervasive applied to anything that isn’t one of those other two definitions.
So, there is, I think, space in this definition for some narrow band of mostly verbal misconduct — because most of the physical misconduct is captured in sexual assault, dating violence, domestic violence, and stalking — verbal misconduct that previously would have been covered and now isn’t. But when you really drill down into what your institutions are taking real sort of formal resolution disciplinary action, again, as opposed to sort of instituting educational measures, I don’t think there’s a ton that we were formally dealing with in a formal way that doesn’t still fit in this definition. I think the big example in sort of a single instance of quid pro quo sexual harassment by a student against another student. So classic example would be, “Do X or I will tell your thesis advisor that you plagiarized your thesis.”
That is really serious misconduct. There’s no question we’re going to continue to address that in most cases that doesn’t fit this definition. It’s tough to come up with a lot of other examples of conduct that we’re really concerned about it. And so, I think that there has been a little bit of a strong reaction to this, and versus before. But I think that practice is unlikely to result in a lot of additional cases being put out of this process. But the other thing to think about is, to the extent that conduct doesn’t meet this definition doesn’t mean we can’t address it. And we’ll get to that later. But I think the idea is we’re not going to address it under the Title IX policy, but we certainly still have leverage, or we still have the opportunity to deal with it under some other institutional policy. And so it’s certainly not the end all, be all of our ability to address misconduct on the campus, just because it doesn’t meet this definition. And we’ll talk a little bit more about that later.
So, we talked about sexual harassment. We talk about actual knowledge, education program or activity. This is extraordinarily broad. It applies to all operations of the institution. And the department has been clear this also applies in circumstances where we have a recognized student group and that student group controls or owns physical premises where something takes place. That’s also going to be considered within our programs and activities. But I think the touchstones here are control over the context where the harassment occurs and control over the respondent. As noted, the regulation does apply to employees and they are a part of our program activities. So employee-on-employee conduct is covered.
In the United States is the last one. I don’t have a slide on that because it’s fairly straightforward. And the question is really if the conduct directed against a person within the United States. And what matters there is where the person who is experiencing that conduct is located. So, if they’re experiencing the conduct within your program or activity, but outside the United States, the statute isn’t going to cover that conduct. And so, some of the questions we just want to think about here is, given the narrowness of the definition, particularly around program and activity, because we’re now no longer looking at — does it have a continuing effect in the program or activity? We’re looking at, in what context did the conduct occur? There is going to be a relatively broad swath of conduct that we are going to want to address, and that isn’t going to fall into this definition. So how do we want to address that? And I’m not going to delve into that in this program today, but these are just a few examples of decision points that we’re going to want to think about.
So what happens once we receive the actual notice of some conduct that falls within those definitions that we just talked about? It’s sexual harassment within our program activity against a person in the United States. What do we have to do? Well, once we have notice to the Title IX coordinator or somebody else with the authority to institute corrective measures, we really have to do two things. We have to reach out to the complainant, who is the person who’s alleged to have experienced the conduct [inaudible]. And we have to one, offer them supportive measures. And two, explain the formal complaint process, how do you file a formal complaint seeking the formal resolution of this matter?
The supportive measures process is, it’s fairly prescriptive, and we’ll talk about that in a second. But I think what we need to emphasize here is once we get a report, can we do these two things? That’s all we have to do under the regulation. Our duties have been entirely discharged from the perspective of complying with the regulation of Title IX. We have essentially definitionally, not been deliberately indifferent if we do these things. And there are no more safe harbors in the regulation in the way that there were in the NPRM, but this is all we have to do. You reach out to the complainant, we offer supportive measures, and we explain the process. If the complainant files a formal complaint, we will have additional obligations. But if they don’t, our obligations are concluded — and it’s both proscriptive and prescriptive. It’s, here are the two things that you have to do, and you may not do anything else.
You may not commence a formal investigation. You may not start reaching out to witnesses. And so, it really does cover the obligations in that way. And then the second part of this I want to talk about is, well, what happens if they do file a formal complaint? What are our obligations? We talked a little bit about this already. You probably contact the complainant upon notice. We are obligated to engage in what actually sounds a lot like an interactive process with the section 504 or the ADA in which we consider the complainant’s wishes with respect of the supportive measures that are requested. Now, it doesn’t mean we have to implement all of the supportive measures. But we do have to implement reasonable supportive measures that are designed to restore access to the educational program or activity. But the department has imposed some significant limiting language about that.
And essentially what they’ve said is, in imposing any supportive measures, we cannot burden any other students’ access to the educational program or activity in a manner that is undue, under the circumstances. And so, essentially what this means is we cannot have rote, automatic supportive measures that are being imposed. We have to do an individualized analysis each time with respect to each requested supportive measure to determine whether or not supportive measures are reasonable under the circumstances, or if it burdens another student, is that burden reasonable? And that’s going to be a case-by-case analysis every time.
The supportive measures have to be listed under our policy in a range, and they cannot be punitive in nature. And this is really important because they’re essentially saying here is all supportive measures must be non-punitive. And you also have to list in your policy, all, the range of all potential sanctions.
And since we know sanctions are always punitive and we know supportive measures can never be punitive, the same thing cannot appear on both lists. So I think when we think through what sorts of things we want to use as supportive measures, we need to think through whether or not those are the sort of things that we might want to include in sanctions. Things that come to mind are limited participation in sports teams, limited participation in student activities like student government or the student newspaper, are those things that we may want to use as sanctions? And if so, I think we need to be very careful about including them as potential supportive measures, or at least be very creative in the way that we’ve listed these things in our policies.
That concept of the interim suspension is also basically gone. The idea of interim measures entirely is sort of gone. The way the department approaches this is you have supportive measures, which can be instituted for anybody, not just the complainant, but any party or even a witness prior to the final resolution. You have remedies, which are permanent things imposed, designed, to restore access to the complainant as a result of a final resolution. You have sanctions, which are disciplinary actions taken against a respondent. You only have interim measures and more as a category. And so, the exception to that is we still have something that sounds a little bit like an interim suspension, but basically it’s couched in this setting that sounds a lot like what we do in a threat assessment. In other words, if the respondent poses an immediate threat to health and safety on the campus, such that the physical health or safety of anybody is in peril, then we can remove them from campus on an emergency basis.
But this doesn’t apply to a threat to somebody’s emotional health or safety. It really is quite narrow. And in the event that we do this — and the threat has to relate to the allegations of sexual harassment —in the event that we do this, you have to provide an immediate opportunity for the person being removed to challenge the decision immediately thereafter. So we don’t have to provide a pre-deprivation chance, but we do have to provide a post-deprivation opportunity to appeal. That appeal process is not spelled out. It is not the same process that we apply sort of to the formal resolution and could be a lot less procedurally fraught. But nevertheless, this is going to be a high bar in most cases.
So, let’s assume that you provide information to the complainant. And if the complainant decides to file a formal complaint, what are additional obligations? Well, only the complainant can file a formal complaint — unlike actual notice, which can come from anybody’s report. The one exception to that is the Title IX coordinator can also determine to follow up on the complaint, but for a lot of reasons, I think that’s going to be a very rare circumstance. The rule around sort of repeat offenses for a single respondent and the Title IX coordinator must file a formal complaint, that’s all gone from the NPRM. So what we’re left with is if a complainant filed a document with the Title IX coordinator that’s in writing, could be by email, that’s signed, also could by email, requesting that the institution begin its formal resolution process, then we are off to the races and the full machinery of the institution’s Title IX resolution process gets started up.
The thing to keep in mind around the formal complaint is that we do have to sort of do this triage when the formal complaint comes in. And we have to look at it and say, “OK, do we have all four of the sort of initial requirements for Title IX jurisdiction? If we do, do we have a signed complaint from the complainant and the Title IX coordinator? And if we have that, do we also have a complainant who is participating in or attempting to participate in our programs or activities?” Where all of those things are present, then we can move forward with a formal resolution.
But if the conduct that’s alleged in the formal complaint wouldn’t constitute sexual harassment, even if everything that the complainant alleged were true — again, it didn’t occur in United States, didn’t meet the definition for sexual harassment, wasn’t part of the program or activity, or this sort of separate threshold jurisdictional issue of the complainant is maybe from another institution or they graduated many years ago and is no longer participating — if any of those things are true, we must terminate the grievance procedure with respect to Title IX. It doesn’t mean we can’t pursue it under some of the process, but we have to terminate it. And we have to document why we made that decision. We have to let both of the parties know, and we have to give them an opportunity to appeal our decision to terminate the procedure.
We also have a discretionary dismissal. If the complainant withdraws their complaint, the respondent is no longer enrolled or employed at the institution, or if we have sort of specific circumstances that prevent us from gathering evidence to reach a determination.
That third bullet point is not for the circumstances where we think, “Oh, these allegations are very non-credible. We think that it’s just not worth pursuing.” The question is, if it’s impossible for some reason to gather evidence, then we can dismiss. We don’t get to make a judgment about whether or not this is a case that sort of is worth pursuing. So I’m not going to talk a lot about the investigation process, because it’s really very similar to what we’re doing already. There are a few additional bells and whistles, but really where the rubber hits the road here is the hearing. So as has sort of been, I think, famously publicized, we must have live hearings to resolve these cases. The live hearing comes after investigation process with all relevant evidence gathered together.
The parties are given an opportunity to review all of that evidence, both in its raw form and in a comprehensive investigation report that summarizes all relevant evidence that was gathered as part of the investigation. The parties get a chance to respond to that report. And then we go through the process of the hearing. And throughout the process of the investigation as well, the parties have a right to the advisor of their choice, just like under VAWA, but now all Title IX matters. We have no discretion to limit who as advisors will be, although we can limit that advisor from any sort of speaking role. So potted plants rule still does apply to proceedings and to meetings. Although I think they’re a little bit ambiguous on that. What the department means here is that for all purposes, the advisor can be a potted plant except for purposes of cross examination, which we’re going to talk about in a second.
So at the hearing we have a decision maker, a hearing officer or a panel, and the core required feature of that hearing is that all evidence that’s presented must be subject to cross examination. And I think the way to think about advisor-directed cross examination is to just sort of do it in a series of principles that the department has articulated. And principle number one is that no evidence should come into the hearing that has not been subjected to the rigors of cross examination. Whether you think that’s a good idea or a bad idea, that was clearly what the department has identified as its core principle here. The second principle, the corollary principle, is that the parties are not allowed to directly cross examine each other. And the way that the department remedies the conflict between those two things when it arises is that they have an advisor conducting the cross.
But I don’t think that it’s quite right to think about the advisor necessarily as an advocate. I think certainly some parties will hire advisors who are attorneys who will act as their advocates, but I don’t think that’s what the department intends to be the obligation. I think the obligation from the department’s perspective is this just needs to be a person who isn’t the party, who’s doing the cross examination. And if you were to provide this person with the questions from the party, and they just asked them, at minimum, that would probably satisfy your obligations under the regulation, assuming training and all that good stuff. Now, if you provided an advisor who only spoke Mandarin Chinese and couldn’t communicate with anybody, that would probably fall below the obligation. But so long as you provided somebody who could effectively ask the questions in a party’s stead, that’s really what the department is after here.
So this hearing has to be conducted orally, directly, and in real time. And if one of the parties doesn’t show up with an advisor, we provide that person an advisor of our choice for the purpose of asking these questions that I was just talking about. Now, this does lead to some very strange results when you really follow it down the rabbit hole, because what happens if we know that all evidence has to be subjected to cross examination, one party doesn’t show up at the hearing — which by the way, no party can be compelled to participate in any part of this process or retaliated against for exercising their right to not participate. And so, if one party doesn’t show up, what happens to the cross examination of the other party? Well, the department thought of that and they said, “Well, if one party doesn’t show up, their advisor can show up. And that advisor can still conduct cross of the other party, not withstanding the fact that their advisee didn’t show up for the hearing.” OK, I guess. Well, but what happens if neither the party or the advisors show up? What then with respect to the testimony for the party who does? Well, the department thought of that too. What they told us is, “If that happens, we have to provide an advisor for the hearing to represent the empty chair, essentially solely for the purpose of cross-examining the party who does show up with respect to whatever evidence they have to offer.” The questions that person would ask, and who thinks of those questions, I’m not entirely sure. But the department has clearly indicated that this is the case. And by clearly indicated, it’s not in the regulation at all, but it is in the preamble.
So the other issue is that because cross-examination is required for all evidence to be considered, there is a complete ban on hearsay evidence that isn’t subject to cross. And what that means is, if a party or a witness gives a statement to the investigator or provides text messages or provides a medical exam, and the person who made the statement in the document isn’t there to be cross-examined, the hearing officer may not consider that evidence at all for purposes of reaching the outcome. This also leads to some very strange results. For one thing, admissions by parties engaging in bad conduct, or perhaps making a false accusation if it came to that, would not be admissible for the hearing officer to consider if the party doesn’t show up. And the fact that the party has sole control over whether you show up leads to some strange incentives there. The other thing to consider about this is that we talked a minute ago about that investigation report.
And that investigation report of course has to contain all relevant evidence gathered as part of the investigation. So, assuming that it does, it would contain those sorts of same reports and witness statements, which if not subject to cross, the hearing officer couldn’t consider it, but also would have to essentially unknow after having read the hearing report, but not having these people show up for the hearing with respect to making their decision, which is going to require some very careful training and some very deliberate outcome notification with respect to the hearing officer.
The only bar that evidence has to satisfy in order to be admissible is going to be relevant. And the way that the department envisioned evidence coming in is that a hearing officer will sit, hear questions asked by one side to the other, before the question is answered, make a determination based on relevance in real time orally, letting the party know, “Yes, that question is permissible.” Or, “No, that’s not relevant. And here’s why.” And then the party answers. Those determinations have to be made individually for each question that’s asked. The only exceptions for the relevance standard are that rape shield protections apply. So past sexual history is not admissible except for very limited purposes to show consent. A party can’t be compelled to waive a legally recognized privilege like attorney-client or doctor-patient privilege. And of course, the hearsay exception.
So that’s sort of the hearing. I think the department has made some things a little bit easier for us. There’s a lot of really positive language around the ability to have remote hearings, including all remote hearings, which satisfy the obligations under the regs so long as everybody can see and hear one another. So telephone hearings are not okay, but Zoom hearings with everybody in a different location, totally permissible.
Just a few notes on who these people can be, we saw a lot of opposition to the role that parties can play. The single investigator was objectionable because they might know things as part of the investigation that would make them not impartial as hearing officers. And so, the hearing officer cannot be the same person as the Title IX coordinator or investigator, although the Title IX coordinator can still … There doesn’t appear to be any bar to the Title IX coordinator acting as an investigator. No parties can have conflicts of interest, no surprise there. Although the context is because it’s not just conflict of interest, a bias against men or women, which is, I think, what Title IX is set up to prevent discrimination against the basis of sex, But complainants or respondents generally, or of course, as any individual parties in the case.
You have a very detailed requirements for outcome notification. I’m not going to go into the individual things in detail, suffice it to say this will be probably the subject of a best practice around forms for how to do outcomes following hearings. But this actually makes our lives easier in some ways and provides some protection from [inaudible] liability, given the thoroughness with which we have to identify the outcome and the reasons for the outcome. The department has inserted really strong confidentiality rules around disclosing any [inaudible] into the hearing to any third party. Essentially what they’re saying is, you can disclose things that are important to the hearing among the people who participate in the hearing under law.
But apart from that, unless you’re required to make a disclosure under law, you can’t disclose, for instance, that an employee was subject to one of these proceedings and found responsible, unless you have a state law requiring such a disclosure. And many of you will know that VAWA included a voluntary discretionary ability to disclose the identity of a respondent found responsible for criminal violence. My view is that that is now completely annulled in light of the fact that it’s not a required disclosure under law in this provision of Title IX expressing prohibits you from disclosing those things, unless it’s required by law. This is going to be very thorny and pernicious, I think, and will be the subject of a lot of additional conversation. We have to not only record and transcribe or transcribe our hearings, you have to keep records pertaining to all our decisions with respect to dismissal, appeal, and any sorts of determination as part of this process for seven years.
And those records have to be sufficient for us to demonstrate that we were not deliberately indifferent, which means, of course, that we followed faithfully the prescriptions in the regulation. Everybody involved has to be trained. And there are fairly straightforward topics for training required in the regulation. And all of our training materials have to be posted publicly on our website in order to be compliant. And that means that whoever trains your folks has to be agreeable to having their training materials posted on the website. I think it’s also . . . counsels in favor of thinking carefully about what sort of training tools we use. If we use recordings, we would have to post that because it is among all of our materials. And so, that to me raises some really significant concerns around the ability of folks to be candid during the sessions, if they’re recorded. And so, I think the way that institutions approach training in light of his posting obligation should be really deliberative.
Really briefly, I’m going to touch on the standards of evidence. We can use clear and convincing or preponderance, but we have to use the same standard across all Title IX sexual harassment resolution proceedings. So, it’s different than under the NPRM, which expanded that to all serious misconduct. The rule now is if we use clear and convincing for faculty, which is going to be the most usual situation where we’re going to have [inaudible] and they have to use it for all these proceedings. If we use preponderance for faculty, staff, and students, then that is completely consistent with the reg. We have to offer appeals both with respect to dismissal of a formal complaint and with respect to responsibility. Recall that we have those mandatory and permissive based [inaudible] for dismissing a formal complaint at the beginning of the process, that dismissal is subject to an appeal by both sides, as is a final outcome. We have three required bases, which are procedural irregularity, new evidence not reason to be available at the time, or bias. All three had to have an effect on the outcome. So trivial matters hopefully will be excluded. Those are required bases for appeal. We can use our own additional bases so long as they apply equally to both parties.
And the last thing that I’ll talk about from a substance perspective, I’ll not be going into detail, is alternative resolution. The department provides us with a lot of leeway to use alternative resolution in almost every case. The exception is that we cannot use informal resolution in a case where an employee has been alleged to sexually harass a student.
But other than that, once a formal complaint gets filed — and it must be filed in order to begin this process — the parties can essentially provide their informed consent and agreement to any alternative resolution process we want to use. Anything from educational processes to restorative justice, to a mediated outcome, to a different process. And one thing that I talked about it with some clients is, do we create a kinder, gentler, but still adversarial proceeding that is more streamlined. And if the parties want to agree to it, we can use to resolve this without attorneys, etc. So [inaudible], and we may see that respondents just refuse to participate in our process. But the point is, the world is our oyster. All the options are on the table. And this provides, I think, a lot of opportunity to provide a diversion from these really prescriptive and kind of wacky Title IX procedures that we have to use if we don’t use the [inaudible] resolution in the formal complaint.
I’m going to skip through the rest of these just so I have time to get to a few recommendations in implementation. As we think through what we’re going to do for the next 75 days or so until these obligations arise, I have four recommendations, none are particularly earth shattering, but I think it helps to sort of give it a structure for how we’re going to get into compliance. The first idea is let’s get a working group together, and we want that working group to have representatives from all the areas on campus that you really have to have buy-in and some say in this. And so, we have students, we have employees, we have faculty, we’re going to want outside counsel. I’m sorry, office of general counsel and potentially outside counsel, certainly Title IX in OIE, if you have one on your campus. But student affairs, student conduct, human resources, anybody from any organized labor on campus, you’re going to want all these people at the table.
The next thing that we’re going to want to do is gather all the materials that may need to be revised or considered, or that may affect this resolution. So, do we have CBAs? Do we have handbooks? Do we have state laws that deal with who can represent students in these procedures? Do we have state laws around standard of evidence?
Let’s get all those things in one place because those allow us to set up the bumpers around where our discretion is and help us start to think through what we want to do both with the Title IX process, to the extent we have any discretion, and with the other categories of misconduct that were formerly dealt with under a big Title IX process, and which now maybe we’ll deal with under Title IX and maybe we’ll deal it under some other process or procedure, depending on how we want to move forward with that other kind of conduct.
The next recommendation is to really start a communications plan with folks on your campus who need to weigh in. Does your board of trustees need to approve the new policy? Does the Office of the President need to communicate with your community about this? Does the faculty senate need to OK a new policy applicable to faculty? Do you want to have advocacy groups on both sides offer comments to this? Let them know you’re working on this. Let them know that there’s going to be a document and that it’s coming soon. And use those groups’ input and your own resources to develop a timeline. You need to have a final policy published on the website on August 14th. What is the date that you need to have a final, final to be approved in order to do that? What is the date that you need to have a mostly final for signoff internally? What is the date you need to have a solid draft for presentation to the faculty? What is the date you need to have a good internal draft for purposes of your working group?
Set those deadlines now. Tell the people who need to weigh in at various points in the process, “We’re going to have a draft policy to you, faculty, on July 17th. You will have 10 days to review it and return it. We apologize that it’s over the summer, and we apologize for the short timeline, but those are the parameters. And if you don’t weigh in, we won’t be able to incorporate the comments.” And get that communication started now. And get that timeline down on paper so that you know and have sort of a structure around your group’s work.
So, with that I think we’ve reached the point in your presentation. I will turn things over to Hillary so that she can facilitate some questions. So, thanks a lot.
Pettegrew: Thanks so much, Josh, for that really helpful overview. And for the rest of the program today, Josh will respond to audience questions. And we’ll get started right away. Here’s the first one: “An important issue to many campuses is how long these regulations might be in place. If Joe Biden wins the presidential election, would he actually be able to roll back these regulations quickly, as he appeared to promise, or would a new administration have to go through negotiated rulemaking and notice and comments all over again?”
Richards: So, it wouldn’t be negotiated rulemaking, but it could be a brand new rulemaking process with notice and comment just like the Trump administration just went through. And that process would likely take even at sort of lightning speed, at least six months. The other option is that the Biden administration, if it were elected, could just pass a law in Congress invalidating the regulations. But in order to do that, the Democrats have to win both the presidency and both houses of Congress. And so, I think that the reality is that barring a preliminary injunction with respect to the effective date, which only one lawsuit has been filed so far trying to invalidate these regulations. And it has not sought a preliminary injunction with respect to the effective date. But barring that sort of lawsuit we’re looking at probably in all likelihood, at least a year of compliance with these rules. It’s not impossible that it will be less, but I think the chances of it being less are sufficiently low that the risk of not being ready to comply on August 14th is really, really high.
Pettegrew: Thank you. Next question: “What if a party does not participate in an investigation? Do they get to review the evidence or participate in the hearing?”
Richards: So, that’s a good question. And I think the answer comes back to, a party has essentially an absolute right to participate or not participate. And my view is that it is likely that if we made some sort of blanket determination that if you aren’t going to participate in this first investigation, you can’t participate at all in the hearing, that would likely be viewed as retaliatory by the department. So, I suppose that we may see a trend of respondents not participating at all in the investigation stage and then just showing up for the hearing. I don’t think the reg really speaks to that and the preamble [doesn’t] really speak to that directly, but I do think that it would be somewhat risk-seeking to prevent that. And you would want to think about ways to structure your process to certainly incentivize that participation.
And if the respondent doesn’t provide any evidence during the course of the investigation, it may be that the respondent’s ability to be persuasive at the hearing is going to be impaired. And the hearing officer certainly won’t have lots of time to spend with unrebutted evidence from the complainant and maybe no matter what the respondent does at the hearing, it would be hard to push the hearing officer off of that position. But in the end, if the question is: “If a respondent didn’t participate in the investigation, can we say, ‘Tough, you lose?’” I think the answer is no.
Pettegrew: OK. Next question: “Can a university use an outside attorney, not their general counsel, as an independent decision-maker for live hearings?”
Richards: Absolutely. The department is very permissive in terms of who can serve in these roles and there is nothing in the rule that would prevent an institution from hiring an outside attorney or a retired judge or an arbitrator or anybody who they think would be uniquely qualified to serve as a hearing officer. And I think, honestly, it would be a really bad idea to pick somebody from the office of general counsel to do this because they have legal duties to the institution, but the limitation on serving that role really has to do with bias, not status.
Pettegrew: OK. Makes sense. We’ve gotten a number of questions in from people who are concerned about conflicts between the final regulations and specific requirements of their state law. So, could you just sort of discuss that generally?
Richards: Sure. And I think we have to distinguish a little bit between true conflicts and conflicts that the department would say aren’t conflicts at all. So, one example might be you have a CBA that says all of these employees use clear and convincing, and you have a state law that says all students must get preponderance. And the department says all students and employees have to get the same standard. I think they probably would say, “That’s not a conflict. You can comply with both the state law and the regulation. You just have to go back to your CBA and bring it up in bargaining and tell them, ‘This is how it is.’” If it is, in fact, a true conflict, what the department’s position will be is the supremacy clause trumps, and that if you have a choice between complying with state or local law, in order to comply with federal law, that you are required to comply with federal law and to the extent that the state law conflicts with the federal law, it is not valid.
Pettegrew: OK. Thank you. We’ve gotten a couple of questions along these lines: “So, would schools no longer be able to note on a respondent’s transcript if a formal Title IX complaint were filed against them, or if actual disciplinary action was taken?” I’ll sort of combine a couple in there.
Richards: So that’s an interesting question because I think that there is some tension between the department’s rule with respect to disclosures of participation in these proceedings and sort of state law rules about transcript notations, or even institutional decisions about transcript notations. And there is a discussion about this in the preamble. And essentially what the department says is, “You are not precluded so long as you list in your policy, in the list of potential sanctions, that there could be a transcript notation as result of a finding.” I don’t think that’s entirely satisfactorily resolvable with the disclosure language in the retaliation provision that I talked about. But the department clearly recognizes that institutions do that and there was no prohibition on doing so. I think if you’re going to do that you would just want to be very clear that that was a sanction that you were imposing.
And I think if you wanted to take it a step further and you decided that for purposes of providing records to transferee institutions or subsequent academic institutions that, that notation would always travel with the student’s file. I think that would be trickier but be worth thinking about in terms of whether or not you could make that a permissible sanction, I think you’d want to look hard at the rule and in consult with counsel in additional circumstances.
Pettegrew: Thank you. Next question: “Under FERPA we currently redact student names in investigation reports. Under the new regulations, are we no longer allowed to do that?”
Richards: I would say it depends. I think there’s no question that a party is entitled to know the name of the witness who provides information. To the extent you might be providing something to a witness, I think that that may or may not be permissible to redact, but I think there’s a strong presumption in favor of openness with respect to the people who are participating in the actual investigation. Now, redacting them for purpose and certainly of production in a civil litigation or something, that’s totally different. But for purposes of sharing it internally among the people who need to know that information in order to respond meaningfully to it, I don’t think that that practice is likely to be compliant.
Pettegrew: Thank you. Next question: “Do we need to have a formal Title IX complaint before we can do an emergency removal of a respondent?”
Richards: Just before I move on to that one, I want to move back one step and just make sure I clear one thing up with respect to the redactions. So long as you alerted all of the parties, if you want to redact and say “Student One” in your report, but then you told everybody involved who “Student One” was, that would also be fine. The issue isn’t the redaction so much as the nondisclosure of the person’s identity.
So, on emergency removals. No, you do not need a formal complaint in order to undertake an emergency removal. This is a situation where essentially you have actual knowledge that this person who you’re considering the emergency removal of may pose a threat to the physical safety of your campus. And I think as I mentioned briefly during the presentation, for all intents and purposes this mirrors a threat assessment analysis that you would undertake as part of a threat assessment team or a behavioral intervention team.
This is somebody who has demonstrated that they are a risk to have on campus. And so there’s no formal education needed, no formal complaint needed. You can just remove them as you would any other student who posed insignificant conduct risk to your campus.
Pettegrew: Thank you. Another area where we’ve gotten a number of questions, the jurisdictional issue that, for example, you cannot use your Title IX process any longer to deal with off-campus conduct or conduct occurring on, say, a study abroad trip. So, can you talk a little bit about how institutions might write their policies to handle those incidents?
Richards: Sure. Although that really is going to be institution-specific. I’m not, I don’t think, overstating things when I say what the department is saying here is, “If it meets this standard, you must do X. If it doesn’t meet the standard, we basically don’t care what you do.” And so there are any number of bottles that you could use to deal with that. I think some of the obvious ones are to say, “Well, how would you have dealt with this conduct before 2011? What was the institutional mission, what was the educational imperative that drove how you respond to this conduct before it became so heavily regulated? Might you just want to do that now?” Another way to look at it would be, well, we already have this under one roof. So let’s develop an umbrella policy that prohibits all sex-based misconduct. And for some subset of that misconduct we’ll apply Title IX procedures, and for the rest of it we’ll apply some other procedures.
Or for the rest of it we’ll provide the same procedures as we provide under Title IX, because we have so few resolutions anyway, it’s just simpler to have one process. We might also say, “We’re going to have this standalone Title IX process, and it will apply only to the cases where it has to. So we’re going to put everything else back into student conduct.” I think the options are really, or actually the permutations, are virtually limitless. I’m working with one institution that has decided that it’s going to use the Title IX definition for some purposes, but not for others. So conduct that’s severe enough to meet the sexual harassment definition, whether or not it occurs in a program or activity or in the United States or abroad, will all go in the Title IX process and everything else will go into student conduct.
So, you really can slice and dice it a number of ways. You can make those decisions the same with respect to students and employees, or differently with respect to students and employees. You could have a single investigation process that veers into different kinds of hearings, depending on whether it’s a student or employee. You have a really, almost limitless amount of discretion. And I think it is going to take a few years before best practices emerge of models that really work. We haven’t done it before. We need to sort of spend a year doing this and see what works.
Pettegrew: Next question: “Some institutions are in federal circuit courts that have held that Title VII trumps Title IX for employment matters. The Sixth Circuit is one of them. Should we follow the new regulations or the rulings from their federal courts?”
Richards: The federal courts address litigation of civil claims. I don’t think the federal courts have said that the Department of Education does not have authority to regulate employment under Title IX. There’s Supreme Court caselaw from the early ‘80s that says pretty clearly that it does. And so, I think what this question identifies is a problem with respect to defending against civil litigation risk in cases that implicate both. So, what if we have a case that constitutes Title IX misconduct, there’s a non-responsible finding. But there might have been a responsible finding under Title VII. If we don’t address the Title VII hostile environment, notwithstanding our outcome on Title IX, don’t we potentially risk being sued under Title VII for not addressing a hostile environment? The answer is, absolutely. And so I think institutions do need to think carefully about how their policies will interplay.
If the conduct that’s alleged meets the definition for Title IX, you have to have a Title IX resolution process. But that doesn’t preclude us from having subsequent or even coextensive resolution processes under different statutes. And Title VII is the easiest one to identify because it’s also sex-based misconduct. But what about sex-based misconduct that also includes an element of race motivation against a student with Title VI obligations, or what about if the sexual assault is motivated by disability status? So we have Section 504 and ADA obligations. There are a lot of intersections here that will cause the Title IX obligation to sort of steer the bus, but we’re going to have to get other obligations on board as well because the Title IX resolution may not solve all of the potential issues and all the liability that might arise out of the misconduct.
And so, while we’re sitting down with our working groups and thinking about how to structure our policies, we really do need to bring all of those ideas under the tent and figure out, if we set up our model in this specific way, where are the hanging chads going to be? What is the thing that we’re still going to have to resolve and how are we going to counter those?
Pettegrew: Thank you. Next question: “With regard to determining whether questions for cross examination at the hearing are irrelevant, does that have to happen live at the hearing?”
Richards: Yes and no. It does have to happen live at the hearing, but it doesn’t have to happen exclusively live at the hearing. There is nothing that prevents an institution from providing an option for parties to submit, for instance, questions or topics ahead of time for the hearing officer to say, “I’m going to find this relevant or I’m not going to.” We’re not required to do it. [Inaudible]. What we can’t do in sort of say ahead of time, “You can’t ask any of these questions.” But I do think that it will lead to a more civilized hearing if we can at least give indications of those things ahead of time, that way the hearing officer will have thought it through, the parties won’t be surprised. But when it comes down to it, are the parties still going to ask their questions and make the record? Absolutely.
Pettegrew: Next question: “Who should conduct the risk analysis for an interim removal and any hearing that would follow? Can that be the Title IX coordinator if they’re also the investigator?”
Richards: That’s a good question. The regulation doesn’t specify who makes that decision, other than that the recipient can do this. So the “should” in there is the tricky part. I think if you have a situation where the Title IX coordinator is also the investigator, there’s nothing in the regulation that directly precludes you from having the Title IX coordinator make that decision. Certainly they couldn’t be the person who hears the appeal. But in that situation, you might want to have somebody else make the decision just as a protective measure, a dean on the student side, or perhaps somebody in the student conduct office, or maybe even somebody, a vice provost or somebody like that. But I don’t think there’s a rule. And I think that would be an answer that would really depend on the staffing model at your institution.
Pettegrew: Thanks. And the next question: “Could you briefly discuss how the final regulations may impact higher education programming for minors on campus, and including policies we should review as a result of the changes?”
Richards: That is a really, really good question. And I think that raises for me a couple of things. One, how are we going to identify, in a really deliberate way, what the scope of our programs and activities are? So, when we’re thinking about the reach of our Title IX policies, what portion of what we do on campus may fall outside of that. So one example might be, if we rent out space on our campus to a wholly independent camp that is not run by one of our coaches or administrators, and they’re literally just renting our space, is that one of our programs or activities? That’s going to be an individual question depending on a lot of things, but a lot of our minors policies key off of those sorts of activities. When they’re looking at our minors policies, generally in our compliance program, what portion of those minors activities happen in our program or activity?
If they are within our program or activity and we have control over the context and the respondent then an allegation against a serial pedophile, for instance, would have to be subject to one of these procedures under 106.45, where among other things, there’s cross examination of all of the witnesses who alleged misconduct on behalf of that serial pedophile. Those are things that you’re going to want to think of ahead of time as you work through the implications of this on policy and how broad the scope is. It’s a great question. And I think it’s probably the subject of a full hour, but those are just a couple of things that I would think about.
Pettegrew: OK. Thank you. “What are your thoughts on advisors contacting witnesses for purposes of investigation and gathering information? Is that permissible?”
Richards: So I think you could, again, you can limit the role of the advisors. And I think that that would be a situation where you can say, “There’s nothing that we can do that would prevent a party from reaching out to individuals to gather evidence.” But if we wanted to, I suspect that we could probably limit the role of advisors, particularly if there was a specific concern around a specific advisor doing that. We can’t control who parties pick as their advisors, but we can control what advisors are allowed to do in terms of participation. I would have some concern about that. I would want to think about it in a more concrete set of circumstances, but that causes me some pause, particularly when you’re dealing with a situation where you have perhaps a faculty advisor and a student party, and the advisor is reaching out and requesting information. That doesn’t feel to me like a situation in which the student would feel free to act freely. So, that causes me some concern.
Pettegrew: OK. Next question: “Can a hearing officer cut off cross examination if they deem it abusive to an alleged victim?”
Richards: So this is a tricky question to answer in a vacuum. Solely because it’s traumatizing? No. Can we have rules of decorum that govern the proceedings so that somebody can’t be calling somebody names or saying things that are sort of intentionally hurtful or not in any fact-gathering purpose? Yes. So, this is really going to come down to setting basic rules of decorum and enforcing them. There is no question that the hearing officer has that authority and can exercise it. And I think the department has been fairly clear that if we have advisors who are conducting cross examination that are behaving badly, we can limit their participation in the proceeding. If we did that, we would have to provide another advisor or more likely provide an opportunity for the party to get a new advisor, meaning we may have to postpone the hearing.
Pettegrew: Thanks. Next question. A K-12 school just wanted some clarification that they are not required to conduct a live hearing between parties.
Richards: That is accurate. Post-secondary institutions are required to have hearings. Other recipients are not. And so, K-12 institutions, independent schools that are subject to Title IX don’t have to have a hearing, although they do still have a series of requirements around answering written questions, the opportunity for feedback, and that sort of thing, that sort of approximate cross-examination but are not a sort of full-dress formal live hearing.
Pettegrew: Thanks. I’m going to combine a couple of questions about investigations and the instigators and the extent to which the final regulations might have changed that: “Can investigators still make credibility judgments in their investigation reports and/or recommendations about outcome determination?”
Richards: Well, the reg doesn’t say that they can’t, but that seems outside their lane to me. Investigators have no role to play with respect to resolving credibility disputes, and they have no role to play with respect to determining liability. I think it would be risk-seeking to have them do that, notwithstanding the fact that the rule doesn’t explicitly say that they can’t.
Pettegrew: OK. Next question: “Aren’t there concerns that if the Title IX office adjudicates non-Title IX matters under the new definition in the regulations that a respondent’s counsel will complain, or the department itself might challenge that?”
Richards: I’m not sure I fully understand the question. The Title IX office is required to dismiss for Title IX purposes any misconduct that doesn’t meet the definition for Title IX misconduct. If an institution chooses to resolve that misconduct under a system in a procedure that looks the same, the department has explicitly said that they’re permitted to do that. And so, I don’t think that the institution runs much, if any risk from the independent determination that they’re going to resolve in this way. Certainly, there are other reasons that the respondent they would say this process is flawed. But I think solely because it looks the same as the Title IX process, no.
Pettegrew: I think we have time for one or two more questions. We can squeeze them in. This one is sort of interesting: “Do events like this webinar count as training that needs to be posted on the institution’s website?” It is different from sort of typical training materials that you would use to actually educate individuals involved in the process about their obligations.
Richards: That’s an interesting question. I think what the department probably means more specifically by that training is training that meets the obligations of the regulation. In other words, training on how to not be biased, how to draft thorough investigation reports, how to operate any technology that’s required, and those sorts of things. This training, obviously, isn’t [inaudible] attorney-client privilege, but nor do I think it’s really for the purpose of instructing institutions, how to conduct these investigations and more so is geared toward an explanation of how the right more broadly operates. I think you could certainly make an argument either way, but the obligation is to post training that meets the specific requirements in the regulation, not to post training that sort of talks in a generic sense about what the reg says.
Pettegrew: OK. And I think we can fit in one more question: “The person asks, who is covering the cost of external advisors and such? Is that the educational institution?”
Richards: Yes. What the regulation says is, “Must provide at no cost to the party.”
Pettegrew: That’s pretty clear then. Unfortunately, that’s all the time we have. Thank you very much to all our participants and a special thanks to our speaker, Josh Richards. We hope you found the webinar helpful. And remember the recording and slides will be posted soon on EduRisk Solutions. And if you did register, you’ll get an email about that. That concludes the webinar, and you may now disconnect.