New Title IX Compliance

By Kathleen E. Dion and Sabrina Galli

 

Schools across the nation were required to comply with the new Title IX regulations by Aug. 1, 2024, and were undoubtedly given a lot to think about. As institutions continue to iron out new policies and procedures, they will need to balance a number of moving pieces. When trying to prioritize implementation, here is a list of top questions federally funded institutions should ensure they have answered.

1. Is the school’s Title IX coordinator up to date on all new regulations? The Title IX coordinator’s role has been greatly expanded by these new regulations, and it is of the utmost importance that such coordinators are aware of all changes.

For example, coordinators should be aware that the breadth of activities covered under Title IX have increased, such that the new Title IX regulations also apply to conduct that occurs in a building owned or controlled by a recognized student organization, conduct outside of the U.S. (for example, in study-abroad programs), and conduct subject to the school’s disciplinary authority. Additionally, coordinators should be prepared for an influx of complaints now that such complaints are no longer required to be formally in writing.

2. Does the institution’s Title IX policy include the expanded scope of sex-based discrimination? Under the new regulations, sex discrimination now includes “all forms of sex-based discrimination,” as opposed to only sexual harassment, based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. The regulations also prohibit discrimination based on parental, family, or marital status.

3. Have all necessary non-discrimination policies been drafted and finalized? The new Title IX regulations require that a notice of non-discrimination be provided to students, employees, applicants for admission and employment, and all unions and professional organizations holding collective-bargaining agreements.

Further, if they did not have a policy in place already, schools also must ensure that they have a policy prohibiting retaliation, including at the peer level, and that the policy calls for handling complaints of retaliation the same way it manages complaints of other forms of sex discrimination. The U.S. Department of Education has released helpful guidance on drafting such policies, which may be helpful to institutions as such policies are implemented and/or revised.

4. Is there a schedule or plan in place for annual employee training? Schools must annually train all employees on Title IX, their obligation as employees to address sex discrimination, and their reporting requirements. Different training is required for each of four employee statuses, pursuant to the following categories:

• All employees;

• Investigators, decision makers, and individuals with authority to modify or terminate supportive measures;

• Facilitators of informal resolution processes; and

• Title IX coordinator and designees.

Practically speaking, institutions will have to evaluate the best method for ensuring that the training reaches all employees. Schools may consider implementing mass Title IX trainings for employees or incorporating such training into other meetings or trainings that are already in place. For example, institutions may consider incorporating such training into pre-existing staff meetings to effectively reach all employees rather than imposing additional, separate training times wherein some staff may not be available or are reluctant to attend.

5. Did the school decide to implement an informal grievance process? The new regulations permit schools to adopt an informal resolution process for complaints of sex discrimination based on sex stereotypes; sex characteristics; pregnancy or related conditions; sexual orientation; gender identity; parental, family, or marital status; as well as for complaints of quid pro quo sexual harassment and Clery Act offenses for non-students. This informal process is less prescriptive and gives the investigator additional flexibility in facilitating the investigation.

6. Is the institution using a single-investigator model, and does it accomplish the school’s objectives? The single-investigator model allows the investigator to also act as the decision maker in the Title IX case. This means that they are not only conducting all of the interviews and collecting all of the evidence, but also assessing the credibility of all parties and rendering a decision as to whether a Title IX violation occurred.

First, institutions should confirm that the single-investigator model is permitted in their jurisdiction, as not all courts have allowed it. The single-investigator model has been critiqued for potential pitfalls in providing due process, but it also often has the benefit of efficiency and can be helpful given that the investigator is generally most familiar with all facets of the case.

Second, if the school’s jurisdiction does allow for use of the single-investigator model, then there are a number of questions to consider, including whether the institution wants to use said model, whether it will conduct investigations in-house or outsource, and whether parties will be permitted to pose questions to the decision maker.

7. Has the institution decided to use live hearings? Is that method working for the needs of the school? Live hearings, which were once required, are now permitted but no longer required. Schools can evaluate the use of a live hearing on a case-by-case basis. If a school has decided to use live hearings, has a decision been made on:

• What criteria will be used to determine whether to do so for each case?

• Whether live cross-examination will be permitted?

• Whether the school will provide an advisor to parties who do not have one?

Schools should keep in mind that, if they choose not to conduct live hearings, they still must allow parties to propose relevant and permissible questions to the other side and that investigators must record party and witness interviews, subsequently providing each party with an audio or audiovisual recording or transcript of said interviews with time to propose follow-up questions.

If schools decide to pivot away from the use of live hearings, evaluate whether the new process is working. Is the process more or less effective and/or time-consuming than the use of a live hearing? Does the new process affect the decision maker’s ability to reach an equitable result? It is common for new policies to include a bit of trial and error.

Overall, as institutions ensure compliance with the new regulations, it would not be surprising to see schools continue to revise policies based on how the new procedures pan out in practice. This is especially true given that the new regulations give schools more autonomy in deciding how to manage grievance procedures and related policies despite expanding the applicable scope of conduct.

With the new school year underway, Title IX teams should keep an eye out for how their chosen policies work in practice and consider any needed changes as the school year progresses.

 

Kathleen E. Dion is chair of the education industry team at Robinson+Cole. She represents private schools, colleges, and universities in a variety of civil matters, such as tuition disputes, allegations of staff misconduct, and Title IX matters. Sabrina Galli is a member of Robinson+Cole’s business litigation group and education industry team. She represents corporate clients in general commercial litigation matters involving breach of contract and business torts, as well as in arbitrations, mediations, and settlement negotiations.