Every employee of a higher education institution has an obligation to respond in some way to a complaint of sex discrimination.
On April 19, 2024, the Department of Education (Department) released the long-awaited final Title IX regulations (final regulations), with an effective date of August 1, 2024. Except in those states where they have been enjoined due to federal litigation, the final regulations require intensive work as every educational institution that receives federal funds must review their policies and procedures, revise them to meet the requirements of the final regulations, and train all employees on their campuses – all before August 1, 2024.
As of early July, 2024, however, injunctions have been entered against the final regulations in their entirety in fourteen states: Alaska, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Utah, Virginia, West Virginia and Wyoming, delaying the effective date of the final regulations indefinitely. Pending lawsuits may add to the list of states in which injunctions are entered and the effective date of the regulations are delayed, at the least. The Department has appealed two of the three injunctions issued to date, and is expected to appeal the third, meaning that the injunctions will be reviewed by appellate courts and may be overturned. The status of the final regulations is subject to change and campus leaders should be in close communication with counsel about the status of the final regulations in their state.
The final regulations are the product of an almost two-year process, in which the Department received over 240,000 comments on draft regulations issued in July 2022. The final regulations, and the preamble that explains them, run more than 1,500 pages, and they contain some key decisions that need to be made on every campus very quickly to ensure that policies can be revised and personnel can be trained. As campuses grapple with the final regulations, below are a few of the key decision points that all educational institutions will need to consider.
Notification Requirements
The final regulations place a responsibility on higher education institutions to respond to a broader range of complaints of sex discrimination than is required under the current Title IX regulations. Currently, the Title IX regulations only require colleges to take action as to complaints that are made to the Title IX Coordinator; if another campus employee learns about a complaint of sex discrimination that is not shared with the Title IX Coordinator, the institution has no responsibility to respond to that complaint.
Those requirements change under the final regulations. Every employee of a higher education institution has an obligation to respond in some way to a complaint of sex discrimination. Under the final regulations, employees fall into three categories for purposes of the notification requirements:
- Confidential employees. There are three kinds
of employees who may be confidential employees under the final
regulations. First, employees who play a role on campus that
entitle them to legal privileges of confidentiality (e.g., doctor,
psychologist or member of the clergy). For purposes of Title IX,
these personnel are "confidential" employees when they
receive a complaint of sex discrimination while functioning in the
role to which the privilege applies. Second, under the final
regulations, institutions may designate additional employees as
"confidential" employees for the purpose of providing
services to people relating to sex discrimination. For example,
some institutions may want to designate personnel that work in a
sexual assault support center as confidential employees. Third,
employees who are conducting research under an institutional review
board-approved human subjects research study designed to collect
information about sex discrimination are confidential employees,
but only as to information gained during the study.
- Confidential employees are not required to share information about possible complaints of sex discrimination with the Title IX Coordinator. However, they are required to explain the following to anyone who reports a possible claim of sex discrimination to them: 1) the circumstances under which they are not required to report complaints to the Title IX Coordinator; 2) how to contact the Title IX Coordinator and how to make a complaint of sex discrimination; and 3) that the Title IX Coordinator may be able to provide supportive measures, as well as initiate an informal resolution or investigation.
- Employees with the authority to institute corrective
measures on behalf of the institution or who have responsibility
for administrative leadership, teaching or advising in the
institution's education program or activity. This
category generally includes all faculty, administrators, coaches,
academic advisors, and the like, basically anyone with a
student-facing position.
- Employees in this category are required to share reports of sex discrimination with the Title IX Coordinator.
- All other employees.
- Once in receipt of information about potential sex discrimination, all other employees must either report the information to the Title IX Coordinator or provide the reporting person with the name and contact information of the Title IX Coordinator. Under the final regulations, institutions have a choice to make regarding employees who do not have student-facing positions. Institutions may: 1) require that these employees, like employees with student-facing positions, report possible sex discrimination to the Title IX Coordinator; 2) require these employees to provide those making complaints with the Title IX Coordinator's contact information; or 3) let the employees choose whether to report to the Title IX Coordinator or pass along the Title IX Coordinator's contact information.
- What should institutions consider in determining what they
should require of their employees who do not have student-facing
positions?
- Simplicity in training. If all employees are required to report to the Title IX Coordinator, the institution does not have to train some employees as to one requirement and others as to a different requirement. (Although confidential employees will have to be trained as to the requirements that pertain only to confidential employees). Because the final regulations also require training when an employee's job duties change in a way that changes their obligations under Title IX, to the extent that an institution can require the same training of the largest number of employees, it will cut down on their requirements to retrain employees who switch positions.
- Simplicity for employees in carrying out the requirement. Requiring that an employee either report to the Title IX Coordinator or that the employee provide the contact information for the Title IX Coordinator provides a straightforward directive rather than relying on personal judgment.
- Respecting complainants' autonomy. A campus that most highly values complainants' autonomy and control over the process may want to require these employees to only provide contact information for the Title IX Coordinator. This way, complainants reporting to a non-student facing employee determine when and whether the Title IX Coordinator will learn of their complaint and initiate an investigation.
- Employees' expected compliance. Some employees may be uncomfortable with reporting to the Title IX Coordinator themselves, which could put the institution at risk if the employee is required to report to the Title IX Coordinator but does not. Depending on the culture on your campus, compliance may be higher if employees are only required to provide the Title IX Coordinator's contact information or if employees are allowed to choose whether they report to the Title IX Coordinator or provide the Title IX Coordinator's contact information.
Investigators, Decision-Makers, and Live Hearings
The final regulations allow institutions to use the same individual (who may be the Title IX Coordinator) to act as both investigator and decision-maker on a complaint of sex discrimination, as long as the individual does not have a conflict of interest. With this provision, the Department allows (but does not require) institutions to return to the "single investigator" model in which a single individual investigates allegations and also makes a determination as to any policy violation. In the commentary to the final regulations, the Department also explains that institutions may choose to use the single investigator model for some, but not all, complaints of sex discrimination, as long as it specifies and publishes criteria for which procedures it will use for which kinds of complaints. The final regulations also allow higher education institutions to dispense with live hearings in deciding complaints of sexual harassment, which are required by the current regulations.
Institutions should consider the following factors when deciding whether to use a single investigator model or include live hearings on your campus.
- What personnel do you have available to serve? On smaller campuses, it can be very difficult to have a sufficient number of trained personnel to serve separately as investigators, decision-makers and appeals officers (if your campus offers an appeal). A primary reason the Department went back to allowing the single investigator model is to provide flexibility for smaller institutions to more easily comply with the regulations.
- Other existing laws. Some states have adopted laws requiring live hearings on at least some complaints of sex discrimination, which limits the choices for institutions in these states. In these states, the single investigator model also may not be available for complaints for which a live hearing is required. Likewise, at least one federal court of appeals (the Sixth Circuit) has held that for public institutions, live cross-examination is often required to comply with constitutional due process, at least for complaints of sexual assault.
- Administrative concerns. Most campuses have experience now with the live hearing model required under the current regulations and can assess how that process is working on their campus. The cross-examination requirements under the final regulations when using the single-investigator model will require the investigator to interview the parties and possibly some witnesses at least twice and provide a transcript of the first interview to both parties to allow them to propose any follow-up questions. This process could be cumbersome and time consuming.
- Allegations of choosing sides. Some stakeholders on your campus may view a decision on these points to be a statement that either the campus is choosing to favor complainants by choosing a single investigator model and/or dispensing with live hearings (because a complainant does not have to be questioned by more than one person, or questioned in the presence of the respondent) or, on the other hand, is choosing to be in favor of respondents by maintaining a process with separate roles for the investigator and decision maker and/or including live hearings. Institutions should be prepared for these characterizations.
Conclusion
The final Title IX regulations provide additional flexibility on these and other topics for institutions to determine how to best comply with their obligations under the law. These choices are important for each campus and need to be made expeditiously, given the effective date of August 1, 2024, in those states where they have not been enjoined.
Originally published Campus Safety.
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