New Title IX Regs – 10 Weeks to Implementation: Practical First Steps

As institutions continue to navigate COVID-19 and its impact on campuses for fall, we now have another thing to add to our busy summer list:  revising policies and practices to be compliant with the U.S. Department of Education’s (“DOE”) new Title IX regulations by August 14, 2020.

Practical First Steps:  August seems like a long time from now, but by our count that leaves us only 10 weeks to roll up our sleeves.  With a good plan in place and the right stakeholders at the table, this is doable.  If you haven’t already begun the compliance review process, below are some first steps to get the project off the ground:

1. Create a working group (consider including your Title IX Coordinator and team, Student Affairs and Student Conduct teams, student leaders, sexual misconduct advocates, Human Resources professionals, and Legal Department).
2. Create an implementation plan with August 14 (or before) as your target, building in plenty of time for necessary stakeholder conversations and legal review, and calendar regular check-in meetings.
3. Involve Public Affairs early to create a communication plan.  Consider an immediate statement about the institution’s work to implement and ongoing commitment to equal access, support for students, and a fair and equitable process.
4. Gather all Title IX-related policies, handbooks, and grievance process documents/manuals.  Don’t forget to collect website content that references or relates to sexual harassment, sexual misconduct, and/or Title IX.  (Keep in mind, this includes staff and faculty policies and grievance procedures, and any applicable collective bargaining agreements.)
5. Begin drafting updates to the low-hanging fruit, if any. 
6. Consider new staffing/budgeting that you may need in order to comply and begin initial conversations regarding hiring, if needed.

Big Picture Themes:  As you begin this process, keep in mind some of the DOE “big picture” themes that may help guide your work:  historic recognition of sexual harassment as sex discrimination; supporting complainants and their autonomy; and non-discrimination, free speech, and due process.  The DOE has also articulated a three-part framework that it will use to judge potential Title IX violations:  “actual” knowledge, a narrowed definition of sexual harassment, and whether the school’s response was “deliberately indifferent.”  It has also expressly stated that the Title IX regulations may have a preemptive effect on related state laws.

Given the short turnaround time, directed attention on the procedural requirements of compliance will serve you well.  As examples, the new regulations require schools to investigate “formal” complaints and craft mandatory dismissal processes.  Live hearings, with real-time evidentiary rulings and cross-examination by third-party advisors (for higher education institutions), will require careful consideration of who on campus is best suited for the role of decision-maker and hearing facilitator, and necessary training.  In addition, the reiteration of Title IX’s applicability to employment underscores the need for your Human Resources and labor relations staff to be involved from the start.

This is the first in a series of alerts regarding the new Title IX regulations.  We will address the new definitions and other big picture changes, and their practical effects, in the coming weeks.

If you think someone else on your team would benefit from this alert series, please email Jack Lammers to add them to our Title IX mailing list.