Transcript

Host:
Hello, and welcome to today’s webinar, The 2020 Title IX Regulations: A Refresher. The program will begin shortly. Please feel free to use the Q&A box in the lower right corner of your screen to submit questions you would like to ask our panelists. Now let me introduce our moderator, Heather Salko, Manager of Risk Research.

Heather Salko:
Good afternoon everyone, and welcome to our short refresher on the 2020 Title IX rules. As was said, I’m Heather Salko and I’m the Manager of Risk Research here at United Educators. I want to thank you all for joining us today. On Jan. 9, 2025, the United States District Court for the Eastern District of Kentucky issued an opinion and order vacating the 2024 Title IX regulations and throwing the issue of what regulations apply into question, as those 2024 regulations had replaced the 2020 Title IX regulations.

On Jan. 31, 2025, the Department of Education’s Office for Civil Rights issued a “Dear Colleague” letter officially clarifying that the department would be enforcing Title IX through the 2020 rules. It updated that letter on Feb. 4, 2025. A link to that letter is in the resources. For many institutions this change requires a reversion to institutional policies and practices that had been replaced with policies that conform to the requirements of the 2024 rule.
If you are resurrecting your 2020 policies, we wanted to provide you with this opportunity to refresh your knowledge about some of the key provisions of those rules, and I’m very happy to say we have an esteemed and experienced speaker to help us do just that.

I’m happy to introduce Jody Shipper of Grand River Solutions. Jody is Grand River’s co-founder and a Managing Director. She has more than 20 years of experience in Title IX and related fields and is truly committed to advancing understanding and compliance in this area. For more information, you can find a link to her bio in our resources. Thank you, Jody, for agreeing to do this program.

A few housekeeping items before we start. If you’re having technical difficulties, send a message through the Q&A window on your screen. We will have a very short question period at the end of today’s webinar. If we don’t answer your question and you are with a UE-insured institution, email your question to risk@ue.org and our team of risk management experts will respond. I also want to note that the PowerPoint slides and transcripts from our program will be made available very soon. Further, although Jody and I are lawyers, this webinar is not designed to provide legal advice. For legal advice relating to your specific situation, please contact your institution’s attorney. I’ll now turn the program over to Jody.

Jody Shipper:
So let’s talk a little bit about what falls under the 2020 Title IX regulations because for those of you who moved over to the 2024 regulations, those covered much more than the 2020 regulations did. So we’re going to take a little time to go through what’s covered and remember that the fact that it is much narrower now leaves you a lot of room and a lot of obligation and opportunities to address all of the conduct that does not fall under these regulations. And more on that later. So as a reminder, we have to look at four different questions in order to determine whether or not the alleged misconduct is covered by the 2020 regulations. You have to be able to answer, yes, to each one of these. If you cannot, then you will be looking at any other policy or process that you may have available to address the alleged misconduct.

So we’re going to cover these in just a moment, but we’re going to look at location, jurisdiction over the parties, jurisdiction because it happened during the prescribed time period, and whether or not the alleged misconduct meets one of the definitions as set forth in the 2020 regulations. So what locations are we looking at when we talk about having jurisdiction over the alleged misconduct? We need to look at conduct that occurred on campus or in a building that you own or control or off-campus incidents that occur as part of your operations or program or activity. For example, if you have an office elsewhere where people participate in some classwork or they’re doing an internship but it is actually part of your operations or it’s part of a program or activity, this can include a field trip. This could mean when one of your teams or your band is performing elsewhere or attending a game elsewhere.

It is off-campus, but it is part of a program or activity or off-campus buildings owned or controlled by a student organization officially recognized by your institution. And please pay attention to those words, they have to own or control it. So if you have an unofficial house where a number of members of a certain team or club sometimes hang out a lot, they don’t own it or control it. And it also needs to be one of your organizations that is officially recognized. And so if all of those words are correct in that you can meet all of those definitions, then yes, you have jurisdiction based on location.

Then you also need to have jurisdiction over the parties. For the complainant, we look at whether they were participating or attempting to participate in your program or activities at the time they filed the formal complaint. So not at the time the incident occurred, but at the time they filed the formal complaint. So, for example, someone who leaves and says, “I’m never ever coming back, and now I want to file a formal complaint,” you would have to use some other policy or process to address the purported misconduct.

For the respondent, you have to be able to do something. Can you terminate? Can you discipline? Can you suspend? Can you write them up? Can you take some action against them? If you have no jurisdictional hook over them, there’s nothing you could ever do, then perhaps this is not the policy or process you should be using. And you might want to look elsewhere at your other toolbox of other policies or processes that you might be able to use to address misconduct. Or perhaps you need to shift to support only for the complainant if there is truly nothing you can do to take action against the respondent.

And then we have the jurisdiction based on dates. The 2020 regulations would apply to conduct that occurred after August of 2020.

So this is where the Title IX regulations that were promulgated in 2020 can get confusing because we have to decide is it Title IX or is it Title IX? And here’s what I mean. There is some forms of discrimination that are based on sex that would violate the prohibition against sex discrimination as written in the statute. And we also have prohibitions against discrimination and access to programs within athletics, for example. And we have different ways of counting and different tests that we need to take a look at to make sure that athletics programs are meeting the tenets of Title IX.

However, in terms of using the complicated and highly prescribed processes that are set forth in the 2020 regulations, you only need to use those processes for the conduct that was defined in those regulations. By way of another example, the regulations prohibit retaliation, but retaliation is not defined by the 2020 regulations. And so you may choose to use a different process to address allegations of retaliation even though it is retaliation based on having filed a Title IX complaint. So you may have a prohibition against retaliation in your student code or for employee or faculty misconduct it may be elsewhere in an HR policy or your faculty handbook. You could use a different process to address that misconduct because it is not defined in the 2020 regulations.

So what misconduct is defined in the regulations? We’re going to start with the misconduct that is considered on “the basis of sex,” and that includes quid pro quo harassment by an employee. In other words, when an employee conditions providing some benefit or service, if the other person will engage in some form of unwelcome sexual conduct. Or what we also sometimes call hostile environment harassment, unwelcome conduct determined by a reasonable person to be severe and pervasive and objectively offensive, denying someone equal access to your programs or activities. And again, it needs to be conduct that is sexual or on the basis of sex. So if it’s unwelcome but based on any other either protected category or not a protected category, then you will use a different policy or process to address the purported misconduct.

Then we have other misconduct that is defined in the regulations. Sexual assault, dating violence, domestic violence, and stalking. Now, a couple things to keep in mind. For sex assault, I’ve seen people sort of try and tie themselves into knots deciding … Was it intended to be sexual? Was it horseplay that got out of control? Was it based on something other than a sexual relationship or a desire to engage in sexual activity?

You don’t need to make that decision. If the body parts as defined touch or encounter the other body parts in a way that is defined, then you proceed to analyze it as a sexual assault without having to do any analysis for whether it was intended to be sexual. Now the other thing to remember is stalking. We sometimes forget that VAWA still exists. The Violence Against Women Act, VAWA, has us address stalking whether or not it is on the basis of sex.

So if I’m stalking somebody because I’m 100% certain they owe me money, that is not sexual, but I still need to provide all the protections that the Violence Against Women Act requires that I provide. For example, an advisor, a right to review all of the evidence that will be considered prior to any determination, etc. So if you are having a Title IX policy that looks at stalking on the basis of sex, just remember that your other stalking cases, if they are contained, for example, in your student code of conduct or within an HR manual, also need to have some extra procedural protections for those cases.

So as a reminder, under the 2020 regulations, there are certain circumstances in which you have an obligation to respond — not an obligation to investigate, but an obligation to respond. And that means when you have knowledge, so there’s been a report, whether or not it’s a formal complaint, of sexual harassment, that would be one of the forms of sexual harassment as defined in the regulations, we just discussed those, occurring either in one of the locations or programs or activities that we discussed earlier and within the United States. So in other words, not study abroad. If that has happened, then you must respond. And in a moment, we’ll talk about that response.

So what do you have to do in order to respond in a manner that meets the requirements of the regulations? Once you receive a report, your coordinator reaches out to the individual who is the one impacted by the purported misconduct. In other words, if you get a report from someone, a third party, then you’re going to try to reach out to the person who was the one actually impacted. Sometimes we call that the complainant, the victim, the person actually impacted by this purported misconduct. You’re going to offer supportive measures. You have to let them know that supportive measures are available, whether or not they file a formal complaint. You explain what a formal complaint is and how to file. And while not required under the regulations, it is a good idea to also explain that they have options for resolution and let them know what those would be.

Also important to remember the emergency removal standards as set forth in the 2020 regulations. So this would apply anytime you want to remove a student. So remember, it only applies to students. You can have a policy or process that addresses staff and faculty removals without using this heightened process if you wish. Whether you’re removing someone from all programs or partially, for example, if you’re just requiring that someone move out of your dorms, there is a very high threshold, which is that there is an immediate threat of physical harm. So someone who’s uncomfortable, for example, seeing the respondent on campus just knowing that they’re there, that does not meet that immediate threat of physical harm. This is not a determination of responsibility, and you need to make that clear. You can engage in an emergency removal if you have this immediate threat of physical harm, whether or not the grievance process is underway.

Your analysis needs to be individualized. You can’t have a rubric that says, anytime we get a report of X, we will immediately remove and you must provide them with an opportunity to challenge. Also as a pro tip, remember that if you removed someone as an immediate threat of physical harm and your facts that you have gathered changed dramatically and you now recognize they did not pose an immediate threat of physical harm, you always have the right to undo. However, I also caution against putting them on a removal, back [to campus], removal, back, but it is something that you should pay attention to throughout your process.

And then some reminders about supportive measures. Supportive measures are offered to the complainant when they, as part of your initial response and to the respondent, upon being informed that there is going to be some form of process taking place. These measures may not reasonably burden the other party. They are non-disciplinary designed to restore or preserve equal access. They are confidential, meaning that we don’t tell the other party what we put in place. They cannot be used as evidence. For example, sometimes respondents want to use the supportive measure as evidence that for example, someone only filed to get a certain supportive measure. No, they don’t get access to that information. They need to be appropriate and reasonably available.

And another pro tip: Your Title IX coordinator must, not an option, must be the one who is ensuring that these supportive measures are not too much, not too little, and are appropriate and ultimately signing off on them. That is an obligation that falls ultimately to your Title IX coordinator. They don’t have to implement them, but they must be the one approving them.

And as a reminder, we are back to the world of requiring a formal complaint, which needs to be some sort of physical signature or indicia that it is the complainant who has signed or sent in this formal complaint. It can be their email as long as it is one that has their name attached to it. It must explain the prohibited conduct that occurred, the where, what, when. If someone simply says a bad thing happened to me and this is my formal complaint, that is not sufficient to count as it were as a formal complaint. They need to identify the respondent if they know the respondent and then they must request an investigation. It is a really good idea if you don’t have one already to have some kind of form that makes this all much easier so that you don’t have to go back and forth rejecting a formal complaint because it’s missing some critical piece that they didn’t know they needed to include.

As a reminder, there are several types of resolution that you may consider. One is when you only receive a report, nothing is going to be done. It’s not really a resolution, but that may be all that happens, especially if it’s a report that’s missing information. The complainant doesn’t want to talk to you. You’re getting only a little bit of information in. It’s a report and there’s nothing more you can do. It is resolved until you get enough information or until there is a request or a formal complaint. Support only is for many complainants all that they want and that is acceptable. And we’ll talk in a moment about when you move something forward, when a complainant doesn’t want to, but support only resolution is a nice thing to put out there that you can let people know that is one of their options. It’s often a really good way to encourage people to come in and share what’s going on with them so that you can have a much better idea of what’s happening on your campus.

Agreement-based resolutions, you may call that informal resolution, you may call it alternative resolution. I happen to like the phrase “agreement-based,” because it says exactly what it is. There are some constraints on when you might use it if someone is in a position of power, and there is no way that this is going to be truly voluntary and both parties, of course, are going to agree on the full investigation and hearing process. Also, as a reminder, your Title IX coordinator can sign the formal complaint. This is not intended to be the mechanism you use every time you get a report. Instead, this should be a very high bar. You’re moving only the ones forward by having the Title IX coordinator sign if there is a significant threat to your campus safety due to some misconduct that appears that there are multiple complainants, it is repeated misconduct and it needs to be addressed.

But again, this is not intended to take place in every single time that a complainant doesn’t want to move a complaint forward. The Title IX coordinator, once they sign it, they don’t stand in the place of the complainant. In other words, they’re not reviewing the evidence providing a response. They have no right of appeal. It is simply a mechanism for moving the complaint forward. Otherwise, if the coordinator isn’t signing it, only the complainant or if you’re in K-12, their parent or guardian can sign a formal complaint. A friend, a third party, that doesn’t count. And also as a reminder, if the complainant doesn’t sign the formal complaint and the coordinator is not moving it forward, there’s no significant threat to your campus community, never do nothing. And what I mean by that is review it. Decide if there’s a lesson that you can learn. Is there some action you can take? Is there some preventive step that could be put in place? Is there a knock-it-off conversation that it might be appropriate to have with the respondent?

So always take a moment when you’ve gotten a report and it’s not moving forward to review it and decide if there is something else that you could be doing as a preventive measure so that you are not getting more complaints about the same respondent or the same situation. For dismissals, remember, we have very specific rules under the regulations. It is mandatory, you absolutely must dismiss if it turns out that the alleged misconduct does not fit within one of those very specific and narrow definitions. Or if you don’t have jurisdiction because it was neither on campus nor in a program or activity or if it turns out or it’s in the formal complaint alleged that it is not against someone in the United States. So whether you know that when you read the formal complaint or as you’re investigating, it becomes a mandatory dismissal.

It’s discretionary when the complainant withdraws the complaint in writing. If your respondent is gone and not coming back or you really cannot collect sufficient information, you have a little bit of information, maybe you’re missing the respondent’s name, maybe you’re not even sure exactly what occurred, but based on the report, there’s just no way that you could move it forward, then you have discretion to dismiss. And remember, dismiss and transfer. So if you’re dismissing from this process, surely there is some other process or some other office or person who could speak with the complainant or another process perhaps that would pick up the case if it turns out that for example, it didn’t happen in a program or activity, but it was between your students. So that might be dismiss and transfer to your student code or dismiss and transfer to HR, for example. So always think about dismiss and transfer rather than dismiss it and drop it.

A few reminders on informal resolution or agreement-based resolution. You must have a formal complaint before you can proceed. It must be completely voluntary and in the middle of it, one party or the other can decide they want to end the informal or agreement-based resolution process and move it back to an investigation process. The people who are engaging, conducting the informal resolution must be trained and your Title IX coordinator always has the right to determine that this is an inappropriate process or that it is being abused and that it needs to return to the formal investigation and hearing process. Also, a reminder on your notice of allegations, it must be in writing and there’s a whole long list. We don’t need to go through all of them right now. You can read the slide and when you get them later just to check against them. But remember that you must give your respondent a lot of information when you’re moving forward.

That notice of allegations that goes to respondent, the complainant will also get their version of the notice of allegations and every single element must be in there for each party. I think it’s always a better process, by the way, that each gets their letter and you don’t take the respondent’s letter and just copy it and send it to the complainant. They each need to get specific information — and you can read it all here or consult the slide later. A few quick reminders on the investigation. The investigator must consider all relevant evidence. Each party has an equal opportunity to present relevant evidence, relevant witnesses. They can challenge the investigator for bias. There’s an evidence review period, which is a minimum of 10 days, and that’s for the evidence that’s directly related.

And then they may be allowed to have an advisor of choice, but that is not something you’re required to provide. And then the final report does not include findings. Simply a summary of all relevant evidence in essence. For hearings, must be a live hearing, but it can be conducted remotely. You cannot compel participation. Depending on your institutional policies, you can compel participation in an investigation but not a hearing. Can use preponderance or clear and convincing. But if you’re using clear and convincing, that must be the same standard that you use everywhere else in your other student and employee matters. Cross examination is conducted by their advisor. If they don’t have an advisor, you provide one to them at no cost to them.

And this is really to think of it as a reader, someone who reads their questions, not someone who’s arguing.

And then the decision-maker or the hearing officer determines the relevancy of questions and the evidence. The exclusionary rule, some of you may remember there was briefly a rule in place that if someone doesn’t participate at the hearing, then everything they had already said during the investigation, none of that could be considered. That is no longer the case. That went out soon after the 2020 regs came in place. And then there must be a written decision that includes the findings, the sanction, and the rationale. And there are a number of procedural elements that must be included in that written decision.

And so here are those elements. The allegations, this is good to copy and paste from the notice letter to make sure everyone is on the same page and that you didn’t leave something out; description of all the procedural steps; your findings of fact, which you always want to craft before you craft your analysis as those factual findings apply to the policy. Then your conclusion on the application there as relates to whether or not there was a policy violation. With your rationale throughout so that someone can follow along and see your thinking, this is like third-grade math, show your work. The sanction, if there is a finding, remedies-- that is only provided to the complainant. So the report might say in remedies as may be applicable. And then the remedies are provided only to the complainant. And then your procedure for appeal.

Please don’t sleep on VAWA. There are a number of procedural requirements. I see people forgetting these all of the time. So take a look here and if there’s something that is a surprise to you, you might want to go back and review your VAWA trainings to make sure you’re providing all of these procedural protections which exist separate and apart from the 2020 Title IX regulations. As another reminder, then you must provide an appeal to each party on very specific grounds: a procedural irregularity that affected the outcome; new evidence that wasn’t previously available that would affect the outcome, not just new evidence that has no impact; or somebody had a conflict of interest or bias that affected the outcome. Also, a reminder to allow these challenges for bias against the coordinator or the investigator and decision-maker early in the process so that you don’t need to overturn a case for that reason, hopefully, if you’ve addressed it earlier.

And the last few things in our sprint here through the regulations: you must have a coordinator; disseminate your policy; separate responsibilities. In other words, your hearing officer can’t be your Title IX coordinator. You must engage in training. You must post the training. Must be carried out free of bias and in an impartial manner, and you need to keep all of your records for seven years.

Salko:
Thank you, Jody. That information is so helpful. And everyone, I know we’re running a little bit over time, but we do want to take just one or two questions that we’ve been receiving. And Jody, let me ask you this. What do people do if they’ve received a complaint that happened before the court’s order dismissing or vacating the 2024 regulation? But what if the investigation’s not complete? Do they need to start all over again?

Shipper:
Just a reminder, I’m a lawyer but not your lawyer. So you may consult with counsel, but generally you would want to move it over mid-process to the 2020 process, which probably means you’re going to add a hearing even though the parties had not expected one. It’s a difficult thing to do, but you would want to even though you’re mid-process, most likely, and again, consult with counsel, move it over to your 2020 process.

Salko:
OK, thank you. Probably not what everyone was hoping for, but-

Shipper:
Sorry about that.

Salko:
Let me take one more. That’s one more quick question. If we did training on the 2024 regulations earlier this academic year, do we now need to go back and retrain everyone under the 2020 regulations? What do you advise?

Shipper:
I think it’s a good idea to be safe. We don’t know how much enforcement there will be, but it’s an easy enough thing to do so that everyone is fresh and it’s posted on your website properly. And there are some ways that you can do a quick enough retraining now, but I think it’s really important to redo it just in case.

Salko:
OK, great. That’s a great recommendation. Thank you. Well, that’s all the time we have today. And it really was a sprint, but I want to thank you, Jody, for taking the time to refresh everyone’s memory about these 2020 regulations. And I’ll just say if you have a question that we didn’t get to and you are UE-insured, you can use our free risk advice service by emailing your question to risk@ue.org, and one of our risk management experts will get back to you. Again, the recording, PowerPoint slides and transcript from today’s sessions will be posted to our website soon. So keep a lookout for them and thank you all for joining us today.