Transcript

Host: Hello and welcome to today’s webinar, 2024 Title IX Regulations: Exploring Key Provisions. All attendees are in listen-only mode. First, some housekeeping items. All questions, including any technical issues you may experience, can be submitted in the question box at the bottom of your screen. Webinar resources are available in the resource list on your screen. Please note that the slides and a recording of today’s program will be available in a few days on our website, www.ue.org. And now, here’s today’s moderator, Hillary Pettegrew.

Hillary Pettegrew: Thank you, and welcome to everyone joining us today. I’m Hillary Pettegrew, a Senior Risk Management Counsel at UE. Now, as we all know, the final Title IX regulations were published in late April and will become effective Aug. 1, and there’s a lot to digest. In the webinar resources on the screen, you’ll find links to the regulations in the Federal Register, and to a UE Insights article highlighting their major provisions.

Some of you might have listened to our May program, Title IX Briefing on the Final Regulations, with speakers Joe Storch and Andreas Dag from Grand River Solutions. If not, a link to that recording is also in today’s resources. While that May briefing offered a high-level, broad overview of the regulations, today’s webinar is different. We’ll focus in more depth on selected significant aspects of the regulations, which means of necessity we’re leaving some important things out. A few examples of issues we won’t cover today are emergency removals and supportive measures.

A copy of the PowerPoint slides is included in the resources, and especially if you aren’t with a UE member institution, I strongly recommend downloading the slides now to ensure you’ll have access to them. The slides contain a wealth of information, and we won’t be able to cover every detail, so having them for future reference should be helpful.
And with that, I’m happy to introduce today’s speakers, two attorneys from the firm, Hogan Marren Babbo & Rose in Chicago. They both have deep expertise in Title IX, and their full bios can be found on your screen.

First is Debbie Osgood, who represents and advises her clients, including public and private colleges and universities, on Title IX and other educational policy and legal issues. Debbie specializes in educational civil rights, having spent 25 years at the Department of Education’s Office of Civil Rights before beginning her private law practice. Debbie, welcome.

Debbie Osgood: Thank you. Looking forward to today.

Pettegrew: And next, we have Linh Nguyen, who advises her secondary and post-secondary education clients on compliance with federal and state laws and regulations, including Title IX. She conducts employee training, investigates discrimination and sexual misconduct allegations, and performs policy and procedure reviews. Linh, thanks so much for joining us.

Linh Nguyen: Sure thing. Thanks, Hillary.

Pettegrew: As you can see, our email addresses are here and we invite you to contact us if you have questions after today’s program.
Here’s today’s agenda. The speakers will begin by addressing important changes to Title IX’s coverage and scope under the final regulations, after which they’ll focus on key provisions of the regulations in three broad areas. First, institutional policies and procedures; second, organization and structure of Title IX compliance programs; and third, school community awareness and culture. And finally, we’ll wrap up with a question and answer session. And now, I’ll turn the program over to Debbie and Linh.

Osgood: Thank you, Hillary. Today we’re going to be talking about the regulations that were issued by the U.S. Department of Education in April of this year and are set to go into effect on Aug. 1, 2024. As you all know, the Title IX statute prohibits discrimination on the basis of sex, and the statute was passed over 50 years ago in 1972. Following that, we saw regulations that were adopted across the federal agencies, and in 2020, we saw regulations that specifically address the issue of sexual harassment in higher education and education generally. And now in 2024, we’re seeing new regulations that will be swinging the pendulum again.

And I just want to say that in terms of viewing this pendulum swing, I think that we’re landing somewhere in the middle, and I think the two big areas to focus on that we’ll be talking about throughout the presentation are first, what is sexual harassment? And second, what are prompt and equitable grievance procedures?
And essentially since the regulations were adopted in 2020, and even when the “Dear Colleague” letter was issued in 2021, what we’ve seen are different administrations articulating these concepts differently. So you’ll see that the definition of sexual harassment that is now in the Title IX regulations that will go into effect in Aug. is broader than it was under the 2020 regulations. And then you’ll also see that the procedures that are required are less specific than they were under the 2020 regulations.

And our goal today is really to help educational institutions get ready to implement the new regulations by focusing on three major components. First, we’ll talk about institutional policies and procedures and what changes you need to consider making to those policies and procedures. Second, we’ll focus on organization structure, thinking about it as an overall Title IX compliance program. And third, Linh will talk about school community awareness and culture. And here we’re going to be focusing on the steps you need to take to get your team ready for the effective date of the new regulations in Aug.

So the first thing I want to mention in terms of the new regulations is that they require that schools respond promptly and effectively if they have knowledge of conduct that reasonably may constitute discrimination in education programs or activities. And then you’ll see on the slide a list of specifics, and we’ll address some of those as we go forward with the presentation. But the big takeaway and one of the major parts of this, part of the pendulum swing, I guess, is that the regulations now talk about not just sexual harassment, but sex discrimination in general. And we all know that sexual harassment or sex-based harassment as it’s discussed in the new regulations is a form of sex discrimination, but now we’re seeing the department articulate in more detail what procedures need to be in effect for all types of sex discrimination, including but not limited to sex-based or sexual harassment.

Again, looking broadly at how the new regulations will change, what we’re looking at is the area of Title IX sexual harassment. Title IX applies to conduct that occurs in a school’s education program or activity. So obviously, that includes anything that happens on campus, anything that happens as part of the learning experience, anything that occurred in a building owned or controlled by a student organization that’s recognized by the school. And the new regulations make clear that it also includes conduct that’s subject to the school’s disciplinary authority. There, you may think of the student codes of conduct that athletes are subject to as an example. And then, also, another major change is that it applies to conduct that occurred outside of the school’s education program or activity, or outside of the United States, but that creates a sex-based hostile environment in the school.

The new regulations also broaden the scope of what is included in sex-based discrimination. As I mentioned, we’re obviously talking about sexual harassment, we’re talking about the traditional concepts of sex and gender, but the regulations now include sex stereotypes, sex characteristics, pregnancy or related conditions, and sexual orientation and gender identity. And sexual orientation and gender identity were added as a result of the 2020 Supreme Court decisions in the Bostock case, in which the court said that sex discrimination, there under the Title VII statute, included discrimination based on sexual orientation and gender identity.

It’s also important to note that the amended regulations do not explicitly address sex-segregated sports teams. This is covered in a separate notice of proposed rulemaking, and we don’t expect a final rule for that rulemaking until at least 2025. Also, the issue of sex-separate sports teams is currently the subject of heavy litigations. I’m sure you all know.
The new Title IX regulations include a specific new provision that talks about the limited circumstances in which Title IX allows there to be different treatment or separation on the basis of sex. The school cannot carry this out in a manner that subjects a person to more than de minimis harm. And essentially, this is the part of the new regulation that is addressing gender identity and what steps the school must take to ensure that someone is not discriminated against on the basis of their gender identity. The exceptions in the Title IX regulations related to admission, related to religious institutions, and to sororities and fraternities are still in effect, but this part of the regulation will be the part used to explain the types of pronouns that are allowed, the types of different treatment that are allowed for students and employees on the basis of gender identity.

The 2024 Title IX regulations go into effect on Aug. 1, 2024. The final rule applies to complaints of sex discrimination, including complaints of sexual harassment regarding alleged conduct that occurs on or after Aug. 1. So the effective date is tied to not when the conduct is reported, but when the conduct occurs, and it must occur on or after Aug. 1, 2024.

That said, the Aug. 1 2024 effective date may be delayed due to pending legal challenges. Currently, there’s been litigation filed by 22 state attorney generals, based on challenges that the process was arbitrary and capricious, that the new requirements do not include sufficient protection for due process, challenges to the definition of sex and the references to gender identity, and also challenges on the basis of free speech.

Now we’re going to focus on the key provisions that you’ll want to include in your new or updated/revised policies and procedures about sex discrimination and sex-based harassment. The 2020 regulations included three general categories of sexual harassment: hostile environment harassment; quid pro quo harassment; and specific offenses such as sexual assault, dating violence, domestic violence, and stalking. In the specific event offenses, the definitions are generally the same. For quid pro quo harassment, which I always view as kind of this for that, is conduct that is by an employee or an agent, and also under the new regulations by anyone authorized by the school to act on the school’s behalf.

The biggest change in the definition of sexual harassment though, comes in the definition of hostile environment harassment. The current definition of hostile environment harassment states that the harassment must be objectively offensive and severe and pervasive, so as to limit or deny someone’s access to the educational program. And the key change here is the word “or,” that it’s no longer severe and pervasive, it’s severe or pervasive. And through this broader definition, we are likely to see a much bigger scope of harassing conduct that will be covered by the new regulations, and that you’ll need to address as part of your new procedures.

Another major change in the new regulations is that, unlike the current regulations where there needed to be a formal complaint with a signature from the complainant in order to trigger the school’s obligation to conduct an investigation, now complaints can be made either in writing or verbally, with the requirement that objectively, they would be understood as a request to investigate and make a determination about alleged discrimination.

Another change is that there was a new specific definition of the term “complainant, ” and I want to bring us back to the original discussion we had, that we’re talking about preventing discrimination in an educational program or activity, so the rules are going to be designed to protect and prevent discrimination against people that are participating or trying to participate in the education program or activity. So the specific language is that the complainant is either a student or an employee or someone that’s participating or attempting to participate in the education program or activity at the time of the alleged misconduct. So again, this is going to broaden the scope of potential complainants that can file a complaint under your new policies, because not only is it everyone that’s attempting to participate, but it’s also not just sexual harassment, it’s also sex discrimination.

Like the current regulations, the rules that will go into effect in Aug.allow schools to use what’s called informal resolution to try and resolve a complaint. Importantly for colleges and universities, the prior prohibition on using informal resolution, where there was a student complainant and an employee respondent, that prohibition is now gone, and also there’s no requirement that there be a formal written complaint filed in order to initiate the informal resolution process.

This slide and the next slide include details about how the process is to be offered. From my perspective, informal resolution can sometimes offer a very helpful way to resolve what can be very difficult conflicts between students and employees, and perhaps in a quicker and perhaps more emotionally satisfying way than going through a formal process. So I always encourage our clients to consider this, obviously in appropriate circumstances.

At the start of the presentation, we talked about thinking about what changes need to be made in three different components. We talked already about policies and procedures, and now we’re going to talk about organization structure. You may also want to think about organization structure in terms of your reporting structure and how you’re going to staff whatever office is responsible for handling these cases. But here we’re going to focus on what are the process or the procedures that you need to have in place to respond to sexual harassment, sex-based harassment, and sex discrimination.

The new Title IX regulations include specific provisions at sections 106.44, 106.45, and 106.46, as you see on the slide here, for what needs to be in your grievance process. How do you have to respond to complaints and reports of sexual harassment or other sex discrimination?

What’s important to understand under the new regulations is that we have two very different, or very large categories, I should say. First, we have the category of rules that applies to all sex discrimination complaints. So this is not only sex discrimination such as sexual harassment, but other types of sex discrimination, maybe different treatment, pregnancy issues, athletic issues, anything that relates to discrimination on the basis of sex as that’s defined in the new regulations.

Secondly, we have a specific provision related to procedures for the prompt and equitable resolution of sex-based harassment in higher education involving a student complainant or respondent. And you’ll notice that this does not include employees. So the employee complaints and resolution of employee sex-based harassment complaints would be handled under 106.45 and the general procedures.

And just to give you a sense, the general procedures are very similar, I would say, to the current procedures, with the exception of the provisions related to advisors and also the requirement that there be a hearing process.

So what we’re going to do now is walk through what’s required for everything, for all sex discrimination complaints, and then what’s additionally required for cases involving students, whether they be complainant or respondent in the post-secondary context.

Now, for all grievance procedures involving sex discrimination, we’re going to be required to treat complainants and respondents equitably. And as I go through these requirements, these are the requirements that need to be included in your written procedures. You can have a conflict of interest or bias by the Title IX coordinator, investigator, or the decision-maker, and that’s a bias against the complainants individually or in general. Importantly, under the new regulations, the decision-maker may be the Title IX coordinator or the investigator. So the new regulations are permitting what used to be referred to as a single investigator model.

The respondent is presumed not to be responsible until the end of the grievance procedures. Schools must establish reasonably prompt timeframes for the major stages of the grievance procedures, obviously with some exceptions or extensions for good cause. It’s important that schools designate what these major stages are, and generally it’s going to be the evaluation stage, where you decide whether to go forward with an investigation or to dismiss it, the investigation stage, the determination, and the appeal process. So it’ll be important to establish how long each of those parts of the overall process are expected to take.

The new requirements also require that schools take reasonable steps to protect privacy without restricting the parties’ participation in the grievance procedures, and the ability to receive support. And essentially, this is the requirement, again, that you can’t have a gag order saying that students can’t get support or talk to others about their cases or the allegations, but you can ask that as an institution, the information about these cases be kept within a reasonable circle of people with the need to know.

Additional basic requirements for all grievance procedures are of the concept that we see in the current regulations, that there be an objective evaluation of all relevant evidence with credibility determinations that are not based on a person’s role in the complaint.

And impermissible evidence must be excluded regardless of relevance. And you see here the specifics, in terms of what impermissible evidence is. These are largely the same as what was cited as not relevant in the current regulations. So it’s evidence that’s protected by some type of privilege, unless it’s waived; treatment records, again, unless there’s some type of consent that they be released; and information about a complainant’s sexual interest or prior sexual conduct, except in certain circumstances.

And when we think about relevance, there’s now a specific definition in the regulations that says that relevance is information that’s related to the evidence and that may aid in showing whether sex discrimination occurred. So it’s a broad concept, and then we have these guardrails where there are types of evidence that are just simply not permitted to be considered.
Like the current regulations, the regulations that go into effect in Aug. require that there be written notice to the parties of the allegations, and that the notice include what the procedures are; sufficient information so the parties understand who’s involved and how to respond to the allegation; when it occurred, if you have that date; a statement that retaliation is prohibited; a statement that parties have the equal opportunity to access relevant and permissible evidence; and notice that if there are additional allegations, there will be notice to the parties at that point if any new allegations are added.

You may recall that under the current regulations for Title IX sexual harassment, schools are required to dismiss cases in certain circumstances and permitted to dismiss cases in other circumstances. And this slide shows that the rules have changed and that there are no longer rigid mandatory dismissal categories. Those have been eliminated, and schools now have the discretion to dismiss cases, for example, in situations where they have tried to reach the respondent but are unable to identify the respondent after taking reasonable steps.
We’re now going to talk about the investigations and the adjudication process that are required under the new Title IX regulations. And I think, very broadly, currently the regulations require that there be a hearing to address complaints of sexual harassment, and the new regulations do not require hearings. They require a process for assessing credibility. And so schools are going to be faced with a choice of what type of investigation model do we want to use? Do we want to go back to a single investigator model? Do we want to keep the hearing model that we’ve been using? Or do we want to use some combination perhaps, of having an investigator do the investigation and then having a decision-maker make the decision.

For all complaints, so this is again, all complaints of sex discrimination, including but not limited to sexual harassment, the burden continues to be on the school, not the parties, to conduct the investigation, and there has to be an equal opportunity to present factual information, including witnesses, documentation, and other permissible evidence. The parties have to be given an opportunity to review the evidence and evaluate whether it is relevant and permissible, and also have a chance to access the relevant permissible evidence. The regulations also talk about an alternative where the school can give a summary or a description of the evidence instead of allowing the parties to see the evidence itself.

Schools must also take reasonable steps to prevent and address unauthorized disclosures of evidence, and so it’s important to stress to the parties the importance of keeping this information within the circle of the people who need to know at the institution, and also without prohibiting their discussions with individuals that may be providing them some type of support.

Here we see the additional requirements for investigations of sex-based harassment allegations involving student complainants or respondents at post-secondary schools, and you see that it is more detailed, and it also includes the opportunity to have advisors be present. Again, parties are going to be provided an opportunity to access relevant permissible evidence and to respond to that evidence, and the schools are required to prevent and address unauthorized disclosures of evidence.

These next few slides are going to give an overview of how schools have to go about assessing credibility. And again, this involves whether you’d want to use a single investigator model or you would like to use a hearing model, or something in between. Schools have to provide a process that allows the decision-maker to question the parties and the witnesses in order to assess credibility, to the extent that credibility is both in dispute and relevant to one or more of the allegations, again, of sex discrimination, including but not limited to sexual harassment.

Here are the specific additional rules for sex-based harassment cases involving students at the post-secondary level. I want to highlight that where an individual, either a party or a witness, refuses to attend the hearing or to respond to relevant and permissible questions, the decision-maker can choose to place less or no weight on those statements, which is in contrast to the current regulations, which says that the hearing decision-maker can’t take that into account. The last part of this slide talks about, however, the decision-maker cannot draw an inference of whether sex-based harassment occurred solely on the basis of parties’ refusal to respond to questions, or a witness’s, refusal to respond to questions.

This slide emphasizes that before making any determination of whether sex-based harassment [occurred], a school must either provide a live hearing process or another means of questioning the parties or witnesses and providing them an opportunity to review the evidence.

In the context of hearings, if they are provided for sex-based harassment allegations, credibility can be assessed either by having the parties propose questions to be asked by the decision-maker of any party or witness, or having the party’s advisor ask questions of any party or witness. So it continues to allow schools to use the advisor method of asking the questions, and now also allows the questions to be asked only by the decision-maker. Again, if the advisor-conducted questions are permitted and a party doesn’t have an advisor, the school has to provide an advisor of the school’s choice without charge.

So finally, just to emphasize that if the school does not want to conduct a live hearing process, it still must allow that question be asked during individual meetings with the parties and witnesses, and the parties be able to propose questions that will be asked, and each party has to be provided a transcript or recording of the interviews and given enough time to follow up with additional questions.

After the investigation has been completed, we get to the written determination part of the proceeding. As before, schools are required to provide a determination in writing to the parties with a rationale for the determination and the applicable procedures for appeal. Importantly, this does not have the more prescriptive requirements that describe findings of fact or other details in the determination letter. You’re basically going to say, this is what the allegation was, this is why we’re finding that there is or is not a preponderance of the evidence to support the allegation, and here are the procedures for appeal.

And this slide describes the additional information that must be included in those cases that are addressing, sex-based harassment involving students. You’ll see there’s some additional detail that you’ll need to include in the written determination. But again, overall, the amount of detail that needs to be in the determination is narrower than what’s required under the current regulations.

Nguyen: Turning to the key provisions impacting your school community’s awareness and culture with respect to Title IX, this refers to reporting information, training obligations, and other aspects that are integral to building understanding and confidence with how concerns will be handled by your institution.
The new Title IX regulations include reporting obligations for employees based on the category or role that they have, and those obligations are triggered when the employee has information about conduct that reasonably may constitute sex discrimination under Title IX. So depending on that category or role, we’ve grouped them into confidential employees and all other employees. Within that category of all other employees, there are certain other employees, who depending on their role or responsibilities, have very specific responses or reporting obligations that apply, which we’ll talk through on the next slide.

So what is a confidential employee? The Title IX regulations state that confidential employees essentially fall into three categories, the first being that their communications are privileged or confidential under federal or state law; the second being that they’ve been designated by the school as confidential, and specifically for the purpose of providing sex discrimination-related services; and then the third, which is a new recognition, is for IRB-approved research that gathers information about sex discrimination.
Something to note for each of these categories is that that privilege of confidentiality is limited to the function in which the privilege applies. So when looking at individuals who provide sex-discrimination-related services, that privilege is limited to information that they receive while they provide those services, and not information that they receive when they’re performing unassociated duties. And there are similar limitations for the other categories of confidential employees.

With respect to the reporting obligations of confidential employees, the school must notify all participants in the education program or activity how to contact those confidential employees, making it known to individuals within the school community, and then in terms of their specific reporting obligations, they must explain to every person who informs them of conduct that reasonably may constitute sex discrimination under Title IX, that one, the employee has confidential status and the circumstances in which the employee is not required to notify or inform the Title IX coordinator of the information that’s being shared with them; two, how to contact the Title IX coordinator; three, how to make a complaint of sex discrimination; and four, the

Title IX coordinator’s ability to offer or coordinate supportive measures, an informal resolution process, or investigation under the grievance procedures.

The second and third requirements there are similar when we look at other employees. What’s unique to confidential employees is that it’s the first requirement there, that they inform them of their confidential status, and the fourth requirement, that they walk through what the Title IX coordinator’s abilities are to assist that individual.

Looking at the reporting obligations for all other employees, which are non-confidential employees, at the K-12 level, these requirements are remaining the same. So employees are required to notify the Title IX coordinator when they have information about conduct that would reasonably constitute sex discrimination. It’s simply a requirement that they must notify the Title IX coordinator. I’ll also note that at the K-12 level, confidential employees are defined exactly the same as the definition that we’ve walked through previously.

At the post-secondary level, again, for non-confidential employees, their reporting obligations splinter, in effect. So non-confidential employees must either notify the Title IX coordinator or provide the person that is informing them of this information with the Title IX coordinator’s contact information and information on how to submit a complaint of sex discrimination.

However, a subcategory of all other employees is that if you are an employee that has the authority to institute corrective measures, or you have responsibility within administrative leadership within teaching or advising for your school’s program or activity, you must notify the Title IX coordinator. You do not have the option of just simply providing that person’s information. It must be a notification to the Title IX coordinator. And again, it’s when that employee has information about conduct that may reasonably constitute sex discrimination Under Title IX.

Schools must make a fact-specific inquiry when an individual is both a student and employee when they operate in those dual roles, and the Title IX regulations offer that the school should consider, one, is the primary relationship of this person with the school to receive an education, and two, did the alleged conduct occur while performing employment-related work?
The school must reasonably determine and specify whether, and under what circumstances, a person who is both a student and employee is subject to the reporting requirements that we just discussed. This fact-specific inquiry is also important, because based on the school’s determination, it will trigger either the 106.45 process, the more generalized employee-employee grievance process, or if the school determines that this person is a student and the conduct involves an employee, or a student-student relationship, then it triggers the more specialized 106.46 process.

The Title IX regulations provide that during a public event to raise awareness about sex-based harassment, the institution or school is not obligated to act in response to information that’s shared about conduct that may reasonably constitute sex-based harassment. The exception being that unless that information indicates an imminent and serious threat to the safety or health of an individual, be it a complainant, any student, employees, or another individual. The Title IX regulations also provide that the Title IX coordinator or any other employee is not required to attend these public awareness events.

An additional note on reporting: The Title IX regulations also require the school, and more specifically the Title IX coordinator, to monitor the educational program or activity for barriers to reporting and to take steps reasonably calculated to address those barriers. This may look like research partnerships or climate surveys that are conducted.

In terms of previously discussed public awareness events, within the discussion of those events the Title IX regs offer that you can use the information that is made known in those public events to inform prevention efforts, and that may look like tailored training to address parts of your school’s educational program or activity that is indicative of perhaps multiple alleged events or incidents. That may be also another forum creating that tailored training to address some of the reporting barriers, and I think more effectively to affirmatively evaluate and to measure ongoing progress and improvement in this regard.

The new Title IX regulations require training on content that is specific to individuals’ duties within the institution’s program or activity, and also within more specifically the Title IX compliance program. We’ve broken up those categories here on this slide, and we’ll talk through each of them. Overall, these individuals must receive training promptly upon hire or any change in their position, and then annually thereafter. And similar to the 2020 Title IX regs, the training must not rely on sex stereotypes.

The first piece we’ll walk through is training for all employees, and that must cover the school’s obligations to address sex discrimination in its educational program or activity, the scope of conduct that constitutes sex discrimination under Title IX, including the definition of sex-based harassment, and a new component, which is all of the applicable notification and information requirements of possible sex discrimination, and then, which we’ll discuss later, of pregnancy or related pregnancy conditions.

Essentially, what your employees should walk out of training knowing is what exactly their notification or reporting information requirements are. Are they confidential or non-confidential employees? Must they notify the Title IX coordinator, or can they simply provide information on how to contact the Title IX coordinator and how to file a report? And if they are confidential, do they know the circumstances where that confidentiality may not apply? These are the aspects of your training program that should be very clear for all employees who undergo this training.

The next category is training and the content that must be covered for members of your Title IX team. And these are individuals who are responsible for implementing Title IX at your institution, so of course, it’s important that they get this information right. For our purposes, Title IX team refers to the investigators, decision-makers, and truly anyone else that’s responsible for implementing the grievance procedures, or who has the authority to modify or terminate supportive measures that your school makes available to involved parties.
In terms of the content that must be covered, there must be information about the school’s obligations under the grievance procedures, the basic procedures and the specialized procedures under .45 and .46 respectively, how to serve impartially, the meaning and application of relevance for questions, and evidence that may come up during the Title IX process, during the grievance process, and the types of impermissible evidence, regardless of relevance, under each of those processes.

And then in addition to that, the training must cover all the content that was required as part of all-employee training. So each of those bullet points that we previously walked through, including, of course, the notification and information requirements for each employee and where they may fall upon that category of confidential or non-confidential employee.

The training requirements for facilitators of the informal resolution process, again, must cover the rules and practices specific to the school’s informal resolution process because that’s the component that they will be implementing. Also, how to serve impartially, including avoiding any conflicts of interest and bias, and then all of the content that was previously covered in all employee training. So we see here that the training requirements fold into each other, but this is specific to facilitators of the informal resolution process.

And last, but not least, we have training content requirements for the Title IX coordinator and any of their designees. This must cover specific responsibilities applicable to the Title IX coordinator, any of their designees, specific actions that the Title IX coordinator must coordinate to prevent discrimination, ensure equal access for pregnancy or related conditions, which again, is covered later in the presentation, and then more broadly, the Title IX Coordinator’s responsibilities and supportive measures that they will coordinate.

This piece of it is new, that the training cover the school’s record-keeping system and record-keeping requirements. And then, as we see, there’s a general catch-all, any other training necessary to coordinate compliance with Title IX, and then all of the other training that was previously required for the other categories of employees, because of course, the Title IX coordinator should know what information is being provided for each component that’s implementing that Title IX process and the grievance procedures.

The Title IX regulations also provide definitional clarity on supporting pregnant and parenting students. They provide a definition of parental status, seen here, and then on the next slide, pregnancy and related conditions, again, providing that definitional clarity. I want to note that this is specific to students, and that as we see, there are certain responses that the school must provide and that the Title IX coordinator must coordinate, which we’ll walk through in the next slide.

The Title IX regulations provide that schools must not discriminate against any student based on the student’s current potential or past pregnancy or related conditions. Schools must also not adopt or implement any policy, practice or procedure concerning a student’s current potential or past parental family or marital status that treats students differently on the basis of sex.
And these requirements generally have not changed. They’ve always existed as an obligation of schools, and in fact, they may now, being seen in writing, align more closely with some of the trends that we’re seeing in state law and providing greater protections for pregnancy and pregnancy related conditions, as well as family and familial status. The Title IX regulations also specifically say that allowing a student to voluntarily participate in a separate but comparable portion of your program that’s offered to non-pregnant students is not prohibited discrimination. So it offers that clarity there.

Similar to the notification requirements that we discussed for confidential employees, non-confidential employees, specific, certain non-confidential employees, there are also notification requirements when it comes to information of a student’s pregnancy or related condition. So the student or the student’s designee triggers this employee notification obligation, and the obligation is that unless the employee reasonably believes that the Title IX coordinator has been notified, any employee informed by a student or their designee of that student’s pregnancy or related conditions must promptly inform the student of, one, the Title IX coordinator’s contact information, and two, the Title IX coordinator’s ability to coordinate specific actions to prevent sex discrimination and ensure their equal access to the educational program or activity.

Those specific actions are outlined within the Title IX regulations, and of course, schools have training requirements for all employees on these notification and information requirements. So just as we discussed earlier with training and employees walking out of training knowing what their obligations are, they should also know that generally their responses to a student informing them of their pregnancy or pregnancy related condition is, one, has the Title IX coordinator been notified, and two, here is the Title IX coordinator’s contact information, and here is the Title IX coordinator’s ability to coordinate specific actions to prevent and ensure their continued equal access to the educational program or activity.

In terms of those specific actions by the Title IX coordinator, the Title IX regulations provide that the student must be informed of the school’s obligations and be given the notice of nondiscrimination, as well as the school must make reasonable modifications to their policies, practices, or procedures based on consultation of the student and consideration of their individualized needs.

The Title IX regulations provide examples of reasonable modifications, which we suggest referring to, that this includes intermittent absences to attend medical appointments, breaks to breastfeed or express breast milk, and changes in the physical space or elevator access, allowing a student to sit or stand, to have water nearby. Those are just some of the examples that are provided there. What’s not reasonable though, or in terms of asserting that it’s not reasonable, is if the school can show modification that would fundamentally alter the nature of the educational program or activity. And of course, the student has discretion to accept or decline, and if that student does accept the reasonable modification, the school must then implement it.
Other specific actions for the Title IX coordinator to coordinate are allowing the student to voluntarily take a leave of absence to cover any period that’s deemed medically necessary by their healthcare provider, and that upon return the student be reinstated to the same academic status and as practical to any extracurricular activities that the student held before the voluntary leave. The Title IX coordinator must also ensure that the student can access clean, private, unintrusive lactation space that is not a bathroom for breastfeeding and expressing milk as needed.

Other specific actions by the Title IX coordinator to coordinate is that they must not require supporting documents, unless it’s necessary and reasonable to determine the reasonable modifications or other specific actions. The Title IX regulations provide examples of when additional supporting documentation is not necessary and reasonable, and that’s essentially when the student’s need for a specific action is obvious. That might be that they need a bigger uniform, or they have lactation needs, or that they’ve previously provided that documentation to the school. So again, the regs provide some examples to sort of flesh out this point here.

Additionally, another specific action that the Title IX coordinator is to coordinate is that they must treat pregnancy or related conditions in the same manner and under the same policies as other medical conditions with respect to benefits, services, policies, participation, and admission, among other categories.

And last, that the Title IX coordinator coordinate the specific action of not requiring certification from the student’s healthcare provider that the student is physically able to participate in a class, program or activity. And of course, that’s subject to an exception, that exception being that the physical ability or health is necessary for participating in that program or activity, that the certification of all students is required for participation, and that the school did not use that information as a basis for discrimination. That is the carve-out exception for this last specific action requirement here.

Pettegrew: Thank you very much, Debbie and Linh. And now we’ll spend our remaining time addressing some of the questions we’ve received. So Debbie, I think this first one should go to you. Can a third party file a sex-based harassment complaint on behalf of a student or employee?

Osgood: Thank you, Hillary. That seems like it should be an easy question, but it’s actually not that easy. The regulations say that a complaint may be filed by a student or a parent or someone that’s acting on behalf of a student or employee. And then it also includes, for cases not involving sexual harassment, that a complaint can be filed by a person participating or attempting to participate in the education program or activity at the time of the alleged sexual harassment.

So in terms of who can file a complaint for sex discrimination — student, employee, anybody attempting to participate — and for sex-based harassment, it’s student or employee. But that said, I want to point out that the school has an obligation, even if a complaint is not filed, the school has an obligation if they have notice of possible sexual harassment or sexual discrimination, they have a responsibility to respond. And that may trigger the Title IX complaint process, or it may just trigger the Title IX coordinator reaching out to the complainant to see what they want to do.

Pettegrew: Thank you. Debbie, another question for you. How do you advise institutions to handle verbal complaints, as opposed to written complaints?

Osgood: My recommendation is that institutions think very carefully about how to keep a record of the verbal complaints that they received, and that they’re going to want to have some process in place by which, if it’s a phone call or a meeting, that the conversation is somehow, it doesn’t have to be verbatim recorded, but somehow summarized so that there’s a contemporaneous record of what was alleged, what complaint was brought forward. The danger here, or the risk here is that if there’s litigation six months down the line, or a year or two down the line, or an OCR complaint and someone says they filed a verbal complaint and you don’t have any record of that, it’s hard to have a good way to defend against that claim.

Pettegrew: That’s a great point. Linh, a couple of questions for you, now. The first one relates to reporting. Do faculty who teach classes that discuss interpersonal violence have reporting obligations based on things they might learn through class discussions or assignments?

Nguyen: Thank you, Hillary. Unfortunately, it depends, right? It depends on the role of the faculty member, and it depends on the information that’s shared. The standard is that when that employee receives information of conduct that may constitute sex discrimination under Title IX. And again, going back to the role of the faculty member, are they someone with administrative leadership roles or are they head of their department? Do they have the obligation that they must notify the Title IX coordinator, or simply that they provide that information? I could see a scenario in which that information is shared, and unfortunately it would depend on the circumstances, so it’s hard to advise broadly, but that employee would want to look at those factors there in determining what are those next steps that are required.

Pettegrew: Okay, thank you. And then, a couple of training questions for you Linh. First, we already do annual training under VAWA. Can that satisfy the Title IX training requirements as well?

Nguyen: So VAWA will overlap. The training requirements there will overlap in some respects, in terms of the school’s obligation and some of the definitional terms, but it will not cover some of the newer training components, which are the notification and referral obligations and the reporting obligations by employees. So it will get you halfway there, but not quite there in terms of meeting those training obligations. And of course, with VAWA the training can be specific to students, and it is of course broader than Title IX’s training requirements that don’t technically speak to students, but they do speak to employees and the content that they receive.

Pettegrew: Okay. And I think this may follow up on something you just said. Is student training required under the new Title IX regulations? And then sort of a corollary to that, if it’s not, do you recommend it?

Nguyen: We recommend it as a best practice, just because it helps to build that consensus of understanding and culture on campus. They are not required as part of the new Title IX regulations, with the caveat, of course, for students who are also employees on campus. When they play that dual role, there is a training requirement component there. But I would say that it’s a best practice to train your students, and I think most schools at the post-secondary level tend to train their students, especially given VAWA’s requirements and that overlapping content there, as well.

Pettegrew: Okay, thank you. Debbie, here’s another one for you. If we are responsible for camps, conferences and others who are visiting our campus, how should we address Title IX issues if we don’t have jurisdiction over the parties?

Osgood: Thanks, Hillary. I think that’s actually a trick question, because I think the question is whether there are minors on your campus or students on your campus that are visiting and participating in camps or other conferences, or something that’s kind of a short duration, does the school have jurisdiction and an obligation to address any sex discrimination against that participant? And by the way, I said participant. I think you can tell the answer, which is it doesn’t matter what age the person is, it matters that they are participating in a program or an activity, an education program or activity that is being offered by the school. So if there is a camp on your campus, then yes, you would be responsible for ensuring that students participating in a camp on your campus are not subjected to sexual harassment, or if they are, there’s a way to address that. I will say that Title IX is the federal statute. There are also state law requirements related to mandatory reporters for child abuse. That’s kind of a separate issue, but also one that schools would want to be very much aware of.

Pettegrew: Okay. Debbie, another one for you. Would you recommend using the more robust grievance process under section 106.46 for all complaints, even when it’s not technically required? So for example, that would be in a matter that doesn’t involve sex-based harassment allegations with a higher education student as a party.

Osgood: I think there are a couple of considerations to think about here. First, if you are a public institution subject to the constitutional due process requirements, you’re going to want to be very careful about not offering a hearing, and you’re going to want to pay careful attention to the case law in your particular circuit. In order to provide somebody due process as part of a disciplinary process, what is required, and does the case law in your area say that a hearing is required. So, for public institutions it may be dependent upon the case law.
The other thing I would say is that for smaller institutions, certainly resources are going to come into play, in terms of how many people you want to have involved in your process, whether you want to use a single investigator model or you want to involve a hearing officer or other decision-maker. So there are a couple of considerations to keep in mind. I don’t have a one-size-fits-all. I think that you really have to make a risk assessment, understanding the law in your particular state.

Pettegrew: That makes a lot of sense. Thank you. And Linh, one more for you. If a student who claims sexual assault by another student while they’re both studying abroad experiences lingering effects of emotional distress, such as anxiety and depression, after they return, would those responses be considered harm that impacts students at the home institution for Title IX purposes?

Nguyen: Sure. So the Title IX Regulations contemplate a similar scenario, not quite exactly the same, given that there are these lingering effects of emotional distress by the student. But the Title IX guidance essentially says that the school has an obligation to address a sex-based hostile environment under its education program or activity. And that’s even if the alleged conduct that occurred happened outside of the school’s program or activity, or outside of the U.S. But the integral part is that that conduct creates or contributes to a sex-based hostile environment in the school. Here, I assume that both students are at the same institution and are back within the program or activity in the U.S. So it may be the case that their continued interactions are contributing or creating a sex-based hostile environment that the school does have an obligation to address.

Given, perhaps, if not, if it’s just the student who is experiencing that emotional distress and there’s no further interactions with the other student, the school may still have an obligation to provide supportive measures to that student as part of its compliance requirements with 106.44. But again, I would say there’s been a more broadening in terms of that applicability and scope for capturing this exact instance of conduct that happens outside of the U.S in a study abroad program, but that continues to affect students within the school when they return.

Pettegrew: Okay. And let me slide an extra one in there for you, Linh, because it is somewhat related. The question is, how, if at all, would these regulations impact third-party study abroad vendors that many institutions use?

Nguyen: Yeah, so I think it would depend on those third-party vendors. I don’t think they would necessarily meet or fall within that definition of employee for the reporting obligations, so it is hard to imagine that they would have training requirements or education requirements there. It’s certainly an open-ended question, as I’m hearing the question. I don’t know if, Debbie, you have a stronger thought on this. It seems to me though, that depending on that relationship, it may be the case that they are outside of the Title IX obligations or reach, if they truly are in fact a third-party vendor.

Pettegrew: Yeah. Debbie, do you have any thoughts on that? I mean, it’s primarily the institution, of course, that has the Title IX compliance obligations. So would it be up to the institution, for example, to monitor and require certain actions by any vendors they use?

Osgood: You just answered your own question. Absolutely. It’s important that it is the institution’s responsibility. So the institution may want to ensure that the vendors are trained. Even if not technically required by Title IX, you may want to make sure that there’s appropriate training.

Pettegrew: Okay.

Nguyen: Yeah, as I’m thinking through it, there may be. In terms of the definitional change to quid pro quo harassment, it’s brought into conduct by an employee agent or other person authorized by the school, so that may capture those third-party vendors. But overall, I would say I agree with Debbie, it is a best practice to just train those third-party vendors, given their interactions with the education program and activity.

Pettegrew: Okay. Thank you. And one final question. Debbie, I’ll direct this one to you. You mentioned early on that there is a pending litigation, some of it brought by state attorneys general, challenging these regulations. How do you recommend schools react to that? Should they proceed as if the Aug. 1 effective date is set in stone and just be prepared to comply as of Aug. 1?

Osgood: Yes, they should proceed to comply as of Aug. 1, I think particularly since there’s just not that much time left to get your policies and procedures changed and the people you need to have trained, trained appropriately. It is possible that there will be some, perhaps, injunctive relief or other changes that are made to the regulations at some point going forward, but we don’t have that yet.

I also wanted to point out that the Title IX regulations themselves say that the obligation to comply with Title IX is not obviated or alleviated by any state or local law that conflicts with Title IX. So from the federal government’s perspective, the federal government wins, and that the Title IX preempts any efforts on the part of the state.

All of this is in the context of some case law and pending Supreme Court cases relating to the deference that we pay to federal agencies and their rules. So I would stay tuned for updates as these state law cases and these Supreme Court cases could affect some of this, but at this point, time is short and schools should proceed to implement these new regulations as if they are set in stone.

Pettegrew: And that is all the time we have today. I’d like to thank all our audience members for participating and extend another very special thanks to our excellent speakers, Debbie Osgood and Linh Nguyen. UE greatly appreciates your time and expertise. And that concludes today’s program.