Page 85 - Security Today, January/February 2021

In short, Title IX’s prohibition of sexual harassment – and each school’s commitment to protecting its students and staff – is not going away. But the disciplinary process will look dramatically differ- ent now.
Summary of What Is Changing
The new regulations consist of approximately 30 pages of dense legal language accompanied by a 2,000+-page preamble. Although the new regulations are complex, their overarching goals can be boiled down to two simple concepts.
The first is a narrowing of the definition of sexual harassment from that employed by the Obama administration. Fewer forms of sexual harassment now fall within Title IX’s scope. What happens in local bars, off-campus apartments and study abroad programs, for exam- ple, typically will not trigger a school’s Title IX responsibilities. Even on-campus, expressive sexual harassment must be both severe and pervasive to constitute sexual harassment under the new Title IX regulations.
Given this narrowing, it is important to understand that the new regulations do not prevent schools from addressing and disciplining forms of sexual misconduct that fall outside of Title IX. Instead, schools may exercise discretion to address those forms of sexual mis- conduct as they wish, rather than being bound by the regulations (and accompanying highly formalized procedural requirements) that apply to the processing of Title IX complaints.
The second overarching goal of the rule is to build in more “due process” protections for respondents. These protections include for- mal written notice of allegations; enhanced opportunities to review and comment on evidence; and live hearings that include cross- examination of the parties, witnesses and investigators themselves. Absent exceptional circumstances requiring immediate removal, the respondent in a Title IX sexual harassment matter may not be disci- plined in any way prior to being found responsible at the conclusion of a formal hearing.
The likely result is that fewer sexual harassment allegations will make it to a formal Title IX hearing. But that doesn’t necessarily mean that there will be fewer reports of sexual misconduct or, as discussed more fully below, that schools should ignore those reports.
Where Schools May Still Need Help
While all schools were required to implement the new regulations as of Aug. 14, getting new systems fully in place is likely to take months. A top priority for every school will be deciding what to do with
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cases of unwelcome conduct that are no longer considered Title IX sexual harassment.
One option is to remove those cases from the Title IX Office and to send them to Student Affairs (or to Human Resources if the offender is an employee) to be addressed like any other disciplinary matter. Another option is to keep those cases in the Title IX Office and to adjudicate them in accordance with pre-August Title IX procedures.
Among our clients, we have seen a trend toward the second option, but the decision depends in large part on how smoothly a school’s Title IX procedures were working prior to the implementation of the new regulations. If the previous procedures were dysfunctional, directing “non-Title IX” allegations to Human Resources or the Office of Student Conduct may be a more appropriate choice.
Because the scope of the law has been narrowed, there will be fewer Title IX complaints that proceed through the stages of formal Title IX investigation and adjudication. But the formal requirements that apply to those complaints are sufficiently sophisticated that more schools will require the assistance of outside counsel to investigate allegations and hold hearings. Schools are likely to see more students (and staff) retaining attorneys to represent them in campus Title IX hearings, further incentivizing schools to have the hearings run by their own lawyers or at least staff members who have received exten- sive training and are comfortable in a legal environment.
Schools should also consider hiring outside counsel if an employee is accused of Title IX sexual harassment. The new regulations present schools with a set of thorny and unwieldy issues when it comes to applying both Title IX and employee-protection laws such as Title VII of the Civil Rights Act. A number of specific conundrums can arise (including some involving the special protections for tenured faculty), so schools would be wise to seek help in dealing with these issues.
The changes imposed under the new Title IX regulations are sig- nificant and may be onerous for schools to implement. But adminis- trators should remember that more is staying the same than changing and that campus communities need reassurance that the school’s commitment to preventing and addressing sexual harassment remains intact. Schools may also find it valuable to partner with out- side counsel to ensure their Title IX teams have the training and sup- port that they need to comply with the new requirements.
Sarah Ford and Josh Whitlock are both freelance writers.
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