An Educational Institution’s Survival Guide for the Proposed Title IX Regulations
Friday, December 14, 2018 at 2:43PM
Gabrielle I. Weiss
What Happened?
On November 16th, 2018, the Department of Education released its proposed revisions to the Title IX regulations, illustrating an overt emphasis on equal treatment of the complainant and respondent, and affirming Due Process rights for the respondent. The proposed changes suggest that, if the regulations are ratified in their current form, many educational institutions will need to revise their current Title IX policies and required procedures.

The Rundown
We address here some of the proposed changes that will substantively modify educational institutions’ Title IX obligations. Some proposed changes lessen the obligation on educational institutions, while other proposed changes significantly increase their Title IX obligations.

The following guide consists of a list of some of the more significant changes in the proposed regulations. If enacted, educational institutions can use this guide to determine what, if any, changes will need to be made to bring their Title IX policies and procedures into compliance. We have rated each of the proposed changes below on a lesser obligation to greater obligation scale compared to the Obama Administration’s Title IX regulations.
  • Notice to the Institution – sexual harassment is defined more narrowly and an institution’s obligation to respond to allegations of sexual harassment commences only once an institution has “actual knowledge” of alleged violations.   lesser obligation
  • Required Response Limited to Campus-Sanctioned Programs or Activities – educational institutions only need to respond to complaints of misconduct that take place at a school “program or activity.”   lesser obligation
  • Who is Required to Report Allegations of a Title IX Violation – only certain employees of the educational institution trigger the obligation for the educational institution to respond to an alleged Title IX violation.   lesser obligation
  • Procedure Once an Institution Has Received Actual Knowledge – 
(i) Treat complainants and respondents equitably;   same obligation
(ii) Evaluate all relevant evidence, including both inculpatory and exculpatory evidence;   greater obligation
(iii) Ensure that coordinators, investigators, or decision-makers do not have conflicts of interest or bias against either the complainant or respondent;   greater obligation
(iv) Rely on the presumption that the respondent is not responsible for the alleged conduct unless proved otherwise at the conclusion of the grievance process;   greater obligation
(v) Complete the grievance process reasonably promptly;    lesser obligation
(vi) Describe the range of possible sanctions and remedies;   same obligation
(vii) Describe the standard of evidence to be used to determine responsibility;  same obligation
(viii) Describe the procedures and bases for appeal; and   same obligation
(ix) Describe the range of supportive measures available.   same obligation
The Take Away – How We Can Help
There are several changes in the proposed regulations that, if instituted as written, would require modifications to many current Title IX policies.  We can help with not only the revision of these policies, but also with the training of Title IX personnel to ensure full compliance throughout the Title IX process.  Further, we have substantial experience conducting Title IX investigations and preparing written investigative reports.  

Given the potential requirements for a more formalized hearing structure, we can also provide guidance and advice to hearing panels and help formulate written determinations post-hearing.  Please let us know how we may otherwise assist you in ensuring compliance with the revised regulations should they ultimately become instituted.

Our Team
Kevin E. Raphael, Esq.
Lourdes Sanchez Ridge, Esq.
Christopher A. Iacono, Esq.
Leslie A. Mariotti, Esq.
Gabrielle I. Weiss, Esq.
Article originally appeared on White-Collared (http://www.white-collared.com/).
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