By Jeanne Meyer, M.S., J.D., Consultant, TNG
The proposed regulations represent a mixed bag in terms of staffing. Some teams will stay the same size. Some will need to expand. Some will contract. Chances are that you have invested significant time and resources into training and preparing your Title IX Team members to serve in various roles under the 2020 Title IX regulations. You may have successfully advocated for additional staffing, too. Now the proposed Title IX regulations (published by the Department of Education on July 12, 2022) envision more process flexibility and potential for role overlap, creating some uncertainty about how best to leverage your team’s expertise. As schools and colleges prepare for regulatory change in 2023, Title IX Coordinators should reassess their staffing levels and should spend time planning how to keep members of the Title IX Team engaged in future compliance efforts to maintain resources and momentum for your Title IX program.
Decision-makers/Investigators/Informal Resolution Facilitators
The proposed rule (“NPRM”) no longer requires postsecondary institutions to provide a live hearing and also permits a Title IX Coordinator or investigator to serve as both the investigator and decision-maker for the same complaint. However, some federal circuit court decisions and state laws will still require a live hearing with the opportunity for cross-examination. Goss hearings are still required for K-12 school suspensions and expulsions. Make sure you know the specific requirements in your jurisdiction before you decide to use your Title IX coordinator as both investigator and decision-maker. To ensure appropriate separation of roles, consider how you will use your existing team members and how many staff members you need to see a complaint through from intake to resolution, including alternates to avoid the potential for bias or conflicts of interest.
ATIXA recommends having someone other than the investigator serve as the decision-maker, especially when a live hearing is provided or required. Just because federal regulations allow for a practice does not mean institutions should adopt it, and it does not guarantee that courts will support the practice. The federal regulations set the floor for what institutions must do at a minimum, but most institutions strive to exceed the floor. Deference by courts to Title IX regulations does not require them to circumvent the Due Process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution. Many institutions will also find it culturally complicated – if not impossible – to remove rights that are currently afforded to students and employees, and which have been in place since August of 2020.
What are ATIXA’s recommendations on this? Only the smallest and most resource-strapped schools should empower Title IX coordinators to investigate, because staffing up is not an option. The same is true for having the coordinator or investigator serve as the decision-maker. This model should be the last resort when there is no other choice. And you should provide for at least one level of appeal. Anybody can make mistakes. Appeals allow for internal correction, before the mistake is corrected for you by OCR or the courts. For any institution that can afford to exceed this floor, you should, and you will be glad you did. You’ll generally provide stronger work product, better decisions, and more effective management of risk.
Whether you plan to use a single decision-maker or a panel to decide complaints when the new rule becomes effective, your existing trained decision-makers are a valuable resource. Trained decision-makers will be in a great position to aid in whatever resolution structure you adopt. Decision-makers can also be repositioned as investigators, advisors, deputies, if needed, given overlapping knowledge and skill sets. To determine the best approach under the revised rules in 2023, you will need to determine what structure works best for your institution or district.
Postsecondary institutions that will continue to provide live hearings will want to ensure they have adequate numbers of decision-makers and advisors. K-12 schools and postsecondary institutions that will not use hearings and which task investigators with a decision-making role will need to ensure training for those team members consistent with new regulatory requirements. Here are some questions to ask as you determine how best to use the team members you have trained:
- Do we have enough investigators and decision-makers to address increased reporting that will likely result from expanded jurisdiction under the proposed regulations?
- Will our postsecondary institution continue to provide live hearings? If so, do we have an adequate number of decision-makers?
- Will our institution/school use decision-makers (even without a hearing) who are not the coordinator or investigator? If so, do we have enough adequately trained decision-makers for this need, especially considering the potential increased complaint volume noted above?
- Will investigators have a role in decision-making? If so, are our current investigators adequately trained to serve as decision-makers? Do we have the right people in place in terms of analytical skills and judgment?
- Does the Title IX Coordinator have the capacity to serve as a decision-maker?
As far as predicting team expansion or contraction, it may depend on how you count heads. In 2021-2022, a strong outsourcing trend took hold in both K-12 and higher education. So, while the formal headcount of your Title IX team may have decreased, it is often because more and more schools are engaging external providers as investigators, hearing officers, Title IX administrators, advisors, and appeal officers. We expect that trend to continue under the 2023 regulations.
Responding to Off-Campus/Out-of-School Conduct
The proposed regulations expand Title IX jurisdiction well beyond what is dictated by the 2020 Title IX Regulations. The proposed rule posits that an educational institution should respond to alleged sex-based discrimination that occurs outside the education program or activity, including off-campus as well as outside the United States. This provision will allow schools to address out-of-program harassment where an alleged in-program hostile environment results and the initial conduct “contributed” to the in-program hostile environment. This provision will also allow schools to address sex-based discrimination that occurs out of school or off-campus if it has an in-program effect. Schools may want to consider additional monitoring of students’ out-of-school behavior to determine if it “contributes” to any in-program hostile environment. K-12 schools may need to enlist the help of parents/guardians, school bus drivers, coaches, club advisors, and others to help determine if out-of-school behavior is contributing to an in-program hostile environment.
If schools are investigating behavior that occurs off-campus (including outside the U.S.) and outside of the education program or activity, they should ensure that members of the community are aware of this expanded new practice. Partnering with existing Title IX Team members can assist community members in understanding the school’s culture and climate around discrimination and will help schools to prevent the creation of hostile environments.
Your trained decision-makers may also be useful as you look to appeals. The NPRM continues to require appeals for procedural irregularities, new evidence, and alleged conflicts of interest or bias under §106.46, which applies to postsecondary institutions. The proposed rule will also add an appeal opportunity for parties to seek modification or reversal of imposed or non-imposed supportive measures. This is a new position for most institutions and will likely require some expansion of the team and enhanced vigilance about potential conflicts of interest. Trained decision-makers are well-positioned to function, with perhaps a little additional training, as appeal decision-makers.
The proposed regulations permit schools to offer informal resolution processes at their discretion when appropriate, and with the approval of the Title IX Coordinator. Trained team members may be able to serve as informal resolution facilitators, with appropriate training. Advisors and decision-makers understand the unique complexities of sexual harassment complaints and can use that expertise to assist the parties in determining the best resolution method for their circumstances. Advisors receive training in listening and reframing, both necessary skills for informal resolution. Decision-makers also receive training in listening and determining the essential elements of any complaint. With additional training, either may be repositioned as impartial informal resolution facilitators.
Training and Programming
The proposed rule allows postsecondary institutions that currently designate all non-confidential employees as mandated reporters to maintain that practice, as it will satisfy the proposed regulations. However, postsecondary institutions that have adopted the Officials with Authority (OWA) construct and do not require other employees to report will need to add a category of employees for mandated reporting that includes employees with responsibilities for administrative leadership, teaching, and advising.
Presently, trained advisors and decision-makers may be positioned to offer mandated employee training to both “Officials with Authority” and “Employees with Administrative Leadership, Teaching, or Advising Roles.” The latter category expands the reporting requirements for faculty and staff even if they do not have “authority to institute corrective action.” Given this new obligation, postsecondary institutions are required to provide this group with specific training on how to appropriately report or refer matters related to Title IX. If broad mandated reporting policies are maintained by K-12 schools, that designation carries with it an obligation to train those employees on the mandated reporting policy and expectations.
Many schools’ trained advisors and decision-makers are likely employed in roles that fall within one of these categories and may be able to expand or develop training opportunities for leadership, teaching, and advising roles. Training is an area ripe for assistance from all team members. They can both be trained and serve as trainers for others. With the inclusion of new required training topics such as non-sexual harassment, sex-based discrimination, and gender equity, team members may offer support in creating and delivering related prevention education and awareness programming to students and employees. Including topics and programs related to gender equity in annual training may improve school culture and result in reduced sex discrimination claims. Training on these topics would expand most trainees’ understanding of sex discrimination beyond sexual harassment and improve the institutional climate for all.
This is not an exhaustive list of all the ways recipients may continue to use their team members, but it is designed to allow recipients to anticipate and start preparing for any changes resulting from the proposed regulations. Making decisions about team roles before any potential implementation timeline will help your school to be better prepared for the changes to come.
 Goss v. Lopez, 419 U.S. 565 (1975).
 Official with Authority or OWA means a recipient employee who has responsibility to implement corrective measures for harassment, discrimination, and/or retaliation on behalf of the recipient.