As of August 14, 2020, a mere one hundred days after their initial release, changes to Title IX are in effect and the Department of Education (ED) now expects institutions to be in compliance with these sweeping new rules. Given the significant attention ED paid in the 1400+ pages of regulations to changes in procedures and processes for addressing campus sexual discrimination and misconduct, many campus administrators have focused much of their efforts on revising and enacting new policies and procedures to ensure institutional compliance with these recent changes to Title IX regulations.
This focus makes sense. After all, when it comes to education and training, the bulk of the federal requirements stem from the Clery Act—and the Clery Act requirements haven't changed. However, there are some subtle, but important changes related to the new Title IX regulation that college and university administrators should ensure are incorporated into their education and training efforts for students. As one of the leading providers of sexual assault prevention education, we spent every waking hour of those 100 days reviewing every moment of every course in our catalog of sexual harassment and violence prevention courses, and along the way, we’ve identified common “hotspots” that warrant further review. Here are the top five questions to ask about your training efforts for Title IX compliance:
New changes to Title IX regulations eliminated the proscriptive category of “Responsible Employees” —employees with mandatory reporting responsibilities—that was set forth in earlier, now-rescinded, OCR guidance documents. In its place, ED now enables institutions much greater say to determine which employees have mandatory reporting responsibilities. If your student Clery Act & Title IX training materials include the term: “responsible employees,” it is a good clue that an update is needed to ensure that you’re not confusing students about faculty and staff responsibilities. This leads us to question #2.
If you’ve made changes to the reporting responsibilities of faculty and staff, make sure you update this information in your Clery Act & Title IX trainings for faculty, staff, and students as well. It is especially important to ensure that you’re accurately identifying those employees that are required to report information to the institution and those that are designated as confidential resources.
This information helps students to make informed choices about how they share their experiences based on their needs and desired outcomes. And while this list focuses on student Clery Act & Title IX training, it’s important to also note that faculty and staff also need to be informed of any changes to their responsibilities, and be appropriately trained on institutional expectations for responding to student disclosures.
Be sure that your training incorporates new ED mandates for “accessible reporting to the Title IX Coordinator.” This mandate requires that contact information for the Title IX Coordinator be prominently displayed (including on the institution’s website) and include information on how to report in person, by mail, telephone, email, or “by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report.” Student Clery Act & Title IX trainings should include information on how students (or anyone else, regardless of whether they are the subject of the alleged sexual harassment or sexual misconduct) can report the information 24 hours a day, seven days a week. If you've recently expanded or changed options for reporting Title IX concerns, now’s the time to ensure you’ve updated your training as well.
That house-party scene? The off-campus tailgate example included in your student Clery Act & Title IX training? It may be realistic, but check and make sure you’re not unintentionally setting expectations related to Title IX that no longer hold true.
A number of the big changes in the new ED regulations relate to where institutions must address incidents under Title IX. The new regulations explicitly note that Title IX protections cover persons in the United States, so any scenarios that involve students participating studying abroad or situated on satellite campuses outside the United States need to be updated to reflect that, while other student conduct measures may be used, Title IX processes may not. The same is true for off-campus activities that are not “locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurred”.
So, that house-party scene? The off-campus tailgate example included in your student Clery Act & Title IX training? It may be realistic, but check and make sure you’re not unintentionally setting expectations related to Title IX that no longer hold true. And fraternity and sorority houses? Those and any other housing owned by student organizations are still under Title IX jurisdiction.
The new ED regulations delineate a number of mandated disciplinary process institutions must adopt, that are intended to strengthen the due process for respondents and treat both complainants and respondents equally (until that is, there is a determination of findings). Now’s a great time to review your Title IX course materials and make sure that you’re including information about the nature and scope of supportive measures available for complainants and (if appropriate) for respondents and reinforcing that respondents are assumed to not be responsible prior to a final determination.
When it comes to issues of sexual harassment, Clery Act & Title IX training programs should pay attention to ED’s concern that institutions not impinge upon free speech by reviewing the examples in their training and ensuring that they would be considered “severe and pervasive and objectively offensive conduct, effectively denying a person equal educational access”—a higher threshold for sexual harassment based on speech and expressive conduct than set forth in previous guidance.
Even the most effective Clery Act & Title IX training and education will fail to promote change if they’re not broadly deployed and completed by students. No matter your training approach, make sure that you are able to consistently track that your students have received their training and that they’ve completed it. These records will support your Clery and Title IX compliance efforts—especially if your training is a vehicle to share your changes to Title IX policies.