It has been well over a year since the Department of Education issued its proposed regulations under Title IX of the Higher Education Act for notice and comment and we are quickly coming up on the first anniversary of the date that the period for comments closed.
Amidst reports in the media that the Department intends to release the final regulations any day, here are five things that colleges and universities should do or be aware of in preparation for the final regulations:
- Identify the Team. Regardless of what the final regulations may contain, every educational institution will need to review its policies and processes to ensure that they are compliant with the new regulations. Now is the time to determine who on campus will be responsible for that review and who will be involved in the process. At some campuses, faculty, students or even community advocates may need to be part of the process. Laying the groundwork now for who will be involved in reviewing and revising your policies will save time when the regulations are announced.
- Prepare to Choose the Standard of Proof. The Proposed Regulations allow institutions to choose either the clear and convincing or the preponderance of the evidence standard of proof for their internal disciplinary proceedings for alleged violations under Title IX. Colleges and universities, however, may only use the preponderance standard if they use that standard for student conduct violations that do not involve sexual harassment but carry the same maximum disciplinary sanction. Also, the standard used to determine student violations must be the same that is used for determining violations by “employees, including faculty.” So, if your campus uses something more demanding than a preponderance of the evidence standard for any student conduct process that has the sanction of expulsion (assuming that expulsion is the maximum sanction your institution uses for sexual misconduct), you may not use a preponderance standard for sexual misconduct, unless you also change the standard to preponderance of the evidence for the other student conduct process. Also of note, whatever standard your campus uses for employee (including faculty) violations must be used for students.
This provision is problematic in that, among other things, it assumes that institutions currently use the same standard for faculty and staff. In any event, now is the time to review all student conduct processes used on your campus to determine the standard of proof currently in place as well as the standard of proof currently employed in faculty and staff sexual misconduct proceedings. You will need this information to understand the landscape your institution faces if this provision of the regulations is finalized without change.
- Prepare for Hearings. Despite the large number of comments received by the Department raising concerns about the portions of the proposed regulations requiring colleges and universities to provide live hearings before a student may be found responsible for a Title IX violation, this provision is expected to remain in the final regulations. If your campus process does not currently include a live hearing, and especially if your campus relies on the “single investigator” model, now is the time to begin discussions with campus partners to make sure that they understand that live hearings will almost certainly be a feature of the new regulations. Begin discussions about who on campus will be able to preside over hearings where students can be assisted by an attorney as an advisor and the presiding officer may be required to, among other things, make evidentiary-like rulings. Beginning conversations with campus partners on these questions now will serve you well when the regulations hit the street.
- Do Not Panic. Everyone expects that the Department will give educational institutions some time before the new regulations take effect. It would be extraordinary if the new regulations went into effect before the fall 2020 semester begins.
- Expect Continued Uncertainty. Congress is reportedly working on legislation that would block or make some of the proposed regulations obsolete. And, despite healthy skepticism about the effectiveness of any current Congressional efforts, there also is a possibility that the final regulations may face legal challenges right out of the gate, which, if successful, could at least pause their implementation. In addition, given the possibility of a change in presidential administrations in early 2021, the regulations may be short-lived, even if they do go into effect in the coming months.
Regardless of activity on the proposed regulations, Title IX remains an area of high interest for the Office of Civil Rights and for students and faculty who are frequently using the courts to protect their rights. Colleges and universities can expect this area to be active for some time to come. If you have questions about what Title IX regulations may mean for your institution, please contact Audrey Anderson.