September 18, 2020
Amanda G. Orcutt
The U.S. Department of Education released new regulations this spring under Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in education programs or activities receiving federal financial assistance. The regulations took effect on August 14, 2020, leaving many institutions to spend the summer months updating their policies to come into compliance with the new requirements. The new regulations also require robust training for Title IX Coordinators and other decision-makers at every institution. Now that Title IX policies presumably have been updated, institutions should shift focus to the training requirements under the new regulations and develop a compliance plan. If they have not done so already, institutions must schedule Title IX trainings soon.
Who must be trained?
The new regulations require that “Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process” must receive training. These are the key members of your Title IX team. Start with everyone identified in your Title IX policy as a person to whom a formal complaint may be made. At a minimum, trainings should include Title IX Coordinators and anyone who may serve as an investigator, hearing officer, mediator, and anyone who may decide an appeal. Keep in mind that the “decision-maker” (the hearing officer or the person who makes a finding regarding a policy violation) cannot be the same person as the Title IX Coordinator or the investigator. Further, appeals cannot be heard by the decision-maker, the investigator, or the Title IX Coordinator for that particular case. Because the regulations focus so much on avoiding bias and conflicts of interest, institutions should consider training multiple people to serve in each of these roles in the event a conflict or bias issue arises.
Institutions should also provide some training to employees they have deemed responsible to receive and report potential Title IX violations. Under the new regulations, institutions must act only when an employee “who has authority to institute corrective measures” has “actual knowledge” of alleged sexual misconduct. Under the prior regulations, institutions were required to act when “responsible employees” knew or should have known of alleged sexual misconduct. Many institutions defined “responsible employees” broadly to include nearly all faculty and staff. Given this narrowing of responsibility, institutions can decide whether to keep this authority limited to the Title IX Coordinator and other members of the Title IX team, or to continue to interpret who is responsible to act more broadly. If an institution chooses a broad approach, those employees should receive training as well. This training can be limited to reporting protocols, response procedures, and potential interim measures available to students. Institutions should be very clear to their faculty and staff as to who is responsible for reporting and who is not.
What must the Title IX training cover?
The new regulations specify that the Title IX training must cover the following areas: the new definition of sexual harassment; the scope of the institution’s education programs where the Title IX policy applies; how to conduct an investigation; the grievance process including hearings, appeals, and informal resolution; and how to serve impartially to avoid bias and conflicts of interest.
The current Department of Education administration has been focused on ensuring that institutions do not exhibit bias toward complainants in their Title IX policies and procedures. Accordingly, trainings and training materials should cover this topic in-depth. Be sure to train your Title IX personnel on what bias is and is not and when a conflict of interest exists and does not. For example, on many small campuses, everyone knows each other. Simply knowing the complainant or respondent does not itself create bias or a conflict of interest. Title IX personnel should be trained to ask themselves if they can be a fair and neutral judge of the evidence before them. They should also learn that sexual misconduct can be perpetrated by men and women and that men and women can be victims.
The new regulations require that training materials are made publicly available on the institution’s website. Institutions must carefully review training materials to ensure that no evidence of bias or sex stereotypes exists. Simple things like citing a study or article that appears to favor victims of sexual misconduct may be used against an institution later to show bias. Ensure that hypothetical scenarios provided in training materials use all genders in both the complainant and respondent role. Be careful using words that assume culpability like rapist or victim.
Make sure your training walks through your institution’s entire Title IX process, beginning with the receipt of a complaint. Train staff on when an investigation is required, interim measures that may be available to both complainants and respondents, and options for informal resolution or mediation, if available.
Your training should emphasize that investigators and hearing officers are neutral factfinders. Investigators must be trained to conduct fair and impartial investigations. Hearing officers and decision-makers at the hearing must be trained to conduct fair and impartial hearings. They should be trained to determine what evidence is relevant and how and when to exclude irrelevant evidence. Hearing officers must be well-versed in the proper procedure for conducting cross examination, which is now required. Hearing officers must also be trained on how to apply rape shield protections for complainants regarding questions and evidence about a complainant’s prior sexual behavior. Because the new regulations require recording and allow for live hearings to be conducted in separate rooms, hearing officers must be trained on how to use all appropriate technology.
When must training occur?
The new regulations do not specify when the training must occur, how long the training must be, or how often it should be provided. Title IX personnel and employees responsible for reporting policy violations should be trained as soon as possible. Ensure that new personnel are trained before their names appear in the policy or on the website. Although Title IX Coordinators or other Title IX personnel may conduct the training, it is often helpful to use and outside agency or expert to further establish lack of bias.
The Mitchell Williams Education Law team conducts Title IX training for education institutions. Contact Attorney Amanda Orcutt at aorcutt@mwlaw for more information.
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