Title IX Update Notice of Proposed Rulemaking Webinar
Get Inclusive, in partnership with ATIXA, delivered a Title IX update webinar on July 6, 2022. This page includes the webinar recording, transcript, presenter bios, and Q&A summary. For the latest information and updates on Title IX, visit the resources page for ATIXA (here). For more information about Get Inclusive's products and services, please request a demo here: getinclusive.com/demo
Speaker 1 [00:00:02] Welcome to the 50,000 foot 60 Minute Overview of the 2022 Title IX proposed regulations. Sure enough, just as soon as we thought we'd gotten phrases like proposed regs out of our vernacular, they are back in. And for those of you who've been in the field for a couple of years, this may start to feel a little familiar. And yes, this will be the second time in the last couple of years that we've seen new proposed rule making to enact the requirements under Title IX.My name is Joe Vincent and I'm a partner with TNG and I'm an advisory board member for the Association of Title IX Administrators, one of our member associations that is supported by the work of TNG. Their sister organization is the NABITA, the National Association for Behavioral Intervention and ThreatAssessment. And along with my colleagues, we're very happy and pleased to have this opportunity to partner with get inclusive in order to share sort of some of our perspectives and help maybe briefly unpack what the new notice of title and Regulations actually includes. That said, it really is I chose 50,000 feet, but we could probably go higher. This is a high-level overview of what's contained in these proposed regulations will likely because we can't help it.And we work in this field and we enjoy the sort of intricacies of figuring out adequate application in appropriate compliance with the rules will probably spitball a little bit about what it look, what it looks like when the rubber meets the road. But for the most part, we're going to try to stay broad and describe to you some of our initial takes regarding the new proposed regulations. Now, what's interesting at the bottom of that slide, let me just point out, I don't think any of you would make the mistake of construing what's about to be shared with you as legal advice. Your institution likely has some very competent legal advisors and counsel who can speak to the particular efforts of your institution. But. But we will give you our perspectives. And in drawing on a lot of experience at TNG, typically those are fairly well informed perspectives. And some of that brain trust is contributed to by my esteemed colleagues who are joining me for this 60 minute ride with you today. And I would love for you to be able to meet them as well. You're going to hear more from them here in just a little bit. But let's start with Alicia. Would you introduce yourself, please?
Speaker 2 [00:02:53] Yeah, absolutely. Thanks, Joe. So, Alisha Carter-Harris. I am a consultant at TNG, working primarily with ATIXA. And I'm so pleased to be here with you all this afternoon or morning, wherever you are.
Speaker 3 [00:03:08] Howdy,My name is Mikiba Morehead. I'm also a consultant with TNG and primarily focused on supporting ethics and members. So happy as well to be with you this afternoon.
Speaker 1 [00:03:19] Yeah, we'll go with the afternoon. I mean, I think that catches the majority of the country at this point. If you're on the West Coast, we have so much jealousy that we're not even going to acknowledge that it's still morning time for you because we just all want to be where you are. You will notice on the next slide and I'm going to be saying that awkward thing on the next slide, what you'll see because Preston is actually driving the slides and so he's doing a great job. Thanks, Preston. Our progression today will likely mirror the way you think about compliance with Title IX overall. Right. So in terms of drafting an appropriate policy that includes the sort of applicability considerations and other jurisdictional considerations like the definitions of prohibited conduct and the scope and application of the policy as it relates to people and programs and geography. There are some interesting features to point out in there's as it relates to those considerations. What will move from there into a discussion of, you know, what you probably would think of as like intake or notice, or what do we do whenever we learn information and what process is required for processing that information so that it ultimately lands in the right on the right desk and can be dealt with appropriately? That's reporting and other responses to disclosures. After that, we'll talk about intake. You see that phrase, preliminary inquiry. Many of us are very glad to see that back. You've likely had the language of initial assessment that you use for the last couple of years as it derived from the 2020 Title IX regulations. But we really see a move back towards a more robust preliminary inquiry in the proposed regulations. And we'll talk to you about that a little more. Then we move into you see how this sort of progresses from intake to evaluation to notice then to investigations. Certainly, investigators, we get kicked around, right. All of us that are investigators or have been investigators, our work has shifted dramatically from pre-2020 to this period under the current regulations and the proposed regulations, even foretell of some more changes to potentially to the way investigators do their work and then on to decision making. We'll make a few observations about K-12 and the distinct application in that environment. I understand Get Inclusive draws primarily from a higher education audience, but I think I heard a mention of at least a couple of school districts that are on the line with us today. And so we'll make some K-12observations and then we'll wrap up with pregnancy, a new feature in many respects as it relates to regulatory oversight and some interesting new obligations and scope that attaches to considerations related to pregnancy. So let's start with scope, right. We have any good conversation about Title IX begins with a discussion of, okay, what's actually not allowed. And if we if we shed all of the legal speak for a minute or several would be my preference, if that's okay with you. What we're talking about with scope is a couple of different things. One is what's actually not allowed, right? Your policy sets the rules and prohibited conduct envisioned under the proposed regulations is likely broader than your current Title IX derived policy addresses. And thankfully this round of proposed regulatory action sort of puts its arms around prohibited misconduct in a way that we've all always acknowledged it should. But we've had to address in a little bit of a bifurcated way under the current regulations where sexual harassment is set apart from all other forms of sex-based discrimination. And we've had a very rigid procedure for addressing sexual harassment where there wasn't nearly as much regulatory proscriptions that attached to other types of sex-based discrimination. And so this round of regulations really puts its arms around discrimination on the basis of sex in a way that is a bit of a course correction from the current regulations, so that it acknowledges that the approach to handling and potentially resolving allegations of sex based discrimination becomes more uniform than it was or that than it currently is. Under the 2020 Title IX regulations. The regulations speak to several characteristics of sex-based discrimination that are necessarily included in a policies prohibition of sex-based discrimination, including things like stereotypes or sex-based characteristics. Certainly, pregnancy gets more robust treatment in the regulations than it has historically. Also, for those of us that have tracked since Bostock and the very interesting journey that sex based characteristics like orientation, identity, transitioning and transgender status, those now fall under the umbrella of the regulations in a way that they really didn't. Under these proposed regulations in the way that they really don't under the current regulatory scheme. So this is a little bit of an enshrining of the Cardona decision and of the executive order that followed and the letter from the Department of Education indicating that orientation and gender identity are now within the scheme. Beyond that, we have we see the department coining a new new term for what the current regulations call sexual harassment. Instead, that term is formalized in such a way that it recognizes that sexual doesn't have to be sexual, but that sex-based harassment is prohibited. But this is basically the big four or the Big Five or the Big Six, depending on how you think of it, how you count the prohibitions. But those ideas of sexual assault and domestic violence and dating violence and stalking. Sex-based harassment still encompasses very similar prohibitions in that regard. And then we got a final note, and this probably isn't surprising, but it's probably equally frustrating to many recipients that the notions of gender identity and athletics participation are sort of set to the side for this round of regulatory action and will be addressed separately in. Distinct rule making. And so they are addressed.They are specifically excluded from this round of rule making. So those are the rules, right. So the proposed regulations say here are the things we're going to prohibit. This sort of conduct is prohibited. Moving to the next slide, then we talk about applicability. Right. And this is another jurisdictional consideration that you're not unfamiliar with. But it gets some alterations inthe contours to the way the department envisions the scope of prohibited conduct applying to both programs and activities. Right. So that idea of programmatic jurisdiction as well as geography as it relates to geographic, geographic jurisdiction. And so we've commonly been in the roles of talking about on campus or off campus or in program or out of program. And the proposed regulations make a couple of interesting assertions as it relates to particularly off campus and or out of program misconduct. First of all, it indicates to us that if the conduct is subject to the recipient's disciplinary authority, then it's considered to fall within the jurisdictional bounds of a program or activity. There are some interesting notions in the regs about if you have other policies that address out-of-program or off-campus conduct, then you can't disavow jurisdiction over sex-based conduct that occurs in those same locations or outside of the program in the same way. You know, what that means is likely institutions will be evaluating their other conduct policies to determine what scope is implied or articulated in those policies, because asimilar jurisdictional scope will apply to prohibitions under these proposed regulations. Certainly there's an additional idea that the downstream effects of sex-based misconduct under the sort of hostile environment scheme that the current regulations sort of speak to, even though they don't use that term, that idea, that conduct that takes place out of program or off-campus can still implicate institutional jurisdiction whenever it manifests in program in the in a hostile environment. Right. And so the regulations do some interesting tap dancing as it relates to downstream effects that necessitate a sort of remedial jurisdiction that may be supportive measures only versus a disciplinary jurisdiction that requires the initiation and the conduct of the grievance process as a result of a hostile environment that manifests as a result of conduct that began or that occurred out of program or off-campus. This is arguably a much broader view of institutional control over conduct that takes place out of program, particularly when that conduct manifests a hostile environment or the effects of that conduct. You know. Create a hostile environment inside the educational context. And then there in that in the first sub-bullet, you also see an acknowledgment that is not new from the current regs and derives from that very interesting case. Farmer v. Kansas State I believe that speaks to this idea that if there are buildings that are owned and controlled by a student organization that's recognized by the institution, then conduct disciplinary authority for conduct extends to those geographic locations as well. And then obviously the last bullet there, speaks to prohibiting policies or practices that prevent participation on the basis of gender identity whenever it subjects that person to more than minims of harm on the basis of sex. By the way, one of the things I wanted to point out and put very helpful little page notes there, and you'll note you're likely many of you were very thankful that we're not dealing with the 2000 plus pages that we had in the last go round, but it's still a healthy and healthily sized document and not an easy read. And so we've tried to give you spots to look to where we're deriving this guidance within the overall NPRM document. Moving on to the next slide, there are a few other definitions that we just want to point out, particularly how they are distinct from the current round of regulatory action. Preston If you want to move us to the next slide there. Sex discrimination is obviously broader than just sexual harassment, although we don't get a definition per se as it relates to what constitutes sex discrimination. We can reason out from the original statute and some of the seminal decisions that relate to discriminatory action, what discrimination constitutes. But it's helpful, finally, to get an acknowledgment in the regulations that discriminatory conduct can occur outside of the very narrow scheme of sexual harassment. In addition, the regulations speak to pregnancy and related conditions, a definition for what constitutes a program or activity. The notion of relevant evidence. We'll get to that more when we speak to investigations. Also, what constitutes supportive measures? And then, as has been consistent across the sort of the scope of regulatory action, we don't have a required consent definition, although we have many conduct prohibitions that contemplate consent. The onus is still on the institution to articulate a definition of consent that works within the policy prohibition scheme. Finally, if you want some more references, the notice speaks on the next slide, the notion of sex-based harassment. And you'll likely see when you review that how it's very similar to the current regulatory scheme for sexual harassment, these ideas of quid pro quo and hostile environment they are ideas that carry over from the existing regulations. Although you'll note under the hostile environment definition, we're done with SPOO and if you have been hanging around ATIXA for any length of time in the last two years, you heard someone use that acronym and you likely cringed it, right? It falls within the small number of words that you just don't like to say. If you can all at all avoid its pew, it's gross. What it stood for was severe and pervasive and objectively offensive, right. That standard that derives from the Davis decision and was adopted under the 2020 regulations. Instead, what we have under the 2022proposed regulations is just the idea that a hostile environment is constituted by conduct that is severe or pervasive. And then there's a very interesting little back end encapsulation of objective and subjective perspectives for evaluating whether or not it's severe or pervasive, not the cleanest formulation we've ever seen. It appears to be one that was newly invented because it doesn't appear to derive from any other case law or statutory authority. But really what it's attempting to do is move us back to the standard that those of us working in H.R. or EEO or in Title VII, more generally, we're accustomed to the idea that a hostile environment is constituted by severe or pervasive conduct, which is arguably a much broader standard for evaluating conduct under the Hostile Environment Scheme. Sexual assault, assault, dating, violence, and domestic violence and stalking remain largely unchanged. You will note, thankfully, because between Alisha and Mikiba, we've spent two years explaining, yes, sodomy overlaps dramatically asa penetration offense. Yes, sexual assault with an object is almost exactly the same as the other penetration offenses. That unfortunate evolution of of laws that with nefarious original purposes we thankfully shed those and were we're using now a definition of a penetration offense that is broadly applicable and will encapsulate and prohibit all of the scenarios that you'll likely address without having to parse out, you know, which one it most accurately defines, the conduct that that's alleged to have occurred, probably the most important one to draw your attention to there is the retooling of hostile environment, sexual harassment. And as we move forward, that will likely be a lightning rod for comments and other feedback, because that will mark a pretty dramatic. Shift on the part of the department in moving from that SPOO standard to the severe or pervasive standard. Now let's move on to reporting and response requirements. And I believe, Alicia, you'll pick it up from here.
Speaker 2 [00:20:27] Thanks,Joe. So this is really a great slide. So kudos to our colleagues at TNG that created this slide for us. That really gives us a graphical representation of something the Department of Education has decided to make. Pretty complicated for us. So just note, if you are currently utilizing a mandatory reporter framework at your institution, it's going to be our recommendation that you keep it that way because that's a workable program that will satisfy the proposed rule. But as they are proposed now, who you are within your institution really defines your obligations to report or not report information to the Title IX coordinator, but it also matters who you are receiving information about. And so what this chart tries to do is illuminate that set of distinctions. So you'll see at the top there are confidential employees and we can classify people this way, or they can be this way because of a privileged role they have, such as being a mental health professional. Whether the disclosure is made from a student or employee to the confidential employee?There's no obligation to notify the Title IX coordinator, as long as the employee is working within the scope of their licensure or confidentiality.They do have to provide that individual with information on the Title IX program and how to contact the Title IX coordinator. But they don't need to make that report directly to the Title IX coordinator. Then you see, we have here employees with authority to institute corrective measures. And so that's what we currently refer to as OWA or 'officials with authority'. The OWA construct does not appear in the proposed rule as they simply describe employees with the authority to institute corrective measures on behalf of the recipient. When these employees receive disclosures from students or employees.There is an obligation to one, notify the Title IX coordinator and two provide that individual with information about contacting the coordinator and the TitleIX process. So this category of employees is really the broadest requirement that we have. And then we have this other category of employees who have this responsibility because they have an administrator, administrative leadership role, a teaching role or an advising role. And in the proposed regs, advising is defined not just as academic advising, but also advising for student organizations. And so it's a broad definition where if disclosures are made from students or about students, there is this obligation to notify the coordinator and to provide information about the Title IX process. So the obligations are proportionate to those of what we currently refer to as OWA a with regard to student. When it's an employee, these individuals get to choose one or the other OK? So they can either notify the employee of their rights under the Title IX process at the institution and how to contact the coordinator.Or they can notify the coordinator directly. You see the same choice for all other employees who are not confidential employees. So when they receive information about a student or employee, they can choose one or the other notification requirements. And so reminder, this is specifically applicable to our higher education colleagues. This is not the K through 12 construct that we're going to chat about in a little bit. But here the choice is up to the person who's reported to in terms of whether they notify the coordinator directly or just inform the individual about how they notify the coordinator.If the person who's reporting the conduct is reporting on behalf of somebody else if their third party. It is sufficient for that employee to notify the third party of the rights of the person impacted, to notify the Title IX coordinator and to know what the Title IX process is. Next slide, please. So this slide isj ust a little bit more on reporting requirements and response disclosures.There is the explicit description that if an employee is self-reporting is not required. So there has been this long standing rule within all discrimination case law, and it's good to see that it's extended here in this proposed rule as well. So if you are an employee and you have experienced sexual harassment or sex-based harassment yourself, you're not obligated to report. The obligation to report does not extend to your own experience. Only for those of third parties who have reported to you. You can see a little bit more information about confidential employees here on this slide. These individuals should be listed somewhere. Of course, we put them in our policies. But the confidential employees have to know. We have to notify the community about who our confidential employees are and how they are designated in that manner. And then the confidential employee does need to also incorporate that information to the information that they provide to somebody who's talking to them about a TitleIX issue. So they need to say, hey, I'm a confidential employee, here's the specific set of information that I'm required to provide to you because you've disclosed this information to me. You'll see on here there's also an explicit carve-out for public awareness events that occur in the post-secondary environment. And so the institution is not obligated to respond formally to notice of sex discrimination or sex-based harassment provided at public events like 'Take Back the Night' or online activities that are designed for awareness, raising, prevention, and the like. There is an institutional obligation, or there will be an institutional obligation if the rule goes, as is, to address whatever is learned by employees in terms of remedies, in terms of greater safety to the campus community. But there's really no obligation to respond formally to the information that is conveyed at these events. There are also revised training requirements, which we will learn more about eventually.These training requirements are broad, probably a little bit more broad in someways than existing training requirements, that are in the current training regulations because of the need to train all members of the community on their reporting requirements. And then there are some slightly expanded administrative requirements that are part of this reporting process that we, of course, will drill down on in future conversations that we have TNG and ATIXA.So I really think that that's really the core of some of the key issues of reporting requirements. And so I'm going to turn at this point to my colleagueMikiba, who's going to chat with us about intake and initial assessment.
Speaker 3 [00:26:45] Thanks,Alisha. So on the next slide, we're moving us forward into kind of the lifecycle of a complaint and the steps that you'll take in your process. So as we move into the initial intake process, so the steps that a Title IX coordinator must take upon receiving a notice of a Title IX related report, the proposed regs bring back this idea of the coordinator being able to perform an inquiry, a more robust intake process. And for those of you who have been with us at ATIXA for quite a while, it's bringing back the concept of the little eye inquiry where we see the coordinator being able to dig into the allegations a bit more to figure out both what type of sex-based discrimination they're dealing with and really to start to determine the best process to resolve that specific issue or complaint. So as we look at what's required of the coordinator under the proposed rule, we see that this is very similar to what's currently required from the 2020 regulations and what we've become accustomed to at this point, when it comes to the requirement to treat parties equitably, to make sure that we're giving notice to that complainant of the procedures and the options that they have to resolve that complaint. And if we're moving forward into our formal grievance processes, that we're doing that same explanation to the respondent as well, certainly that we're continuing to offer supportive measures, describe what those are, and modify those measures as we move through our grievance process. Certainly, if the grievance procedures are initiated or informal resolution is requested, we're walking through what those steps and timeframes are so that both our complainants and respondents have clarity and a bit of anxiety reduction when it comes to knowing what to expect from us and our processes. The concept of notice and complaints stay mainly intact as what we've become again accustomed to under the 2020 regulations. Butt he biggest change that we're seeing here is now those complaints or that notice can be either verbal or written. So we're moving forward from the prescriptive formality of a complaint as that to triggering our institutional requirements of notice and only being in that written documentation under the2020 regs to a place where we have more flexibility and more ability to accept reported information from a verbal standpoint. Additionally, the Title IX coordinator still has the obligation to initiate grievance procedures when the circumstances call for it. So this is still an ability for coordinators to use their discretion and to consider factors like pattern predation, violence, threats, weapons, and certainly when minors are involved, to be able to initiate that formal complaint and our grievance processes when we may not otherwise have a complainant. As always, the Title IX coordinator needs to take prompt and effective steps to stop, prevent and remedy known instances of sex-based discrimination. But we see in these proposed regs complainants maintaining a fair amount of control over the process and their ability to choose in the process. The last piece on this slide is again affirming thatTitle IX coordinators may delegate some of these responsibilities to deputies, and we see these proposed rules really give some shine and highlight to deputies and our ability to use them in our processes to either take over responsibility of some of these important steps in the process, and also, again, encouraging coordinators to use their delegated authority to help share some of the burden. On the next slide, you'll see more conversation about supportive measures and what's required. So OCR has affirmed again that supportive measures are intended to restore and really promote access to the education environment and that we need to be even-handed when we are considering and implementing those supportive measures in how we treat our complainants and how we treat respondents in the process. So again, reaffirming that idea of equity in how we treat the parties within our process. However, there is a bit of a shift in the proposed rules in terms of allowing some degree of burden being placed on to respondents in certain circumstances. So previously the burden was really held by the institution and both complainants and respondents were kind of lifted of that burden. Here we see that we are able to apply some of that burden onto respondents if the end result is to again. Restore, promote or preserve access to the educational environment of the complainant. And we're not doing. We're not implementing that burden in a punitive or a disciplinary reason. So again, the focus must be maintained on restoring and preserving that access. And it's really for a limited time frame. So during the active parts of those grievance procedures, since the proposed move rules move us into a place again where we have more flexibility in terms of how we supply, apply supportive measures. We see coordinators are going to need to really use discretion and really be judicious in how they apply supportive measures. So we are encouraging institutions to think about allowing respondents the ability to challenge implemented supportive measures. If that respondent feels that they are overly burdensome. And this would be very similar to a respondent's ability to challenge emergency removal determinations or the ability to challenge policy determinations via the appeal process that's already a part of our grievance procedures. On the next slide, we're starting to round out some of these other preliminary inquiry elements when we're looking at the concepts of emergency removal and administrative relief. And remember, emergency removal is really considered for students, and that administrative leave is for employees.And largely these things have made intact, as they are currently in the 2020 regs, as they are under the proposed rule. You'll continue to use your individual risk assessments to determine when emergency removal is appropriate.So there's not really a change there. However, when it comes to dismissal, OCR has heard us and has really lifted again some of that burden in removing the concept of dismissal from these categories of mandatory and permissive to entirely permissive. This means that Title IX coordinators will now have more flexibility to dismiss reports based on these specific factors that we're unable to identify respondents that respondent is no longer a part of our community members, either no longer participating in our education programs or activities, are no longer employed that that complainant has voluntarily withdrawn their specific complaint and allegations that if proven, the conduct that's alleged does not constitute the new definition of sex discrimination under the proposed rules. But certainly, we still need to go through our process of notification that a complaint has been dismissed, much like, again, we've grown accustomed to. However, depending on the setting, whether or not this conduct is occurring within a K through 12 environments or a higher education environment will dictate the type of notice that's required under those permit dismissal provisions. Lastly, in this section is a bit of a conversation about informal resolution. Informal resolution remains as a tool that we can use within our grievance procedures, and we don't see much of a change here in terms of the responsibilities of the Title IX coordinator. So Preston, if you can go to the next slide, you'll see that under the proposed rules, we would still be allowed to explore informal resolution with the involved parties. But now we can do that exploration without having that a formal complaint. So again, a shift from the requirement of a formal complaint before we could trigger informal resolution to now once now that we have more flexibility in our notice requirements, we can encourage folks to resolve informally earlier in our process, and it's encouraged that we do so from the earliest point possible. The process is still voluntary. It must be agreed upon by both parties, as well as the Title IX coordinator. And parties still need to be provided clear information about their rights in informal resolution, the procedures, their opportunity at any point to step out. And additionally, we see OCR maintaining that the informal resolution facilitator needs to be a separate person on our Title IX team, so not the individual who is involved in the investigation and not an individual who may be a decision-maker. And another point of our grievance process. So a separate informal resolution facilitator or facilitators in that kind of independent part of our Title IX team. And as we transition to which grievance process to use, I think I'm handing this over to Joe.
Speaker 1 [00:36:46] Well, I'll take it. Yeah. So under the regs, we have a new form of bifurcated grievance resolution, and we've got a little bit of a section coming up that will address this in more detail. But if you want a cheat sheet here, it is one of the the current 106.45 of the regulations speaks to the grievance process. Right. And what the proposed regulations do is split those grievance procedures into two sections,106.45, and a new section106.46 that describe essentially the resolution process that's required for all complaints in K-12 and all complaints of sex-based discrimination in higher-ed, as well as complaints of sex-based harassment in higher-ed involving employee on employee issues. Now, any time a student is a feature of a sex-based harassment complaint, either as a complainant or a respondent, and certainly when they're both, then 106.46 describes. And really the way it's written is it says all of 106.45 plus some additional features, essentially enacting the live hearing components of grievance resolution under the existing regulations. And so what it does is create some options for us, which will we'll get into likely some options you're very excited about as it relates to not necessarily having to have a live hearing with advisor-led cross-examination. As a matter of fact, the number of instances where that process will be necessitated by the facts or the evidence or that your geographic location are much smaller than they used to be. So that it even depends on which circuit you live in, right? If you're under the 6th Circuit, you're going to be holding a hearing consistent with the decision inbound, regardless of what the regulations say. But there is there are some choices. There's a menu of resolution options based on the characteristics of the complaint, which create a lot more flexibility for institutions to resolve in a manner that's consistent with their campus culture, that sort of maximizes efficiency and staff time and resources. And we'll get into that here just after we talk briefly about investigations. And it is brief because on the next slide, what you'll see is a bunch of stuff that looks very familiar because none of it has really changed the mandates for investigations regarding the promptness and the obligation to protect privacy right within the confidentiality bubble of the process itself, a presumption of not responsibility, preventing bias and conflicts of interest, and in a way that provides adequate information to the parties. All of those features remain in this round of proposed rule making. On the next slide, again, you'll see more familiar concepts related to an adequate, reliable and impartial investigation with the burden of proof on the recipient, not the parties, to collect sufficient relevant evidence to support a determination. But leaving the carve out that allows the parties to collect their own evidence and to have that be considered if and when it's relevant. The idea under this round of rule making focuses heavily on relevant evidence. The notions of directly related evidence are kind of dismissed under this formulation so that what these regulations envision is there is relevant evidence that speaks to the issue at hand, and then there is impermissible evidence, without speaking to that middle category of evidence that may be related to the allegation, but not necessarily relevant. Actually, for those of us that work in the investigations portion of the process, it's a welcome change to have fewer frameworks for evaluating, okay, what piece of evidence is this and where do I put it? And so the burden on investigators is to collect and present all relevant evidence. And there's some interesting treatment to the way that evidence is intended to be presented to the parties for review. The ten-day time periods for review and response are gone. Even in some environments, the idea that a written report is required is no longer there. And so once again, what we see is the regulations are erring on the side of flexibility and workability. I know we have very few K-12colleagues here in the room today, but for K-12 this will likely move. Our resolution processes back to that one-week time frame. Rather than it being a one-month time frame because of the way that evidence is envisioned to be collected and presented by the parties and dealt with by the decision-maker. In the next slide, you'll see that under 106.46. This is where we remember we have a student as a party featured in a complaint of sex-based harassment where106.46 invasions that all of the 106.45 obligations still apply plus more robust assurances that there is sufficient time to prepare before interviews.That the presumption attaches that the opportunity to present evidence before an impartial decision-maker, accompanied by an advisor of their choice with an entitlement to receive all of the relevant evidence or see that or, very interesting feature of this round, either receive all the relevant evidence or the investigation report. And I think and it takes that we're going to continue to advise a well-crafted investigation report that presents all of the relevant evidence should be a feature of your process, although the regulations envision more flexibility there, and I think institutions will really appreciate that as well as a conduct prohibition against giving false statements. In the next slide again, just continuing quickly through investigations, there's these notions again under 106.46 that will give sufficient notice before we have a meeting oran interview that expert witnesses are still explicitly included whenever they can provide relevant evidence. That's not a feature of 106.45 it was an interesting omission from 106.45 process, with reasonable extensions to the prompt process with written notice of those extensions and equitable access to the evidence in order to review and respond. Now, as you may be thinking, there are a number of manifestations now under this proposed process for reviewing and responding. That response can be before the hearing to the decision-maker.That response can be verbally at the hearing. And so all of the rigid features of that ten-day review and response period are now sort of re-envisioned as ado what works best under the circumstances to just to ensure that these due process steps are observed in the grievance process. Now, the real fun stuff then is in decision-making, and I don't get to do that section, but I can cue it up for you and say that some of the ramifications of this re-envisioning of investigations combined with some newly envisioned decision-making processes to make it a really flexible process, possibilities for the institution. And I think I'm handing this section over as we talk about decision-making.
Speaker 2 [00:45:02] Yeah, thanks, Joe. And so I realize that we have about 12 minutes left, but I do want to spend a little bit of time talking about this because I think this is one of the most profound or renowned features of this new proposed rule. So in terms of decision making, this is where really where we see that bifurcation, right?The split between 106.45, which right now is all of the procedures for decision making and investigation, and 106.46, which is where we have the enhanced due process requirement when something meets the definition of sex-based harassment and involves the student as a party to the complaint. What the proposed regs do is say that we are going to make 106.45 the section involving K-through-12. So elementary and secondary schools, employee on employee misconduct and certain types of sex discrimination in higher-ed. The key thing is that in any kind of case, you have to have a decision-maker who can assess credibility. And thisOCR offers us a couple of options on how to do this in 106.45. They actually say that you can do this in a way that is more consistent with the single investigator model, which they actually fight to in the preamble and say it is now permissible under point four or five. And they say that this is enough to test credibility of the parties as long as you allow for some questioning by the parties through the decision-maker. So the best way to handle that is to sort of shuttle back and forth a little bit between the parties. And if you've done any sort of investigating, I hope that you have been doing this as a practice as a best practice as well. So from an evidentiary standard perspective, the proposed rates have shifted from the term evidentiary standard to standard of evidence, or standard of evidence to standard of proof. And so what we see here on the second bullet, it says that you can use the preponderance of the evidence unless you use clear and convincing for all comparable proceedings. And the mind blowing thing about this, which is very different from what our current regs require. You can find this information on pages 355 to 357 of the preamble, comparable for this OCR in these proposed regs means between the same type of respondents as well. So if you were using preponderance of the evidence for all your discrimination cases with student respondents, you can use it for Title IX cases. If you were using clear and convincing for all discrimination cases involving employee respondents, you can use clear and convincing. More specifically, you could have a preponderance for all cases where the student is the respondent and a clear and convincing for all cases where an employee is the respondent or vice versa. So while this is proposed, it may not be the case in the final rule. This is something that we will want to watch and take note of as practitioners. There is an indication in point 45 that we notify the parties of the outcome to the complaint. HopefullyOCR will give us a better definition of what outcome is, and the final rule at its exact outcome is finding rationale and sanction. But it's not clear what outcome is in the proposed regs. The other thing is, if you're under 106.45, the outcome does not need to be in writing. It can be verbally articulated to the parties, but best practice will be to put it in writing. They also say that an appeal under 106.45 is not required. But if you do offer an appeal, it needs to be offered to both parties using the grounds that are specified in the regulations. They then reiterate that the Title IX coordinator is the one who works to provide remedies, and they talk a bit about doing spot checks to make sure remedies are still necessary as time goes forward. If you're wondering if that's it for 106.45, it really kind of is right. And so the things that you need to do under 106.45 provide the parties with notice an opportunity to be heard, which can be their statements, and then you provide them notice of the outcome. And that's really about it. The preamble does go into a bit more detail about it, and so we are going to provide additional information about this process as we digest them over time. If you could go to the next slide. So106.46, really what follows under is quid pro quo, hostile environment or stop, as Joe talked to us about earlier, domestic violence, dating, violence and stalking. And so in 106.46, you don't have to have a live hearing, as Joe mentioned, but you do have to have at least the opportunity to have the decision maker meet one-on-one with the parties and their advisors. You don't have to meet with them together. But again, the idea is to ask parties questions and questions posed by the other party. And it's really sort of this idea of shuttling back and forth and taking questions back and forth between the parties. And so there are additional guidelines related to relevance that we're going to chat about at ATIXA in future sessions. So while you are not required to have a live hearing, you are permitted to have a live hearing. And that live hearing really looks a lot like what we're accustomed to under the current regs. The bottom part of the slide is critical because it says we have this bizarre evidentiary exclusion rule. And so we thought that we were done with this with the Cardona ruling back in 2021. But what this OCR says is if a party does not answer questions related to their credibility, then a decision-maker could not consider any statement that they have provided in either the live hearing or meeting with the decision-maker. And so the issue is there are not many questions that don't speak to credibility. And so we, of course, will be providing commentary about that as well as we go through that notice and comment period. Next slide, please. If you do have a live hearing. The proposed rule says the questioning still needs to be conducted by an advisor.You still have to offer an advisor to a party if they show up without one. The proposed rule also maintains the standard that institutions have to provide one free of charge. That doesn't have to be an attorney. And the advisor asked questions of the other party and witnesses, and the decision-maker can ask questions of parties and witnesses as well. Currently, in our practice, we see that some schools do not permit advisors to ask their party questions. But the proposed rule is that advisors should be able to ask questions of their own party as well as the other party. In the current rule that the live hearing can be conducted in one space or via technology remains as long as the hearing is in real-time. Next slide, please. So we do understand that this is going to create a lot of questions for you all as practitioners. So please keep in mind that this is a high-level overview and a lot of this may change when the final rule does come out. But under 106.46, a written determination is required. And so when you have sex-based harassment, when a student is involved in the behavior, either as a complainant or respondent, you have to use 106.46. You can see the information that is required to be in the written determination on the slide, which is less than what is currently required. It talks about decision-makers evaluation as opposed to the detailed rationale that we are currently doing. What they are trying to do is simplify what we have been doing to shrink the length of time it takes to complete the grievance process. And which brings us to the greatest feature, I think, of the proposed rule that ten-day plus ten-day waiting period is dead. So please remember that the proposed rule is not in effect right now. So be sure to continue utilizing the current regs. But under the proposed regs, the ten-day plus ten-day requirement doesn't exist under 106.45 or 106.46. But it does say that you have to give the parties the opportunity to review the relevant information or a summary there of prior to any decision being made. You can then determine sanctions and remedies and appeal procedures are required under 106.46 with the same three grounds that we're currently using. And then it says that the process is final when the timeliness of the appeal lapses. So if you give the parties seven days to appeal on the eighth day, the decision is final. If no one appeals or at the conclusion when the appeal process is completed again, all of this is proposed.It's a lot to absorb. So please check our website for future events. And with that I'm going to turn it back over to Mikiba to talk to us about additional considerations.
Speaker 3 [00:53:04] So for the folks who are with us who are in the K through 12 environment, I hope you all are dancing in the streets wherever you are, because these proposed rules really give a lot of relief and acknowledgment to the difference. The difference of environment of our K through 12 administrators work in than our higher-ed administrators and how there needs to be some differentiation when it comes to addressing those elementary and secondary education issues with students and employees than what we see within the higher education environment. So the best news of the day is that these proposed regulations offer a lot of relief to K through 12 Title IX administrators and lift a lot of that administrative burden that you all have had to figure out over the last couple of years. You can now have confidential employees. This is a huge change from the 2020 regulations that designated all employees as mandatory reporters.Now, under these proposed changes, it will allow K through 12 schools and districts to identify confidential employees, likely individuals that either have privilege attached as a part of their profession, or someone that the school designates as confidential, like a licensed school counselor. As individuals who do not have to report to the Title IX coordinator. But much like we saw earlier on Slide 12, this will likely still require that those confidential individuals to provide de-identified information to the Title IX coordinator for both tracking and trend-based data purposes. You'll see a reduction of burden in the requirements when it comes to notification and parts of the grievance procedures, and specifically that it recognizes the differences in implementing the 2020 Title IX grievance processes when it comes to students who have IEPs or 504 issues. And we really hope that the final rule provides additional clarity in relation to manifestation, determination, reviews, and how those impact the timing of our Title IX grievance procedures and the requirement to maintain safety and security at schools. When we need to make these determinations where we see an overlap in our Title IX requirements and our 504/IEP requirements. So there is a lot more to come when we look at the clarity and the needs in our K-through-12 environment. And ATIXA will likely have additional webinars and workshops that go deeper into the specific changes required for our K through 12 comrades. Next slide.
Speaker 1 [00:55:48] Thanks, Mikiba. Just wrapping up just as a brief note, most of what you recognize in terms of pregnancy protections related to Title IX are now enshrined in this round of proposed regulations. That's your 15 2nd encapsulation of what these next two slides say. The other interesting feature, however, is that the regulations envision a proactive duty for the institution to inform a student when they become aware. And actually, it says acquires knowledge, which I think is a very legalistic way of saying, still don't ask people if they're pregnant. That's still a terrible question to ask. Don't do it. But when you acquire knowledge, then the employee has sort of a proactive duty to let the Title IX coordinator know. And then the Title IX coordinator has an obligation to provide what you see there in the second sub bullet on this slide, information to that individual that provides them with knowledge of that prohibition of sex discrimination, modifications available to them, opportunities for separate and comparable programs. What it would look like to take a voluntary leave and be restored after that leave is over.Lactation spaces, which may sound familiar. Again, for those of you over on the employment side of the house, we now have a similar mandate for students and in education spaces. And finally on the next slide, it speaks to treating pregnancy as comparable to a temporary disability, which is not inconsistent with the guidance that we've already received. And bear in mind that these obligations under Title IX, like all other obligations under Title IX, apply to students and employees. So you're likely you're likely complying with all of these requirements. Probably not, the sort of proactive duty to inform that will be a new feature for the coordinator upon the acquisition of knowledge, which again, don't go around asking people if they're pregnant. But you get the idea. Right. But it does create that sort of proactive duty. Thanks to all of you, to Preston, to Sandra, to all of the folks that Get Inclusive for creating a space where we can can, you know, exploit our partnership with you in service to the field and figuring out what these proposed regulations suggest and how that would look in the implementation. And the final thing, for those of you logging off right now, you might miss this and I hope you don't, but I understand if you do, because we're 2 minutes over time. Remember, these are proposed regulations. That means the current regulations are still in force and likely will be for the next year. If you remember, if you are around the last time a proposal gets published in the Federal Register, there is a comment period. I think it's typically 60 days. There's an obligation for the department to intake, evaluate and respond substantively to all of those comments and then publish a final rule. And then there's an implementation date after the final rule is published. So we're likely still several months away from seeing a final rule published. Remember the last time around there were significant changes between the proposed rule and the final rule. And I would not be surprised that some of these features that you all have so intelligently pointed out are confusing or not well articulated or seem to conflict with other. I expect that the Department will make good use of the comment period to have the experts in the field highlight those areas and ask for more clarity and then clarify whenever we see the final proposed rule. So keep doing what you're doing. Don't change any of that now, don't fire up the policy revision committee just yet. But I think that I speak for all of us at ATIXA that we welcome these modifications. We think that they strike a really great balance between the respondent protective features of the 2020 regs and process alterations and honestly, a lot of flexibility and discretion that will benefit institutions moving forward ATIXA as always will continue, if we're nothing else, we're nerds and we sit around in rooms and we kick these things around and we try to figure out what it looks like and how it works best. And we're going to continue to do so if you watch atixa.org/regs That's our dedicated site for all of the information in terms of webinars that are coming up, Q&A sessions that we're going to host, documents that we'll publish that will continue to unpack what the proposed regs look like, as well as what this rule making process looks like and how you can engage with it. We'll do our best to keep you as informed as we can. We're very appreciative of the opportunityGet Inclusive provided for us to be able to speak with you today. So thanks to all of you. I know it was quick. I know we didn't get all the questions answered, but we appreciate your patience and forbearance. And thank you so much, Preston, for giving us the opportunity to be here with you. We appreciate it.