Title IX Update Notice of Proposed Rulemaking Webinar Q&A

Title IX Update Notice of Proposed Rulemaking Webinar Q&A

During our Title IX update webinar on July 6, 2022 our expert panelists from ATIXA answered live questions via the Zoom Q&A feature. We've compiled these Q&A and provided them below. This is not legal advice.

Q. Should we be changing out policies for this upcoming year based on the NPRM or should we wait?

A. I would recommend waiting as the 2020 Regulations are still in effect.

Q. What about pay equity? Is that covered under proposed regs?

A. While these issues are historically handled under Title VII and the Equal Pay Act, Title IX also covers pay equity issues that are on the basis of sex. That would not change under the proposed regs.

Q. Does an enrolled student automatically qualify them as campus program or activity, even if the conduct happens outside campus not within a class, study group, field  trip, etc? Also, how does social media factor into this to determine a campuses jurisdiction?

A. Social media is handled in the new Q&A just released related to the 2020 regs.  See https://www2.ed.gov/about/offices/list/ocr/docs/202107-qa-titleix.pdf

Q. "conduct subject to recipient's disciplinary authority" - How is "disciplinary authority" defined? For example, does it include authority to discipline pursuit to specific program codes of conduct like team rules, honor society, etc.?

A. That term is not  defined in the regulations. However, based upon my reading of the preamble, OCR is taking a broad interpretation and it would include actions an  institution would take to issue discipline pursuant to the various types of  conduct codes or any other policy under which the institution may discipline  a student for any type of misconduct.

Q. Isn't the subjective-objective test used in Title VII sexual harassment claims? I assumed that the Department was attempting to align Title IX and Title VII in adopting this provision.

A.Correct, the "SORP" definition in the proposed regs would be aligned with the Title VII definition.

Q. SORP is not going away, correct?

A.The proposed regs are moving us from severe and pervasive and objectively offensive (SPOO) under the current regs to severe or pervasive and objectively offensive (SORP).

Q. Regarding Jurisdiction for public higher ed institutions, the preamble punts on First Amendment concerns.  And yet, the regulations expand jurisdiction to respondents under the "disciplinary authority."  How does this expanded applicability impact personal/private, off-campus SOCIAL MEDIA posts by professors or students?

A.You’re right, it raises a problematic issue that the regs do not directly address. We plan to raise this issue in our comment. Also check out OCR's new Q&A related to 2020 and addresses social media notice. https://www2.ed.gov/about/offices/list/ocr/docs/202107-qa-titleix.pdf

Q. What does "responsibility for teaching" mean, this seems to be all faculty, or is it just departmental Chairs/Program Directors?

A. All faculty. Assuming they have teaching responsibility.

Q. Regarding those with responsibility for teaching and advising -does this mean that all faculty effectively become responsible employees?

A. Correct. This closes the mandatory reporting loophole created by the 2020 regulations.

Q. What is the guidance when there is a report of an incident that may qualify as sexual misconduct but the alleged victim or complainant does not want to speak or refuses to participate in an investigation?

A. This will likely be the same evaluation as you currently use, with an obligation to move forward in instances where there are threats to safety or overriding necessity to address.

Q. Is there a complaint dismissal option for conduct which would fail to meet the applicable definition of misconduct? If so, have they expanded or changed the 2020 mandatory/discretionary dismissal provisions?

A. There is. It’s coming up, major change is there are no required dismissals, only discretionary.

Q. Do you see the new burden language as allowing for one way no contact orders?

A. I think one-way NCDs were always acceptable, given the circumstances. And yes, they would be permissible here.

Q. Is there a time period mentioned with respect to when campuses can conduct an emergency removal?

A. There is not one outlined in the proposed regs, however this usually happens during the initial assessment/preliminary inquiry timeframe. There is nothing that prohibits the Title IX Coordinator from initiating an individualized risk assessment at any part of the process, when appropriate.

Q. Are supportive measures only required for sex-based harassment, or for all sex discrimination claims?  For example, if an employee claims that her supervisor discriminates against her in salary, in assignments, in approved leave?  What supportive measures would be required?

A. Section 106.44 of the proposed regs talk about the provision of supportive measures for sex-discrimination, not just for sex-based harassment. There supportive measures provided would be a case-by-case assessment and vary based on the individualized needs of the party.

Q. On what grounds would the institution make a decision if the Respondent challenges emergency removal?

A. Evaluate that it is narrow, minimizes the burden on the Respondent, and addresses the issue giving rise to the necessity.

Q. When do these new  regs be effective (go into effect)?

A. We are in the proposal stage. Likely implementation is Fall 2023, but that’s not yet clear.

Q. Can the facilitator be another deputy?

A. Yes, as long as the deputy is not also the investigator or decision-maker.

Q. This may be overly specific/wrong venue, but if the Dept of Ed regulations conflict with provisions/requirements/regulations adopted by other federal agencies (not Dept of Ed), how do institutions reconcile this? E.g., if a non-Ed federal agency granting funds to an institution prohibits any form of dismissal of complaints, or if non-Ed agency continues to use SPOO instead of SORP.

A. I do not recall seeing anything in the preamble or proposed regs that speak to conflicts with other federal regulations. You would have to comply with both. For the example you provided regarding dismissal, the proposed regs only have permissive dismissal requirements so nothing would require you to dismiss under Title IX. For SPOO vs SORP, you would investigate and "charge" the Respondent with violations under both standards. It may be that there is sufficient evidence to prove a SORP violation but not a SPOO violation.

Q. Do you have recommendations for how to fill all of these roles during an investigation/grievance process at an organization that has a very small (10 or less) faculty members?

A. We will go into this a bit more in a few slides, but the proposed regs allow for us to go back to a single investigator model, which would allow for an investigator or also serve as the decision-maker. And, allows the Coordinator to serve in more roles as well (i.e., investigator and decision-maker in a single investigator model).

Q. For IR, when it says not investigator or decision-maker, does it mean for that case (vs. overall)?

A. I interpret it to  mean not the decision-maker or investigator for that specific case.

Q. Can the Title IX Coordinator facilitate an informal resolution?

A. Potentially, yes.  This would mean that the Coordinator could not then serve as an investigator  or decision-maker for the case.

Q. Any changes to the ability for informal resolution between a student as complainant and staff as respondent?

A. No, the proposed regs would still preclude the use of IR for employee on student conduct.

Q. Do only formal complaints warrant investigations or do we have to investigate all reports made to the TIX office?

A. “Formal complaints” is gone as a term of art. Complaints lead to preliminary inquiry.

Q. Based on the 2 month comment period and then implementation, when do you envision these changes actually being mandated?

A. We anticipate the  final rule being published in Spring 2023 with a Summer/Fall 2023  implementation.

Q. Is it OK to allow the person to initiate contact with the Title IX Coordinator to request an accommodation after the employee has informed the person of the Title IX contact info and their rights after a pregnancy disclosures. This allows the person (student) to drive the process

A. Yes, the preamble to the proposed regs does allow for that. The employee has an obligation to inform the person of the availability of support from the TIXC.

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