An ATIXA Tip of the Week by Brett A. Sokolow, J.D. and Kayleigh Baker, J.D.
As we noted in October, “Over the past few years, there has been a significant amount of noise, confusion, and sense of whiplash in the Title IX world.” With the presidential election behind us and the courts intervening regularly, it’s understandable if your head is still spinning.
Maybe you have already implemented the 2024 Title IX Regulations, or perhaps you’re adhering to the 2020 framework as the result of an injunction. As our team explained in our post-election statement, the federal government will likely move to reverse course in early 2025. The Trump Administration will probably issue a Notice of Proposed Rulemaking (NPRM) for new or revised regulations, rescind the current 2024 Title IX Regulations, or otherwise hasten their demise via court order.
Regardless of what happens, ATIXA is here to help you go above compliance and aim for best practices. If the 2024 Regulations fall by the wayside at some point in 2025, the 2020 Regulations will likely be the default for some time. The 2020 Regulations are a narrower set of rules and actually exclude most sex offenses that impact students, given that those offenses most often occur outside of school settings. In that sense, the 2020 Regulations permit schools flexibility in responding to issues outside their scope. So, as you craft alternative processes for non-Title IX misconduct (what we often refer to as Process B at ATIXA, where Process A is the process prescribed by the 2020 Title IX Regulations), you can do so with an eye toward the ceiling, not the floor. Compliance isn’t likely the guiding precept, and thus, we should ask, what are the best practices that lay the foundation for exemplary programs? What should we be doing ideally to protect the members of our communities from sex discrimination?
Our experts recommend these strategies to maintain excellence through 2025 and beyond in addressing sex- and gender-based discrimination:
Jurisdiction/Obligation to Respond
- Take broad off-campus jurisdiction
- Address all forms of discrimination in similar ways (e.g., race v. sex v. religion)
Audits & Assessments
- Conduct ongoing barrier analysis regarding reporting and develop action plans to mitigate identified barriers
- Conduct regular climate surveys, as appropriate, and develop action plans to address findings
- Collect Title IX process survey data from participants, upon conclusion of the formal and informal resolution processes
- Incorporate Title IX-related questions into exit surveys offered to students transferring out of or leaving the institution
- Publish a Title IX annual report including anonymized aggregate data on reports, complaints, and resolution processes, in addition to information about Title IX training, educational programming, and other prevention efforts
- Track annual caseload statistics by type, location, individual demographics, other trends or patterns, etc.
- Conduct regular audits of single-sex programs
- Conduct regular audits of single-sex scholarships
Pregnancy & Related Conditions
- Provide robust protection for pregnant individuals
- Establish leave of absence policies for pregnancy and related conditions
- Ensure student health insurance, if offered, covers pregnancy and related conditions
- Provide reasonable modifications for pregnancy and related conditions
- Generally, refrain from requiring documentation to prove existence of pregnancy or fitness to participate/return to class
- Provide an appropriate number of private, functional, and clean lactation spaces
- Require employees to share information about Title IX with pregnant students or employees, but do not mandate reporting of pregnancy to the Title IX office (unless a pregnant person specifically so requests)
- Provide support for parenting students when not doing so could be disparate treatment of the non-birthing parent, based on sex. Where a modification is medically or situationally necessary for a birthing parent, consider whether it would be inequitable to deny the same protections to the non-birthing parent
Policy & Procedures
- Define “violence” under domestic violence and dating violence policies
- Define how your institution interprets the phrase “for the purpose of sexual gratification” in the fondling offense definition
- Expand the definition of fondling to include situations where a respondent causes themselves to be touched by the complainant (without the consent of the complainant)
- Implement an appropriate, fair, accessible “Process B” (where permitted)
- Implement a sexual exploitation policy
- Make sure your policy addresses sexual harassment covered by the Fair Housing Act
- Implement a non-Title IX sex-based hostile environment provision in your policy, resolved by “Process B”
- Maintain terminology of “sexual harassment” (not “sex-based harassment”) if and when 2024 regulations are no longer applicable
- Add clarity to policy about the basis for an investigation (incident, pattern, culture/climate)
- Clarify language about a complainant’s ability to rescind a complaint
- Clarify language about whether a witness can withdraw a statement given to investigators
- Use the preponderance of the evidence standard of proof
- Clarify policy on the number of advisors permitted in the resolution process
- Provide appointed advisors for the entirety of Title IX resolution process, not just for the hearing
- Mandate reporting by almost all employees while also designating plentiful confidential resources as appropriate
- Ensure your mandated reporting policy addresses reporting for community events, classroom disclosures, and campus law enforcement
- Implement appropriate name change policies
Training, Education & Resources
- Train your community broadly in all relevant policies and procedures on a recurring basis
- Exceed statutory/regulatory training mandates of federal law, federal regulation, and state law
- Design a Title IX website with clear information, process flowcharts, a downloadable VAWA brochure, and process FAQs
- Publish versions of Title IX policies and procedures translated into all common languages spoken within your campus community
- Train investigators on culture/climate investigations
- Train investigators on disparate treatment investigations
Miscellaneous
- Assess facility access to ensure that spaces are inclusive of all members of the community and provide assessment data and recommendations to departments/personnel responsible for renovations or new construction
- Implement model Title IX syllabus statements
- Implement MOUs as appropriate
Want more best-practice guidance from ATIXA’s leading experts? Become a member today to access our exclusive members-only listserv, where you can ask our consultants for real-time advice and feedback while remaining anonymous (if you prefer). Please review all the consulting services ATIXA and its parent consulting firm TNG provide by clicking this link.