Filed Under: Coordinator Role
ATIXA has a number of members who wish to outsource their Title IX compliance programs, for a number of reasons. They want to know whether there anything in the regulations that would prohibit this practice.
Specifically, they note that the regulations require the Title IX Coordinator to be an “employee” and that an outsourced coordinator would not technically be employed, but would perform the same functions as an employee would. Would this be permissible? If so, is the selection of an external coordinator limited only to interim arrangements, or could a long-term outsource be possible?
If the answer is that the Coordinator must be an actual employee, would it work to give the coordinator title to an employee, but to delegate or create co-coordinator roles that are satisfied by the external consultant?
Thank you for your February 8, 2022, email to the Office for Civil Rights (OCR) of the U.S. Department of Education asking about the Department’s regulations implementing Title IX of the Education Amendments of 1972, specifically whether a school may designate a non-employee as a Title IX Coordinator and if so, whether the selection of an external coordinator can be limited only to interim arrangements or whether a long-term arrangement would be possible. In addition, you asked whether, if the Title IX Coordinator must be an employee, a school could designate an employee as the Title IX Coordinator, but delegate or create co-coordinator roles that are filled by an external consultant. Your email was referred to OCR’s Program Legal Group, and we are pleased to respond. Please note that in all cases, OCR refrains from offering opinions about specific facts without first conducting an investigation.
OCR enforces Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681-1688, and its implementing regulations at 34 C.F.R. Part 106, which prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance. The Department’s Title IX regulations were amended in 2020 (2020 Title IX regulations).
The 2020 Title IX regulations require each recipient to, “designate and authorize at least one employee to coordinate its efforts to comply with its responsibilities under [Title IX], which employee must be referred to as the Title IX Coordinator.” 34 C.F.R § 106.8(a). In the preamble to the 2020 Title IX regulations, the Department explained that “[n]othing in these final regulations restricts the tasks that a Title IX Coordinator may delegate to other personnel, but the recipient itself is responsible for ensuring that the recipient’s obligations are met, including the responsibilities specifically imposed on the recipient’s Title IX Coordinator under these final regulations, and the Department will hold the recipient responsible for meeting all obligations under these final regulations.” Preamble at 30463. The Department stated in the preamble that “[n]othing in the final regulations precludes a recipient from designating multiple Title IX Coordinators, nor from designating ‘deputy’ or ‘assistant’ coordinators to whom a Title IX Coordinator delegates responsibilities, nor is a Title IX Coordinator prevented from working with other administrative offices and personnel within a recipient institution in order to ‘coordinate’ the recipient’s efforts to comply with Title IX. Ultimately, the recipient itself is responsible for compliance with obligations under Title IX and these final regulations, and § 106.8(a) requires at least one recipient employee to serve as a Title IX Coordinator.” Id. at 30464. “[I]f a recipient designates or authorizes employees to serve as deputy or assistant Title IX Coordinators (perhaps with the goal of having Title IX office personnel located on various satellite campuses, or in individual school buildings, to make Title IX personnel more accessible to students), then such employees are officials with authority to institute corrective measures on behalf of the recipient and notice to such employees conveys actual knowledge to the recipient, requiring the recipient’s prompt response under § 106.44(a).” Id. Please note that the preamble to the 2020 Title IX regulations clarifies OCR’s interpretation of Title IX and its regulations but is not legally binding.
Although the 2020 Title IX regulations require the Title IX Coordinator to be an employee, in the preamble to the 2020 Title IX regulations, the Department addressed other Title IX functions that could be outsourced to external consultants. The Department stated that “recipients and States remain free to consider alternate investigation and adjudication models, including regional centers that outsource the investigation and adjudication responsibilities to highly trained, interdisciplinary experts.” Id. at 30063. The Department further explained it’s belief that “regional center models and similar models involving voluntary, cooperative efforts among recipients to outsource the investigation and adjudication functions . . . represent the potential for innovation with respect to how recipients might best fulfill the obligation to impartially reach accurate factual determinations while treating both parties fairly.” Id. at 30100.
Please note that correspondence issued by OCR in response to an inquiry from the public, including this message, does not constitute a formal statement of OCR policy and should not be construed as creating or articulating new policy. OCR’s formal policy statements are approved by a duly authorized OCR official and made available to the public via OCR’s Policy Guidance Portal.