By: Kayleigh Baker, J.D. and Brett A. Sokolow, J.D.
Professionalism, Proficiency, and Confidence
In the Title IX field, federal regulations tend to drive the training discussion. They should not. In conversations on the ATIXA member listserv, we frequently encounter questions like, “How many times a year should we train on this?” or “How many hours of training meet the minimum?” or “Is this mandatory?” Unfortunately, this focus on regulatory compliance limits the ability of our field to fully realize the aspirations of Title IX as a transformative gender-equity statute. It also sorely underestimates how much training is actually needed to operationalize the thousands of pages of complex Title IX Regulations.
Practitioners often fall into the reductionist trap of asking, “What do the regulations require us to do?” rather than, “What do we need to know to ensure we are professional, proficient, and competent?” And, just as importantly, how do we demonstrate our professionalism, proficiency, and competence to those who judge us, including the campus community, parents, the U.S. Department of Education Office for Civil Rights (OCR), the courts, state legislatures, and the media?
The Title IX Regulations Frame the Bare Minimum
Try out these potential closing arguments:
“Dear members of the jury: My client, a billion-dollar organization, did the bare minimum required by law, so please don’t ding them for liability.”
OR
“Dear members of the jury: My client evaluated the minimum training requirements set by law and determined it needed to exceed them in every respect—frequency, duration, breadth of topics—to ensure that every member of our school/college community was accorded their rights. My client delivered on that training ideal to ensure that Title IX’s protections were fully effectuated.”
Which argument would you prefer to be able to make in front of a jury?
When Regulations Set a Floor
The 2024 Title IX Regulations went into effect for many schools on August 1, 2024, and with them came new training requirements. While both the 2020 and the 2024 Title IX Regulations require colleges and schools to train Title IX Team members, the 2024 Regulations have additional requirements. Institutions are now required to train their Title IX team (including Title IX Coordinators, investigators, decision-makers, and informal resolution facilitators) and all employees, and the training must recur at least annually. This is very different than the “box-checking” requirement from 2020, but it’s still relatively minimalistic.
Injunctions against the regulations have left more than half the country in limbo—and thousands of schools, colleges, and universities are stuck with the 2020 Regulations while awaiting court decisions on the 2024 rule. We are fielding questions from Title IX practitioners nationwide about whether training can wait until we have a better understanding of which regulations will ultimately apply.
Below are five reasons why sitting on the fence until you know which way the wind will blow won’t work. No matter the regulatory scheme, training is essential for ensuring the continuity of operations that effectively support your students, employees, staff, and communities.
- Don’t Get Rusty While Waiting for Direction
Allowing your skills to stagnate can lead to mistakes when complaints are made. In settings where caseloads are typically lower, a lighter workload can lead to unfamiliarity with the intricacies of the Title IX process and less experience navigating topics like consent and welcomeness, which are complex, detailed, and highly nuanced. The same can be said for schools with high volumes of complaints, where practitioners may be overwhelmed and, as a result, wind up skipping important process steps. Consider this: would you rather scramble for guidance when challenges arise or have a solid foundation from the outset?
Additionally, the Title IX profession experiences high turnover, with personnel frequently moving into new roles or leaving institutions. This makes training all the more critical, particularly if you’ve recently onboarded a new investigator, appointed a new Title IX Coordinator, or updated your policies. Ensuring that new Title IX team members feel confident and competent from the outset is vital for upholding consistency and fairness throughout the Title IX process.
- Budgets May be Tight, But Fines are More Expensive than Training
Clery fines, OCR resolution agreements, and lawsuits are far more expensive than training. Speaking of costly, can you think of another area of law that has resulted in billion-dollar settlements for colleges? Leaders of universities and school districts must determine how to prioritize the many compliance imperatives that compete for resources. It might be logical for them to focus on areas where the liability for non-compliance is steepest.
- Waiting Around Won’t Shield You from Liability
The current regulatory landscape may be uncertain; however, Title IX is not. Title IX requires you to stop, prevent, and remedy all forms of sex discrimination, and training is crucial to ensuring that you meet this obligation. Even when current regulations do not explicitly cover specific issues, OCR expects schools and institutions to respond to the greater call of Title IX. For instance, long before the 2024 Regulations, OCR has investigated schools and colleges for complaints of pregnancy-related discrimination, even though the 2020 Regulations are silent on forms of sex discrimination other than sexual harassment.
There is also a trap related to repeated regulatory cycles. Whenever new regulations drop, we tend to focus on them and forget all about previous regulations—the “tyranny of the immediate” often results in myopic views of compliance. A commitment to ongoing, regular, broad training can restore the larger focus that is needed.
Juries are smart enough to be dubious of one-and-done training regimens. They instinctively and intuitively grasp that training should be regular, ongoing, accretive, and aligned with critical learning outcomes. Jury members were likely trained in their jobs, and they expect Title IX administrators to be well-trained in theirs.
- Ongoing Litigation Means No Grace Period for Compliance
Once the courts eventually reach decisions regarding the challenges to the 2024 Regulations, your school, district, or higher education institution will suddenly be required to follow them. OCR will not grant you extra time to become compliant. You’ll be required to implement an entirely new regulatory scheme the very next day. Additionally, training is an even more compelling imperative for the many schools that must maintain compliance with the 1975, 2020, and 2024 versions of Title IX Regulations all at once, where each version presents different requirements, procedures, and terminology. Training is essential for schools and colleges to understand how to manage complaints under each framework.
- Title IX Doesn’t Tell the Whole Tale
Given our frequent involvement in federal litigation related to Title IX, we’d be remiss if we did not note the trend related to training that has become more prominent in the last several years. While many in the field look to the Title IX Regulations to understand training needs, the courts will often evaluate training in light of negligence claims or Section 1983[1] actions, not just with respect to Title IX.
Many courts, especially in cases involving K-12 schools and public universities, have expressed the common understanding that schools are required to train employees on major policies. Failure to do so can result in negligence or § 1983 liability, entirely independent of what the Title IX Regulations specify. Those are not “check the box” expectations; they are specific legal standards that demand competence. Thus, we’re not training for the sake of training; we are training to achieve a specific end—the thorough understanding and operationalization of what a school or college is supposed to do to address sex discrimination within its programs and activities.
We Lose Sleep Over This, So You Don’t Have To
Over the past few years, there has been a significant amount of noise, confusion, and sense of whiplash in the Title IX world. Our consultants know that practitioners are exhausted and trying to find steady ground. Want the good news? You are not alone. ATIXA is here to support you. Although we can’t predict which way the wind will blow as lawsuits over the regulations unfold, we can help you rise above the floor of compliance, whatever type of floor that ends up being.
Visit www.atixa.org to learn more about resources, trainings, and consulting services that support your compliance efforts.
[1] Issues related to inadequate training can be central to claims under Section 1983 of the Civil Rights Act of 1871, as codified in 42 U.S.C. § 1983. The Supreme Court has established that local governments can be held liable if the inadequate training of employees or officials demonstrates deliberate indifference to the constitutional rights of individuals, as exemplified in City of Canton, Ohio v. Harris.