The White House Office of Information and Regulatory Affairs (OIRA) completed its review of the 2024 Title IX Final Rule (Rule) last week. OCR quickly finalized it and released it to the public on April 19, 2024, with an August 1 implementation deadline. ATIXA has created a comprehensive regs site here, as a centralized hub for all the regs-related information you will need.
What does it mean to come into compliance?
The Title IX field has seen a regulatory implementation before, in August 2020. But, you’ve never seen one like this. Turnover in the field is extensive, meaning that many of those in Title IX positions now don’t have institutional memory for what the last implementation was like, but regardless of whether this will be your first regs rodeo or your second, there is no precedent for this. In 2020, we were in the midst of a pandemic. Colleges and schools could barely think about Title IX, given that we were busy obtaining and distributing PPE and enforcing quarantines to keep people alive. Title IX was an afterthought. No one was on campuses, stakeholders weren’t consulted, and many schools scrambled to implement the Rule without the expected process of consultation with stakeholders and governance-based approvals. In some ways, this was easier than it would have been in normal circumstances. The prescriptive nature of the 2020 Rule meant that there weren’t that many decision points anyway, and we had to act quickly, so we did.
Why will implementing the 2024 regulations be so different?
On a scale of zero to ten, how much change does the 2024 Rule represent over the 2020 Rule? I’d say that if zero is no change and 10 is change to everything, the 2024 Rule likely falls into the 6-7 range. 60-70% of what we have in place now will need to change in some way to comply with the new Rule. So, the new Rule is not evolutionary, it represents significant change over the current compliance scheme. That was also true in the 2020 transition from the 2011 approach, for sure, but I think some schools don’t see this upcoming process as a heavy lift and see the Rule as derivative of the existing Rule. I don’t think that’s accurate. More is changing than is not.
Good policymaking takes time
This time, you don’t have the pandemic as a reason to short-circuit the implementation process. You’ll need to be consultative, build consensus, seek stakeholder buy-in, and make a lot of decisions on how you will be implementing the 2024 Rule. Why? Because unlike the 2020 Rule, the 2024 Rule is not prescriptive. It sets a baseline, but flexibly leaves a ton of discretion in the hands of schools with respect to how we will comply. Great, we like discretion, but discretion can be the enemy of efficient implementation. By my count, there are several dozen decision points that will need to be considered, which were dictated to us by the 2020 Rule and required no decisions. More decisions = more committees = more debate = longer time to come to consensus. Groups excluded from the 2020 process will be expecting engagement this time. Campus constituents will be concerned about rights being stripped away and will be vocal about it. It looks like the implementation period of 104 days is just about the same as in 2020, when we had 99 days. That implementation period spans July, when many professionals are on vacation or not at their desks because they work on 10-month contracts. If we don’t plan ahead, we’ll be crunched and left without sufficient time to make all the needed changes to policy and procedure and get everyone trained on the new Rule.
Luckily, ATIXA has an in-person Summer Symposium training event in Denver in the first week of June so that you can get quickly up-to-speed and certified on the new Rule, take back to your schools and campuses what you learn, and use it to quickly update your policies and procedures. All Denver regs implementation course registrants will also receive a free copy of ATIXA’s landmark model policy and procedure template, 1P1P (One Policy, One Process), to give you an important shortcut to updating your policies and procedures in alignment with the industry standard models from ATIXA. For those looking for virtual training, we will offer that option in May and July for both higher education and K-12.
Your To-Do List
With a short implementation window, many decisions to be made, and many stakeholders to be consulted, I hope the following to-do list will help you in your implementation process:
- Review the decision points videos here, which are based on the NPRM (not the Final Rule), and describe the kinds of policy and process decisions you will need to make.
- Prepare to expedite policy/procedure revisions at your institution from whatever your standard timeline is. That won’t be quick enough.
- Educate/prepare your community for coming changes.
- The final Rule is perhaps 10% different from the NPRM, and your community will benefit from understanding this, rather than being surprised by changes in August.
- Review current policies, practices, publications, and websites.
- Create a checklist of changes that will need to be made to each.
- Work with your legal counsel to determine how the proposed regulations intersect with other policies and governing laws at both state and federal levels. The Final Rule is not the only source that will drive your decision-making.
- Determine how you will involve stakeholders. Will they have input, be consulted, have a say, or just be informed? In what ways will they be engaged? Will the summer schedule impact access to the people and resources who must sign off? Do you need Board approval, and when is the meeting scheduled at which you will propose changes?
- For each of the decision points noted in the videos, who needs to be consulted? Who decides? How will you address areas where key decision-makers do not have consensus?
- Committee? Task force? Focus groups?
- How will you inform your board/cabinet?
- How will you roll this out to your community?
- Lay out a timeline for changes. What impacts policy? What impacts procedures? Is it the same process to change both?
- How will you roll out re-training and on what schedule?
- Do you need a trusted consultant like ATIXA to help guide your school or campus through this process?
Keep following the 2020 regulations for now! The new Rule isn’t applicable until the August 1 deadline, but the 2020 regs are also not going away and will remain applicable for all pre-August 1, 2024 incidents, which will be the case after August 1 as well. The consultants from ATIXA are here to help you with your revision and implementation process. We can help with revising policies and procedures, and with re-training. Schedule time with us now to ensure you’ll have us lined up when we’re needed.