Biden Administration Signals Multiple Waves of Title IX Regulatory Changes
By Joshua Whitlock, of Jackson Lewis
On April 6, 2021, the U.S. Department of Education’s Office for Civil Rights (“OCR”) announced that it will take the following steps regarding the sexual harassment-related Title IX regulations that took effect on August 14, 2020 (the “current regulations”):
- issue a Q&A document “in the coming months” in an effort to provide additional clarity on how OCR interprets schools’ existing obligations under the current regulations;
- hold a public hearing to allow students, educators, and others with interest and expertise to participate by offering comments on select Title IX, sexual harassment, and sex discrimination issues; and, ultimately,
- amend the current regulations through the formal rulemaking process.
OCR emphasized that these steps are part of the comprehensive review required by President Biden’s March 8, 2021 Executive Order on “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity” and also emphasized that the current regulations remain in effect during the review.
These OCR actions will result in at least two significant waves of change in terms of how schools are expected and required to address sexual harassment and related behaviors: first, likely limited, but still potentially impactful, interim changes stemming from the Q&A document and, second, likely much more extensive changes stemming from the formal rulemaking process. It is important that schools pay close attention to both of these anticipated change waves while also understanding key differences in their respective timing and likely impact.
Timing and Likely Impact of the Q&A Document Versus Formal Amendments
Because the current regulations resulted from a formal rulemaking process and carry the weight of law, they can only be amended pursuant to a new formal rulemaking process. The previous administration’s formal rulemaking process, which included an extensive public notice and comment period, took over two years, and the Biden administration’s effort is likely to take somewhere around two years as well, due in large part to the public notice and comment period that it will necessarily involve. As a result, the widely anticipated and presumably massive (given the Trump and Biden administrations’ divergent views on this front) formal amendments are likely many months away, and the more immediate question Is what effect the nearer term Q&A document will have.
The Q&A document will be heavily limited in its ability to contradict requirements specifically set forth in the current regulations, but it will likely be impactful through its treatment of (1) aspects of the current regulations open to interpretation; and (2) closely related issues not addressed by the current regulations. For example, while the current regulations set forth prescriptive requirements for the grievance procedures used by schools to address certain, specifically defined types of sexual misconduct, they leave almost entirely up to schools how to address other types of sexual misconduct. The Biden administration may step into that opening and use the Q&A document to create new expectations for the latter category of behaviors. And, while Q&A document expectations certainly wouldn’t carry the legally binding weight of formal regulations, they would carry the significant weight of being issued by the agency that enforces Title IX by, among other things, conducting compliance reviews of, and investigating complaints related to, any school that receives federal funding.
On net, the nearer term Q&A document is likely to require that schools make more limited but still potentially complex and impactful changes to their sexual misconduct-related policies, procedures, and training approaches, while the still many months away amended regulations are likely to require a much more comprehensive revamping. These anticipated developments, and the new challenges that they will bring, invite a fresh look at how effectively schools are approaching annual training for employees tasked with investigating and resolving sexual misconduct allegations (namely coordinators, investigators, hearing officers, and appellate authorities).
Time for a Fresh Look at the Current Title IX Team Training Approach
Providing effective Title IX team training can be challenging, but it is essential to ensuring both compliance and campus safety. The complexity of the current regulations (which require, for example, live hearings with cross-examination) plus the incoming Biden administration interpretation combine with other factors to increase the already tremendous pressure on college and university employees charged with addressing sexual misconduct allegations. A school’s annual training for Title IX coordinators, investigators, hearing officers, and appellate authorities must address these shifting legal requirements and equip team members to navigate sensitive situations with skill and care, while closely following institutional procedures and ensuring fairness to both parties. Given the contentious legal environment and the requirement that training materials be posted publicly, careful preparation and vetting have never been more important. At the same time, the logistical and financial constraints faced by schools have never been greater.
Now is an excellent and important time for colleges and universities to re-examine their annual Title IX team training approach and to thoughtfully seek new, creative, innovative ways to increase efficiency and effectiveness.
A simple but useful Title IX team training audit could include gathering a thoughtfully selected, multi-departmental team of stakeholders to evaluate the current approach (i.e., current annual Title IX team training activities) while carefully considering unique institutional characteristics and culture. The team could explore weighty questions like the following.
- Is our current approach truly equipping team members for success in their often daunting and always critically important roles?
- Is our current approach truly maximizing institutional resources?
- How would others evaluate the thoroughness, thoughtfulness, and ultimate success of our current approach? (OCR, courts, students, employees, parents, the broader campus community?)
- Are there other training options and activities that we should explore?
- What can and will we do better on this front?
The following are additional tips for ensuring compliance, effectiveness, and sustained Title IX team training excellence.
- Employ a combination of both (1) internal team training delivered by the Title IX coordinator and focused heavily on institutional policies, procedures, and practices; and (2) training on regulatory complexities and industry best practices delivered by an outside expert.
- Employ a combination of both (1) live training that allows for real time questions; and (2) recorded training that facilitates scheduling and remote work arrangements, cross-training of team members for multiple roles, participation and completion tracking, and re-training and spot training as necessary for concept and skill reinforcement.
- Ensure that your Title IX team training involves substantial experiential and assessment components to promote deeper processing and internalization and more effective post-training application.
- Hold Title IX team meetings at regular intervals to reinforce training through tabletop exercises, after action assessments, joint review, and discussion of select portions of recorded training modules, and team members training and mentoring each other.
- Systematically collect and distribute to Title IX team members Title IX-related updates and resources, many of which are available for free from law firm and other higher education industry blog posts, and which can be used to keep key topics fresh in team members’ minds between training sessions.
It appears that the Title IX regulatory pendulum will continue to swing for at least the next couple of years. In the meantime, and especially given the high stakes and potentially extensive human impact surrounding sexual misconduct allegations plus lingering, pandemic-related logistical and financial challenges, it is more important than ever to train Title IX team members carefully, thoroughly, cost-effectively, and practically. As we await the next waves of short- and longer-term Title IX regulatory change, schools should revisit their annual Title IX team training approach with an eye toward creative and innovative ways to better equip team members for success in their critically important roles.
Josh Whitlock is a Principal in the Charlotte office of Jackson Lewis P.C. He focuses his practice on meeting the legal needs of higher education institutions and has extensive experience defending colleges and universities in a broad range of litigation and investigations, as well as counseling them on a variety of issues, including Title IX-related compliance and the handling of sexual misconduct allegations.
Josh frequently interacts with the U.S. Department of Education, having successfully represented schools in dozens of federal investigations and participated in multiple, invitation-only, small group listening sessions with Education Department leadership on topics such as Title IX regulatory reform and the rights of transgender students. He is a national thought leader on Title IX–related claims and compliance and frequently speaks and publishes on those matters.
Josh is particularly focused on delivering comprehensive, cutting edge, practical, engaging, and cost-effective Title IX team training. He has conducted hundreds of Title IX trainings for a broad range of institutions and has helped dozens of schools design and enhance their annual Title IX team training programs.
He also has taken the lead on developing an innovative and interactive annual Title IX Video Training Series that combines carefully designed recorded modules with unlimited on demand access and other features to deliver a top of the industry solution at tremendous value. More information regarding the Series is available at jacksonlewis.com/titleixtraining.
