by Camille Perlman
When new Title IX regulations went
into effect for institutions in the United States on August 14, 2020, their impact was felt on campuses that had to quickly change policies and processes in the midst of a pandemic. The Talking Stick reached out to four experts who participated on a
panel this past June during the ACUHO-I Virtual Summit and discussed what
effects these new regulations would have on the lives of students and staff. We
asked them to speak to various amendments within the regulations and to share what
they see changing in the policies, processes, and training on campus around Title
Participants are Sarah Garner, ethics and compliance officer and Title IX coordinator at
Northern Illinois University in DeKalb; Terry Tumbarello, director of
residence life at the University of Wisconsin-Whitewater; Ann James, director of the office of community
standards at Miami University in Oxford, Ohio; and Martha Compton, dean of
students and deputy Title IX coordinator at Concordia University Texas in Austin.
Garner: The new regulations have developed a three-prong
definition of sexual harassment that applies to students and employees of the institution.
The first prong is quid pro quo sexual harassment, defined as “an employee of
the recipient conditioning the provision of an aid, benefit, or service of the
recipient on an individual’s participation in unwelcome sexual conduct.” This
prong has not significantly changed and, to note, appears to apply only to the
conduct of employees.
The third prong – I’m skipping the second for a reason –
defines sexual harassment as including sexual assault, dating violence,
domestic violence, and stalking. These are also known as the Violence Against
Women Act (VAWA) crimes and are pulled from the FBI’s Uniform Crime Reporting
(UCR) System. This allows for a consistent definition of prohibited conduct,
although the regulations do not include a definition of consent. Therefore,
while each institution defines what constitutes a policy violation in the same
way, how they evaluate whether the alleged incident constitutes a form of
sexual assault, for example, may vary based on each institution’s own
definition of consent, whether prescribed by state law or developed through
The second prong is where the majority of change lies.
Typically called hostile environment sexual harassment, the new regulations
state that sexual harassment includes “unwelcome conduct determined by a
reasonable person to be so severe, pervasive, and objectively
offensive that it effectively denies a person equal access to the recipient’s
education program or activity” (emphasis added). This new definition requires
all three elements to be present in a claim of sexual harassment – hence the “and” language. In years prior,
sexual harassment was conduct that was severe or
pervasive. The new regulations not only require the conduct to be severe and pervasive,
but also objectively offensive. This has raised the threshold of prohibited
conduct. As a result, the institution may include a lesser definition of sexual
harassment within the policy implementing the Title IX regulations or refer the
cases that don’t reach the threshold to their institution’s student code of
conduct for adjudication for a different type of charge, such as disruptive
Regarding the employment sector, institutions must still
adhere to Title VII of the Civil Rights Act, which defines sexual harassment
using the “severe or pervasive” language. Therefore, a challenge that institutions
must tackle is training on Title IX sexual harassment and Title VII sexual
harassment – both called sexual harassment yet defined differently. Further,
some institutions may develop one policy and one process for both types of
sexual harassment or have different policies or different processes.
Tumbarello: The new regulations allow institutions to determine who
are designated responsible employees and thus required to report Title IX
violations that have been disclosed to them. In our discussions, as well as the
informal survey we conducted during the ACUHO-I Virtual Summit, the vast
majority of campuses have decided to keep their residence life and housing
live-in staff, including student positions such as RAs, as responsible
employees. The campuses that had not decided were mostly leaning towards
no change, while a small number were considering changing.
Institutions will need to ensure that there are no state
reporting requirements tied to sexual assault, harassment, or other sexual
misconduct with which they would still have to remain in compliance. I
recommend that each campus carefully considers each position when determining
how to classify, while also consulting with the campus Title IX coordinator(s) and
institutional leadership. If the decision is made to not require student
staff or professional live-in staff to report, it is critical that they receive
the necessary training to serve as appropriate referral resources to students
who may need this information and services. It is equally important that
institutions do everything possible to educate students on how to report sexual
misconduct if they want the institution to respond and investigate. Every
residence hall student should receive contact information for the campus Title IX coordinator that includes office location, email address, and phone number.
James: In order to best support students through the hearing
process required under the new Title IX regulations, we must start with both
education and care. It is critical that when a student files a report or is the
named party in a report, they are educated quickly about what the process
entails and what options they have to move forward. Students need to understand
that not only will they be participating in a live hearing, but that they will
also be asked questions by the other party's advisor who may very well be an
attorney. I am not advocating that we discourage students from participating in
the hearing process for Title IX violations and other sexual misconduct, but we
must ensure that students have a full, clear picture of what the process will
entail so that they can make informed decisions.
It is also important, in my opinion, that schools integrate
an informal resolution process to accommodate students who want to resolve the
harm that was caused through an incident but do not wish to participate in a
hearing. Of course, not all cases are appropriate for informal resolution, but
for the ones that are, having that option for students is one of the most
supportive, developmental things we can do.
With regard to fairness on the part of advisors, that is a
really hard question. We know that institutions are required to provide
students with an advisor to conduct cross-examination during the hearing, but
they are not required to provide them with an advisor who is an attorney. This
brings up a potential inequity when one student has the resources to hire an
attorney as their advisor and the other does not and is provided a non-attorney
advisor by their college or university. Institutions have a duty to select the
most qualified, experienced advisors that they can and to provide them
extensive training on how to serve students in this role. I cannot emphasize
the training piece enough. None of us are experts on these new regulations yet,
and many lessons will be learned as we move into the fall semester, but we must
prepare our advisors to serve our students in a competent, supportive way. The
other way that we can work toward equity is to ensure that advisors who are
with students in a hearing are held to the same standards of behavior
regardless of their status as an attorney.
new regulations allow the recipients (the institution) to remove a respondent
from their current residence hall assignment on an emergency or interim basis,
with or without process, provided that the respondent has the ability to
challenge the removal and the removal does not prevent the respondent from
pursuing their academics. The new regulations state that these supportive
interim measures must not unreasonably burden either party and may not be punitive
or disciplinary in nature. Institutions also have the option to temporarily or
permanently move the complainant prior to any adjudication if they request to
do so. These measures can also include campus dining halls.
These interim supportive
measures can be a plus as they allow the institution to provide immediate security
to a student who has indicated they are concerned about their safety. This
allows the student to be able to come and go in their residence hall without
having to worry or stress over seeing or interacting with the respondent. The
immediacy of these measures is far more efficient and beneficial to impacted
students and staff than having to await the outcomes of the investigation and
then the adjudication process, which can take several weeks.
Compton: In evaluating a situation to see if an emergency removal
is appropriate, institutions will need to do an “individualized safety and risk
analysis.” In order to initiate an emergency removal, the analysis must
determine that the respondent poses an “immediate threat” to the health or
safety of any student or other individual and that
the threat arises “from the allegations of sexual harassment.” This means that
the assessment needs to be focused on the allegations from the incident or incidents
in question. This is particularly impactful for institutions that had a
standard protocol related to removal for all cases. The new regulations are
clear that each situation needs to be considered on its own merits.
Additionally, if an institution decides to issue an emergency removal, the
respondent must receive notice of the removal and have an opportunity to
challenge the decision “immediately following the removal.” Institutions will
need to be sure to have that process in place if they hadn’t already.
advice is to center student voices as much as possible while working towards
compliance with the new regulations. While there are areas of the regulations
that are less flexible than others, there are some areas over which we do have
control. I encourage everyone to focus on those areas that we can customize to
our student populations in order to provide the most supportive, developmental,
and restorative process possible.
echo Ann’s advice. Look to your students and employees as to what is best for
them when we are afforded flexibility in how we implement the regulations.
Focus on what you value as a university and how we can weave those values into
our process. Also, look to your colleagues for advice. We are all in this
together, so now is the time to develop relationships with other administrators
or campuses to learn about what may work well and what doesn’t. I know I’ll be
calling Ann on advice for hearings!
of the benefits to the new regulations is that in many areas campuses are now
afforded more autonomy. I encourage you to use this as an opportunity to
continue to forge and develop strong working relationships with other campus
and community partners as you develop processes that make the most sense for
your students and your campus. I also suggest that you conduct a thorough
review of your state statutes, as the changes in the Title IX regulations may
not impact you based on what state guidelines are. Finally, always be
prepared to be nimble and constantly ready to adjust to further regulation
changes, as the upcoming election may or may not bring more.
biggest piece of advice I have, in addition to what others have shared, is to
take care of yourself and your team. Responding to, investigating, and
adjudicating incidents of sexual misconduct and interpersonal violence is
challenging work, and not something most can shrug off at the end of the day. Check
in with yourself and others frequently, and don’t be afraid to use resources
like your Employee Assistance Program or an outside counselor to talk through
your thoughts and feelings related to this work. I really recommend the book Trauma Stewardship: An Everyday Guide to
Caring for Self While Caring for Others by Laura van Dernoot Lipsky and Connie Burk as a good
place to start.
Camille Perlman is managing editor of the Talking Stick.