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 IX.
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.
Sarah 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 shared governance.
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 behavior.
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.
Terry 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.
Ann 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.
Tumbarello: The 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.
Martha 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.
James: My 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.
Garner: I 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!
Tumbarello: One 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.
Compton: The 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.
