On August 14, 2020, colleges and universities are expected to comply with new regulations regarding sexual harassment under Title IX of the Education Amendments of 1972. This new rule, which spans more than 2,000 pages, requires colleges and universities to revamp their Title IX reporting policies and practices in just a few weeks.
Updated AGB Advisory Statement on Sexual Misconduct
AGB has just released the 2020 AGB Advisory Statement on Sexual Misconduct. Since 2011, AGB has continued to evaluate and amend this resource to keep current with the latest guidance from the U.S. Department of Education, and encourages boards to be thoughtful partners with presidents and leadership teams regarding issues of sexual misconduct. The statement includes context about why these regulations were updated, questions for boards and key institutional leaders, the five most important provisions in the regulations, and suggested practices for boards and institutional leaders moving forward.
What are the changes in the new rule?
A list of key changes that board members should know can be found here. For a comprehensive outline of all changes, the Department of Education’s summary can be found here. The regulations are complex and prescriptive, laying out expectations and procedures for student cases of sexual harassment, and how institutions must respond to reports of sexual harassment from faculty and staff. It is important to bear in mind that these regulations are final and carry legal ramifications for noncompliance.
While the new regulations introduce the opportunity for more informal resolutions such as mediation, all institutions must be prepared to offer the accuser and the accused a live hearing with cross-examination, similar to a court/judicial hearing. Both parties must be allowed an advisor (who can be a lawyer), and there must be a decision-maker who was not an investigator to adjudicate the case.
The new regulations compel institutions to review their Title IX policies and practices and make appropriate changes to ensure compliance. Some of these changes could be costly: for example, training institutional leaders about new policies/procedures, and sharing this information broadly with all campus constituents. Additionally, it will be necessary to ensure that both parties in a complaint have advisors (legal counsel or others) and that there is an individual who is qualified to adjudicate each case. Simultaneously, updates to risk management policies should be addressed.
There are other, broader implications. One important issue, especially as it relates to public institutions, is how this rule will affect perceptions of due process outside of Title IX cases. Many institutions comply with due process requirements when adjudicating student conduct violations, but that which constitutes appropriate due process has varied. Now that the Department of Education has provided an example of how it believes due processes should play out on campuses, it is possible that new claims related to due process violations will showcase the Department’s requirements as the standard, meaning that other processes that ensure due process will be expected to appear similar to Title IX regulations.
Given that some administrators or university counsels will need to take on additional responsibilities to comply with the regulations, additional training/professional development for these individuals is recommended. The National Association of College and University Attorneys (NACUA) offers a Title IX Coordinator Training course, and NASPA: Student Affairs Administrators in Higher Education recently introduced a Title IX Certificate Program for coordinators, decision-makers, and investigators.
What questions should the board ask?
- Does the board (or a designated committee thereof) discuss national developments, campus trends, and legal requirements related to sexual misconduct with the president and institutional leaders?
- Has the institution allocated sufficient resources and staff to meet its Title IX and related obligations?
- Under what circumstances are institutional leaders expected to apprise the board (or a committee thereof) of Title IX-related developments so that it may fulfill appropriate board-level fiduciary obligations?
What other resources and services are available to me?
In addition to the 2020 AGB Advisory Statement on Sexual Misconduct, AGB has additional tools and guidance to support your board.
Title IX Changes- What Board Members Need to Know – On July 1, 2020, AGB gathered four subject matter experts to discuss the specific changes in the new regulations in a 75-minute webinar. Watch and learn at your convenience.
Final Title IX Regulations on Sexual Harassment – This policy alert focuses on the public policy aspects of sexual misconduct, including a summary of the most important changes that boards should know.
Title IX & Sexual Misconduct in the AGB Knowledge Center – Peruse all of our resources on Title IX and sexual misconduct in one place.
The implementation deadline for the new rule is fast approaching. Ensure you have the knowledge and information to provide oversight of these critical issues during this time of change and transition.