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Today marks just 17 days remaining until colleges, universities and K-12 schools across the United States must be in compliance with the U.S. Department of Education’s controversial 2020 Title IX Regulations that were released May 6.
And Tully Rinckey PLLC Senior Counsel Ryan Thompson, who leads the firm’s Title IX/Sexual Misconduct practice group, is finding that many institutions are not fully prepared.
“Especially with the short deadline during these turbulent times, many institutions just aren’t ready for August 14,” Thompson said. “Even some of those that have made progress with policy revisions understandably haven’t had the chance to assemble the team and role-players that are now required under these new regs.”
Who will be the investigators? Who will be the hearing chair? Will there be a panel? Who will be the advisors now required for every Title IX hearing? What roles will be filled externally by independent contractors or attorneys? These are some of the questions for institutions as they design their processes.
Perhaps more importantly, Thompson explained, are the large scale institutional decisions that will shape how the school approaches matters of sexual misconduct, as these decisions will impact how their communities respond.
“Will the school have one Title IX-compliant process for all sexual misconduct, or will they have two or even three separate avenues?” Thompson asked. “Revisions of policy and process cannot really begin until the institution decides what the overarching procedural goal is.”
For instance, will adjudication of an alleged sexual assault on campus go through a different process than an incident that occurred at an off-campus house party? Only the former is Title IX. But how do schools want to handle the latter? What messages are being sent by handling these cases through the same or different processes?
“Unless you have been studying and obsessing over the regs like some of us have for the last three months, it may be hard to see all the ramifications of every decision. There are nuances to these choices, and it’s important to play out the hypotheticals until we have real-life examples to learn from.”
For instance, what is a school to do when the alleged conduct doesn’t appear to meet Title IX’s new sexual harassment definition of “severe, pervasive and objectively offensive,” and the school uses a non T9-compliant process, but then later discovers the allegations are actually serious enough to meet the definition?
“Resetting a whole investigation will be cumbersome, and it appears to me that the Title IX Coordinator’s job to initially determine whether the reported allegations satisfy this §106.30 definition will be one of the most challenging moments in the case,” Thompson said. “For borderline situations, institutions will struggle, and I fear outside persuasion and process-shopping.”
Additionally, for every institution, they still must to be mindful of compliance with the Violence Against Women Act (VAWA), as well as any state laws, like New York’s Article 129-B “Enough is Enough” statute.
“No one, including the federal government, has figured out how all of this is going to work yet,” Thompson said. “That’s why it’s important to engage in these conversations now and really explore what your policy and process decisions will mean for your students and employees in the future. One ill-advised or incorrect paragraph or procedure can cause excessive complications down the line.”
Thompson is available to have conversations and initial consults with educational institutions and businesses free of charge. He is also available for more extensive work providing counsel on overall policy and process, as well as on individual cases and investigations. Thompson is one of the few select attorneys pre-approved by United Educators Insurance. This allows the hundreds of institutions that are insured by United Educators to receive a $10,000 rebate on qualified investigations when hiring Thompson to conduct them.