2024 Changes to the Title IX Regulations: What Campuses Need to Know Now
Yes
4/29/2024 2:00 PM
4/29/2024 3:00 PM
Format: Online
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Program Type: Webinar

Webinars are free, 30- to 90-minute virtual events. ACE experts, campus leaders, and other voices from within and beyond higher education discuss critical questions and promising practices around a timely topic. Registrants have the opportunity to share their questions during the live event and to access the recording afterward.

About the Webinar

In March 2021, the Biden administration issued an executive order that called on the U.S. Department of Education (ED) to review and revise the Title IX regulations to ensure educational environments that are free from discrimination on the basis of sex. In July 2022, ED issued a draft of its proposed rule. The following September, ACE—along with nearly 240,000 other interested stakeholders—submitted comments. ED announced on April 19 that it had issued its long-awaited final rule, which is set to take effect on August 1, 2024.

This panel of higher education Title IX legal experts provides a high-level overview of the key changes in the final rule, identifies its challenges, and discusses possible next steps for campuses as they work to ensure compliance by the August 1 deadline.

This free webinar is intended for college and university presidents and chancellors, provosts, general counsels, government relations and student affairs officers, human resources professionals, Title IX coordinators, and other campus leaders who have Title IX responsibilities.

 Transcript

Peter McDonough: Good afternoon, folks. You are joining ACE’s 2024 Title IX final rules webinar. We’re going to be looking at the changes to the Title IX regulations, what campuses need to know.

My name is Peter McDonough. I’m the vice president and general counsel here at ACE. I am joined today by my ACE colleague Anne Meehan, assistant vice president for government relations. Joined as well by a really fabulous panel, deeply knowledgeable, steeped in this area. We have Caroline Laguerre-Brown, who’s vice provost for diversity, equity, and community engagement at George Washington University. We have Patty Petrowski, associate vice president and deputy general counsel at the University of Michigan. We have Janet Judge, founder and partner, Education & Sports Law Group. And we have Josh Richards, partner and the Higher Education Practice Chair at Saul Ewing.

I don’t think that I am understating the reality for these folks, that they’ve spent a lot of time during the last 10 days focusing on exactly what is changing as a result of this final rule. I say 10 days, because it was on April 19 that the Department of Education released its 2024 Title IX final rule. What that does, it makes amendments to the regulations that were issued back in 2020. Importantly, the final rule requires campuses to be in compliance with these changed rules by August 1, 2024.

We’re going to have a conversation about that over the next hour. My colleague Anne is going to prompt these fabulous folks to talk about these things. She’s doing that drawn from a discussion that the six of us have had as we’ve prepped for today but also from some questions submitted by registrants. So there will not be an opportunity during this hour for you all to in live form, submit questions to us, but we hope that by the time we’re done we will have spoken to most of the things that have been on your mind since you took a look at this package 10 days ago or five minutes ago or maybe, after we’re done here.

What we’re going to try to do is we’re going to talk about the breadth of these regulations. There’s a broadened scope. We’re going to try to talk about changes regarding when an institution is on notice of something that these regulations speak to. We’re going to talk about faculty and staff obligations, including in the athletics department. Confidential employees is a term you’re going to hear about, and it will mean something to you in the Title IX context by the time we’re done. Talk about training obligations. The impact of these changes on the Title IX coordinator. Don’t want to bury the lede here. This is huge. And we’re going to talk about investigations and grievance procedures. That topic was an enormous focus during 2020. The fact that I got to it about fifth in the list tells you that there’s a lot more here than just that this go-around. And we’re going to talk about pregnancy and related conditions. So there’s a lot to accomplish over the next hour or so, and I’m going to now turn it over to Anne.

Anne Meehan: Okay, great. Thanks, Peter. I’m going to start right in with a question for Josh about that broadened scope that you referenced. For the past 10 or 15 years, we really have focused Title IX on sexual harassment and especially sexual assault on campus. So my question is, with the 2020 regulations we saw a continuation of that focus, but this is something different here now. So, Josh, can you talk to us about broadened scope. What do we need to know?

Joshua Richards: Sure. Thanks, Anne. So there’s a story to the way that which the Department has structured institutional obligations to respond to conduct on campus in connection with these new regs. It’s the story of broadened obligations. We’ve thought for a long time about the way we respond to garden-variety misconduct on campus. And as the Tile IX regulations have evolved, we’ve found this core of conduct that we have to respond to in a very specialized way because the department tells us that’s how we have to respond. That happened under the 2011 Dear Colleague letter. It happened under the 2020 Trump rules.

And now the department has really dramatically expanded that here’s the kind of conduct that you have to respond to in a specialized way by regulating, not just with respect to sex-based harassment, as Anne said, but also with respect with respect to sex-based discrimination. So right out of the gate, these regulations apply not just how institutions have to respond when they’re put on notice of harassment in their in their programs and activities but also any kind of sex-based discrimination.

So keeping with the theme of broadened obligations, sex-based discrimination also explicitly incorporates references to not just on the basis of sex as we traditionally understood it pre-Bostock, but also including everything that got brought in by the Supreme Court’s recent case law around gender identity, sexual orientation, sex characteristics, but also pregnancy. So we’re talking about a big tent of sex-based discrimination. So these regulations order us to respond to that sort of discrimination or harassment in specified ways that we’ll talk about later on.

Sex-based harassment has sort of become the successor to sexual harassment, and it’s pretty similar to the prior regulations. It still includes quid pro quo sexual harassment in the workplace. If you don’t do X, I’ll do Y, on the basis of sex. Clery crimes like sexual assault, stalking, dating violence, that sort of thing. And then also this, again, broadened category of hostile environment sexual harassment, which includes essentially conduct that’s severe or pervasive and limits a person’s ability to participate in the program or activity. Again, that “limits” is new. It’s broader than the “denies” language that we had in the prior reg, and it’s now severe or pervasive. So, again, the theme here is to sweep more conduct into the definition of these terms that we have to respond to.

Again in the scope issue, previously, under the 2020 regs, we were told sex-based harassment that occurs in our programs or activities. So on campus is sort of the shorthand for that. It never was everything. But we’re talking about things that happen in the context of our programs are the things that we have to respond to.

The department did a little bit of a sleight of hand around that. And they’re still saying, “Well, it’s in your programs or activities. But we’re going to define your programs or activities not just by reference to what happens on campus or school trips or in properties owned or controlled by student orgs, but also anything that you view as being within your disciplinary authority.”

So most institutions have taken the view that if a student engages in some particularly harmful conduct on social media, even if it’s outside of the institution, we may respond. If a student gets a DND on spring break, we may respond to that. What the department is saying is if you respond to that kind of conduct within that scope, Title IX also occurs within that scope, and so it dramatically expands the where and the when and the how of the response application.

A complaint under the new regs can be brought, again, by a student or employee, which is what we’ve been used to, but they can also be brought by any third party who was participating in your programs or activities. And so this would include people who come on campus to give a speech, or attend a speech, to participate in a sporting event, or even maybe to watch a sporting event. So we’re, again, dramatically expanding the scope of people who can complain about conduct on your campuses, particularly with respect to sex-based discrimination that’s occurring.

And the last expansion that I’ll talk about, just for a moment, is this idea around transgender students and their participation in our programs or activities. Again, these protections have been created with a very specific needle to thread. There are lots of circumstances in which transgender students may continue to get rights under regulations that haven’t yet been published with respect to athletics, et cetera. But the department did include a specific provision in this regulation that talks about the way that transgender students can be harmed in the context of programs that are separated by gender as we operate our programs. And so I think that’s the broadened scope in a nutshell, in four minutes or less.

Anne Meehan: Amazing, thanks for going through that because that is a huge change in terms of the who, what, where, how of the scope of what we need to be responding to and thinking about. Can you talk a little bit about this de minimis harm standard that is in the final rule? It was in the proposed rule too. Can you explain that to us a little bit more? Talk to us about that.

Joshua Richards: Sure. And the first thing I’ll say about this, Anne, is that the regulation on this issue of de minimis harm, and this gets very lawyerly and very in the weeds very quickly for this group, and I know that.

But the regulation’s a little bit opaque. But I think what the department is trying to say with this de minimis harm standard is there are circumstances where the Title IX regulations permit us to separate students on the basis of sex: athletics, housing, fraternities, those sorts of things.
The department appears to be saying we can continue to have that differential treatment on the basis of sex because it’s provided as part of the statute or the regulation, and where those sets of separations are explicitly enshrined by statute, transgender access to those activities will not be considered above de minimis harm such that that would be considered discrimination on the basis of sex that violates Title IX.

But in other circumstances, and here the most important ones are bathrooms and locker rooms, separating a student from access to those kinds of facilities on the basis of their gender identity is going to be per se more than de minimis farm.

So it seems to be a way for the department to say there are some circumstances where transgender students are just required to get access and that depriving them access on the basis of their gender identity and reverting to their gender assigned to birth is going to constitute more than de minimis farm in every instance.

Anne Meehan: Thanks. That’s helpful. Caroline, can you talk to us a little bit about notice? When are institutions on notice that they need to be addressing sex discrimination on their campuses?

Caroline Laguerre-Brown: Absolutely. Thank you, Anne. So, according to the new Title IX regulations, an institution is considered on notice about possible sex-based discrimination when it receives notice of conduct that reasonably may constitute sex discrimination in its educational programs or activities. The regulations require schools to take prompt and effective action when notified of such conduct. And when I listen to that, that definition or that set of parameters, it hearkens back to traditional Title VII case law that says if you knew or should have known and failed to take prompt and appropriate action, you’re liable. It’s that same underlying principle.

The regulations, however, do not specify exactly what type of notice triggers an institution’s obligation to address potential sexual discrimination. They state that schools must respond when they have knowledge of sexual harassment. Therefore, reports or complaints from students, employees, or third parties would put the institution on notice and require a response.

The regulation also outlines steps that institutions have to take in order to ensure that they have knowledge of conduct that reasonably constitutes sex discrimination and that they respond appropriately when they have that requisite knowledge. So it requires institutions to monitor the recipients’ education program or activity for barriers to reporting information about conduct that reasonably may constitute sex discrimination. So you have to proactively scan the environment for those kinds of barriers. You want to take steps reasonably calculated to address those barriers.

You also want to establish a notification policy that requires any employee who’s not a confidential employee, which we’ll talk about a little bit later, and who either has an authority to institute corrective measures on behalf of the recipient, or has the responsibility for administrative leadership, teaching, or advising. These folks are required to notify the Title IX coordinator when the employee has information about conduct that reasonably constitutes sex discrimination. Any other non-confidential employee either needs to notify the Title IX coordinator or provide the Title IX coordinator’s information to whomever reported the conduct to them.

So the Department of Education is indicating that these notice requirements will more effectively ensure that institutions receive knowledge of conduct that may constitute sex discrimination. So, though the exact parameters are not defined, the underlying message here is that when in doubt, you should report, and when you’ve got information that, again, could reasonably constitute sex discrimination, you have to act.

Anne Meehan: Great. Alright, that’s helpful. We’ll stick with this theme a little bit. Patty, can you talk to us about employees’ obligations to report? I know that the proposed rule was rather complicated in setting out who was required to do what. Talk to us a little bit about where we landed in the final rule.

Patricia Petrowski: Sure. Thanks, Anne. That a great question. Caroline covered some of this in in her prior answer. But I’ll take a bit of a deeper dive. So, as Caroline mentioned, the department has moved away from an actual knowledge standard, which, under the current rule, is either notice to the Title IX coordinator or an official with authority to institute corrective measures, which is essentially someone who imposes the discipline or the sanctions following a determination of responsibility.

And the Department has moved away from that to something that is much broader. The final rule requires all employees, even confidential employees, which Caroline will talk about in a few minutes, to take specific actions upon learning about sex discrimination, not just sexual harassment. So the new standard is much broader, not only in terms of who is required to report, but also what they are required to report.

So Caroline mentioned that any employee who has the ability to institute corrective measures on behalf of the institution, or who has teaching, advising, or administrative leadership obligations must notify the Title IX coordinator when the employee has information about potential sex discrimination. And then all other employees who are not confidential, they must either notify the Title IX coordinator or provide the contact information of the Title IX coordinator and information about how to make a complaint to the person who informed them.

So in terms of who is required to report. the new rule encompasses far more employees. Rank-and-file faculty are now required to report, as is anyone who is an advisor. But I think the important distinction here is that even employees with roles outside of teaching, advising, and administrative leadership, they must either report to the Title IX coordinator or, again, provide the Title IX coordinator’s contact information and information about how to report.

Practically speaking, I think for schools that currently require all employees who are not confidential to report, this new standard will be far less of a change. But for schools that currently have a more nuanced approach to reporting, I think the new notification requirements will undoubtedly be a big, big change.

And then the scope, the scope of what employees are obligated to report also has significantly expanded from sexual harassment to all forms of potential sex discrimination. And it’s not limited to what you’re told but what you’re aware of. So let’s take a couple of examples.

If a faculty member hears several female students talking about the fact that there are far fewer paid positions available in the research lab for females than males, that faculty member has an obligation to notify the Title IX coordinator.

Similarly, if a coach overhears two female athletes lamenting the disparity in the quality of training facilities for females versus males, let’s say it’s female basketball players, the coach has to report it to the Title IX coordinator. And frankly, if the coach is aware of the disparity in the training facilities available to female athletes versus male athletes, that coach has an obligation under the final rule to notify the Title IX coordinator, even if nobody has complained about it to the coach.

So I think over time, this means that the Title IX coordinator should be receiving and responding to even more reports and complaints than they are today.

Anne Meehan: So we see an expansion in terms of the employees who are going to have some sort of reporting obligation. I want to bring us back to one of the things you mentioned, which was about confidential employees. This has been an issue I know it’s of concern to a lot of our ACE members, which has been concerns about when, particularly in the case of sexual assault, whether a survivor has the opportunity to confide in someone without triggering a mandatory report to the Title IX coordinator. So, Caroline, would you talk us through a little bit about the confidential employee requirements in the final rule? What do we need to know about those?

Caroline Laguerre-Brown: Sure. So the final rule defines a confidential employee as an employee whose communications are privileged or confidential under federal or state law. So, for example, doctors and counselors that have a doctor-patient confidentiality relationship. Another example would be an employee designated as confidential by the recipient for providing services related to sex discrimination. So many of our institutions have offices that are dedicated to supporting individuals impacted by interpersonal violence that are designated as confidential. And also, employees that are conducting an institutional review board-approved human subjects research study on sex discrimination with the confidentiality there limited to information received during the study.

So colleges and universities do have some flexibility to designate employees who will be considered confidential employees. For many of us that will not be a change. It will be critical for institutions to clearly delineate which employees are considered confidential, as institutions must notify their community members on how to contact confidential employees, except those who are confidential only for the purposes of that IRB study that I mentioned.

In addition, it’s important to be clear about who is a confidential employee, as the requirements for reporting to the Title IX coordinator are different for confidential employees as compared to other employees, as was mentioned earlier.

Confidential employees are not required to notify the Title IX coordinator when they receive information regarding conduct that could reasonably constitute sex discrimination. However, they are required to explain their role as a confidential employee and make it clear that they are not required to report to the Title IX coordinator. They also have to explain how to contact the Title IX coordinator and how to make a complaint of sex discrimination. They also need to explain that the Title IX coordinator may be able to coordinate supportive measures as well as initiate informal resolution processes or an investigation.

So, taken together, these provisions ensure that confidential employees are not burdened with reporting requirements or maintaining the integrity of that privileged relationship or confidential communication within the institution, while at the same time ensuring that community members are well informed about Title IX’s resources and options in case they are considering using those services.

Anne Meehan: Okay, great. Well, that gives us a good sense of the employee reporting things. Patty, I wanted to ask you because we had talked about this in our ACE comment letter on the proposed rules. How do you think we did overall in this employee reporting categories? Is the final rule better than what we saw in the proposed rule? Did they make improvements?

Patricia Petrowski: Thanks, Anne. I think that this is an interesting question. We knew from the NPRM That the department was likely to greatly expand reporting obligations. And the final rule, it’s definitely not a change in that regard. But I do think that it is clearer and simpler than the NPRM. So from that perspective, I think it’s an improvement, albeit probably not a huge one.

Under the NPRM, the notification requirements differed based on whether the conduct involved the student or an employee complainant. So, for example, any employee with teaching, advising, or administrative leadership responsibilities under the NPRM was required to notify the Title IX coordinator when the complainant was a student. But if the complainant was an employee, the employee with the various obligations could either notify the Title IX coordinator or provide the complainant with the Title IX coordinator’s contact information and information about how to report.

The department simplified the rule by saying if the employee has teaching, advising, or administrative leadership responsibilities, they must report to the Title IX coordinator, irrespective of whether it’s a student or an employee complainant.

The department didn’t decrease the requirement or eliminate the requirement, however, that all other employees have to do something, whether it be report to the Title IX coordinator, provide the Title IX coordinator’s contact information, even as Caroline was mentioning, confidential employees now have very specific obligations that they have to say. And I think that that’s a space where ACE would have preferred to see a little more flexibility in the final rule.

Anne Meehan: Alright. Well, before we leave mandatory reporters entirely, I want to pivot here over to Janet to ask her about coaches and athletic staff. I don’t think that the final rules, at least the text does not specifically mention coaches among those with teaching and other responsibilities. But talk to us. What do you think? Should schools presume now that athletic coaches and staff, that they are mandatory reporters for the purpose of this final rule?

Janet Judge: Yeah, I think there’s a lot in these rules that are going to be very applicable in the athletics context and this is one aspect in particular. When you think about administrative leadership, teaching, or advising, as Patty was really so good in setting forth the obligations, you can see how that may play out in the athletics context.

I think it’s pretty fair to say all of your athletics administrative people, staff members are administrative leaders for you. And even many of your support staff are engaged in teaching. People who are in the weight rooms, people who are in the athletics staff areas. So there are a variety of different personnel who fall neatly under the mandatory reports. Or you do have expanding roles in the athletics area, for sure, of people who may not have fall neatly under the teaching or advising or leadership, who would fall into that second bucket that that we’re talking about, who would either have to report directly or would have to let people know how to report and provide them with the Title IX coordinator’s contact information.

That’s almost more burdensome in some respects, sometimes for those individuals. And then also making sure that you’re keeping a record of that. So I think in the athletics context, I think it’s going to be a lot easier to just say everybody in the athletics area in the employment space should be reporters.

I just want to be clear that it talks about reporting to Title IX. So not within somebody else within the athletics space who then would report to somebody else who would then report it to Title IX. It’s pretty clear. It’s also a little wonky in that it talks about conduct because when you’re talking about the athletic equity space, for example, there’s just stuff that is, not necessarily conduct. You have disparities in treatment areas. But I think clearly those will be encompassed in the mandatory report requirement.

Anne Meehan: So, Janet, sticking with you on this topic for a minute more, we heard Josh talk about this de minimis harm standard, and noting that different or separate treatment on the basis of sex, including on the basis of gender identity, is going to constitute more than de minimis harm. So my question is, after these regulations take effect in August, are there any immediate implications for student-athletes’ participation on men and women’s teams?

Janet Judge: Right, so this is what people were all waiting to see in the athletics space, how this may play out. I think, totally building on what Josh was talking about de minimis harm, I think the government put a clear statement out there that they believe blanket rules are more than de minimis harm, but they are not going to apply that in the athletics space right now. We have the athletic regs that are on hold still. But I think they’re also making a little bit of a blanket statement on what their belief is about blanket rules that suppress participation consistent with gender identity.

A couple of quick notes in the athletics space. You did have the board of the NCAA had met to decide what to do in the trans athlete area. There’s no clear understanding of what’s happening. They’re going to meet again in May, so we’ll see what happens in the coming years. Right now they’re at phase two, which means they are applying the rules that are consistent with the Olympic movement, looking at the national governing bodies to determine what the appropriate rules are for student-athletes to participate consistent with their gender. And many of you saw the NAIA also came out with their own determination that they were actually going to suppress participation by athletes consistent with their gender identity.

Anne Meehan: Okay. So let’s talk a little bit now about faculty and staff training, because we know one of the things that’s going to be on folks’ mind over the next three months is trying to make sure that they are meeting all of the training obligations that they have under the final rule. Patty, you took us through some of the reporting obligations that we have. But can you talk a little bit more broadly about our obligations to train our employees and staff? Who must be trained, when, and on what?

Patricia Petrowski: Thanks, Anne. This is a great question, and this is definitely a space where the final rule is far broader and more prescriptive than the current rule, both in terms of who and what we must train on, but also when.

So the final rule mandates training for four categories of individuals on different topics. And it also specifies that the training must be done, both, one, upon hiring or a change in position that alters their responsibilities with respect to Title IX, and annually thereafter. So let’s think about that for a second. Every time someone within an institution changes a position that alters their Title IX responsibilities. I don’t know how institutionally we’re going to keep track of that. So I definitely anticipate this is going to be a bit of a challenge going forward.

So the categories of employees that must be trained and the topics that they must be trained on are as follows. First, all employees. Faculty, staff, everybody must be trained on the following. The school’s obligation to address sex discrimination in its educational program or activity. The scope of conduct that constitutes sex discrimination, including sex harassment. And on the reporting or notification requirements that we discussed just a few minutes ago. So that pertains to all employees.

Second, all employees that are involved in a school’s adjudication process. So all of the investigators, decision makers, any other person who is responsible for implementing the school’s grievance procedures or who has the authority to provide or terminate supportive measures must be trained on all of the same topics that all employees must be trained on as well as the school’s grievance procedures, how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest and bias, and the meaning and application of the term “relevant” to questions and evidence under the school’s grievance procedures.

Third, informal resolution facilitators must be trained on the same topics all employees must be trained on, as well as the rules and practices associated with their school’s informal resolution process and on how to serve impartially, including by avoiding conflicts of interest and bias.

Finally, the Title IX coordinator and their designees must be trained on everything that the three other categories of employees must be trained on, as well as on all of the Title IX coordinators’ specific duties and obligations, the school’s record-keeping system and record-keeping requirements, as well as on all of these training requirements, including the fact that while schools no longer must post their training materials online, so this is a pretty significant change, a school must make their training materials available for inspection upon request from the public.

This doesn’t mean that the school has to provide their training materials. A school could require someone to come to campus to review the training materials as opposed to providing them. But this is a change in the final rule.

Again, I think these training requirements are much different from what the current rule requires. The current rule requires only people who are involved in the grievance procedures, whether they’re formal or informal, must be trained.

And finally, I guess the last thing that I would say is that while all employees must be trained, there is no requirement under the final rule that students must be trained on any topic, whether it be who’s required to report, what is required to be reported, the school’s grievance procedures, or prevention. And, notably, the preamble says that nothing in the final rule prevents schools from training students, and in fact I think they say it might be a good practice, but we’re just not going to require schools to do that.

Anne Meehan: So this really does appear to be training that’s going to need to be campus-wide. I want to talk a little bit more specifically about the Title IX coordinator. One of the things that we raised in our ACE comment letter was a concern about how many new obligations and requirements were being placed specifically on the Title IX coordinator, which is already a challenging role on campus. Caroline, can you talk to us a little bit about this expanded role for the Title IX coordinator? Talk to us about that.

Caroline Laguerre-Brown: Thank you, Anne, thanks for the question. The new Title IX regulations are likely to present significant challenges for Title IX coordinators in implementing the rule and fulfilling their expanded responsibilities. Having started out in higher education in a Title IX role, I have significant amount of sympathy for what Title IX coordinators are going to face in the coming months and years.

Some of the challenges I see first are the lack of resources. So many Title IX coordinators are already under-resourced and overburdened. The regulations require coordinators to take on additional responsibilities, and the offices they lead will need to field a higher volume of reports from their communities if this rule works the way it’s supposed to. This will require more staffing and possibly restructuring of complaint processing offices at our universities.

Right now, for example, our Title IX office coordinates the process for the five categories of misconduct, including sexual harassment, sexual assault, dating and domestic violence, and stalking. But multiple offices across our campus handle complaints of other forms of sex discrimination now, under this rule, which will now need to be overseen by the Title IX coordinator. So, for example, complaints about unequal pay for male and female faculty, for example, are likely right now are handled outside of our Title IX office. So under this new rule, the Title IX coordinator, at least in theory, would be responsible for overseeing that

So resource allocation, organizational structure, et cetera, may need to be reengineered. And these are the kinds of reengineering challenges that normally take place at a glacial pace in higher education. And instead, these changes are going to need to happen very quickly if we’re going to be in full compliance by August 1. So I think that is going to be an extremely heavy lift for our Title IX coordinators.

I also foresee in this moment, as we are facing really challenging problems across the country around rising antisemitism and Islamophobia and lots of concerns about complaint mechanisms at our universities, the Title IX regulations provide enhanced due process for reports of sex discrimination, this discrete category of cases. Equity offices should be prepared and Title IX coordinators should be prepared to respond to questions from the community about why these heightened protections are not also offered in response to reports of discrimination based on race, religion, national origin, shared ancestry, other protected characteristics.

So one solution to this equity issue might be to elevate due process protections for discrimination based on other protected characteristics to the level afforded to those reports for sex discrimination. But you can imagine there’ll be significant budget implications, significant resource allocation implications. So I think that’s a problem that I foresee.

Also, one that I’ll mention is appeals for supportive measures. So the final rule requires that an institution provide a complainant or respondent with a timely opportunity to seek from an appropriate or impartial employee modification or reversal of a recipient’s decision to provide, deny, modify, or terminate supportive measures that are applicable to them. In addition, the impartial employee must be someone other than the employee who made the challenged decision and must have the authority to modify and reverse the decision.

This requirement will likely be a big challenge because it is an entirely new requirement that will require additional procedural structures. And institutions will have to determine who will serve in this impartial role and will that person be the same for all types of supportive measures, or will the impartial employee change depending on the supportive measure that’s being sought, say academics versus housing.

So when I think about the obligations of Title IX coordinators, this kind of request happens every single day, multiple times a day. So if every single person has the opportunity to seek an appeal on this kind of request, this, again, will be an enormous burden for the Title IX officer to manage, so definitely think that this is something that is going to be extremely challenging for our Title IX coordinators. But I’ll stop there. I could go on and on, but I’ll stop there.

Anne Meehan: There’s so much on the grievance procedures and appeals and that process, and I can’t believe that we’ve made it to 40 minutes into our webinar and we haven’t even touched on those yet. But with the 2020 regulations, I think the biggest concern for the higher education community was the mandate for a live hearing with cross-examination. And we know the good news is that this final rule removes that mandate. But there’s a lot of other weeds in there. And Josh, I’m wondering if you could talk to us a little bit about the grievance procedures, investigations. What are the rules that we have? What are the key changes over what we’re doing right now in this area that we need to be aware of?

Joshua Richards: Sure. So I think you hit on the big one. Everybody wanted to know whether or not, at least from the Department of Education’s perspective, we were going to continue to have to have hearings in sexual harassment cases, and the answer is no.

After that, the changes get, I think, pretty specific and in the weeds pretty quickly. And I think the best way to think about this is as a two-tier system. And what the Department of Education has essentially done is it’s created a base process. And the base process applies to all forms of discrimination that are going to be triggered by the conduct that I was talking about earlier. And those set of procedures have a lesser standard for process.

So anytime we’re dealing with a allegation of non-harassment discrimination, irrespective of who it’s brought by or against whom it’s brought, we’re dealing with a standard where we’re going to have this base process that I’ll talk about in a minute.

And anytime we have a sex-based harassment matter that involves a student as a party, whether as a complainant or as a respondent, we’re going to have this heightened process. And the heightened process looks a lot more like the process that we have now for sex-based harassment with the hearing and all the bells and whistles, with some important differences, including the fact that we’re not actually required to do the hearing part.

I think the idea behind this, to hear the department explain it, is essentially that most of the cases that get brought under this lower process are either going to be employee cases, in which case the Department says that it wants to provide more flexibility to handle those cases consistent with traditional Title VII processes.

Or they’re going to be discrimination, unequal treatment cases, in which case in a lot of situations, to a point that that Janet has made in our conversations with each other, the respondent is going to be the institution. And so you’re not going to have a adversarial process where it’s going to essentially be, I’m challenging this practice, or I’m challenging this thing that is. And so for those kinds of things, we don’t need live hearings.

And we’re going to have a process that the department’s going to lay out for us that I want to emphasize is prescriptive. This is not a situation where the department is saying, or continuing to say, you have to have a prompt and equitable system for responding to this. This is a system where the department is walking through, and they’re telling us how complaints are going to be made. Who’s going to be able to make the complaints. What the standards for notice are going to be. What the standards for dismissal of those complaints are going to be. How notice is provided, whether you can have an advisor or not. What kind of notice you need for meetings. How information is to be gathered. How outcomes are going to be reached. So the department is telling us how we have to do all of these things and that we have to do all of these things as part of a defined process. But the, what I’ll put in air quotes, the “due process-y” part of that is just at a lower standard than for student processes or what we’re used to seeing now.

The main difference is that when you have a harassment procedure, now we have this idea of essentially this process that mimics the current process. Very strong notice. Presumption of non-responsibility. Notice ahead of time prior to any kind of a meeting. Obligation to provide equal and timely access to evidence.

There are some shortcuts—shortcuts is the wrong word—there are some relaxations in the amount of formal due process that we’re required to provide, and the hearing is one of them. Instead of a hearing, we can now provide a context where a decision maker can ask the party questions in a non-live hearing context in a manner that’s designed to allow that person to evaluate credibility, to allow for the opposing party to submit questions to be asked, almost as if it’s a hearing without that live hearing context.

We have the option of having a live hearing but not having an adversarial questioning model. So you can have a hearing. You can have advisors there. But all the questions are asked by the decision maker in a live setting. Or we can maintain the live hearing, again, with the advisors asking questions. The parties are not permitted to question one another. So we have a range of flexibility there.

My comment on that range of flexibility, which is pure editorializing is we can have a mission-driven educational view of what the best way to handle these matters is. And we can implement that. But when we do that, inevitably we’re going to make some members of our community upset, both inside and outside the university. And they’re going to criticize our response. And the one thing that the Trump era rules did make simpler was they didn’t provide us a lot of flexibility, and so we could disagree with the means, but at least we were able to tell our community, “This is the only way we can handle this.”

This set of regulations is going to introduce a lot of additional challenges in that regard because lots of different constituencies on campus are going to want it done one way or the other, and we’re going to disappoint somebody no matter how we do it. And so institutions need to be prepared for that flexibility, bringing with it that responsibility to communicate but also to disappoint.

Anne Meehan: You highlighted for us some of the processes that I think everyone has been thinking about in their mind. We’ve been so focused on the process for a sexual harassment complaint. But I want to turn to Janet because it sounds like these grievance procedures really are applying to far broader complaints on sex discrimination generally. So what about complaints about unequal playing space, unequal training facilities, unequal practice times, locker rooms? What do we read about what the requirements are for those types of complaints, related specifically to unequal treatment that is not in the sexual harassment vein?

Janet Judge: So we’ve always had an obligation to provide gender equitable athletics participation opportunities, and all that goes along with that. Athletic-related financial aid and all the different treatment areas. 13 areas of review.

What we haven’t had is mandated reporting in the way that we have under these rules. And we haven’t had the express expectation, although it was in the preamble of the 2020 regs, that there should be procedures and policies to address complaints of sex discrimination more broadly, which would also include athletics equity complaints.

We have seen in some prior cases where those complaints did go to Title IX. Title IX coordinators would say in response, “That’s not really under my purview,” and sent some of those complaints back to athletics. These regs make it very clear that this is under the umbrella of the Title IX coordinator, to not only take these complaints in but also to address the complaints. So we will be having findings around concerns around athletic equity.

And just a really quick reminder that includes, it’s a non-exhaustive list, but we’re talking about participation equity, athletics-related financial aid, and then 11 non-exhaustive areas of treatment. Everything from equipment, scheduling, travel, facilities, medical support, publicity, academic support, recruiting, administrative support, housing and dining, and coaching. And you can imagine then the list goes on.

And we have a lot going on in athletics and a lot of decisions that are being made on the fly around how to allocate resources. And many, many schools have significant challenges in the equity space, and this will land some of those challenges absolutely in the purview of Title IX, and they’ll have to make determinations about the equity of facilities, the equity of coaching, resources, or other things that the school will need to remedy in a prompt and effective manner. And I think it is a significant change in the athletics context that will impact the vast majority of schools out there.

Anne Meehan: So I think we have time to try to get through one more topic here before we go to some final comments from our panelists. And I want to ask, I want to get a chance to talk about pregnancy and related conditions. Caroline, can you talk to us just quickly about what the final rule says about our obligations towards pregnant and recently pregnant students?

Caroline Laguerre-Brown: Absolutely. So educational institutions very broadly must not discriminate against an applicant based on their current, potential, or past pregnancy or related conditions throughout the academic experience. So during the admissions process, pregnancy or related conditions should be treated similarly to any other temporary medical condition, ensuring fair treatment without discrimination based on sex. Institutions can’t adopt any policy, practice, or procedure treating students differently based on pregnancy. They must ensure equal access to educational programs and activities without discrimination.

When a student or someone acting on their behalf informs any employee about the student’s pregnancy or related conditions, the employee must promptly provide the Title IX coordinator’s contact information and inform the individual about the coordinator’s role in coordinating actions to prevent sex discrimination and ensure equal access.

We have to make reasonable modifications to policies, practices, or procedure as necessary to prevent sex discrimination and ensure equal access, and these modifications must be done on a case-by-case basis. An individualized assessment, each and every request.

Institutions have to allow students to voluntary access a separate and comparable portion of the educational program or activity, and they also have to permit voluntary leaves of absence to cover medically necessary periods, reinstating that student upon their return.
We also have to provide access to clean, shielded, intrusion-free lactation space other than a bathroom for expressing breast milk or breastfeeding. Institutions must not require supporting documentation unless necessary and reasonable. Examples where documentation is not required include obvious needs, such as the need for a larger uniform or the need for a larger desk or lactation needs

So institutions also have to treat pregnancy-related conditions in the same manner and under the same policies as any other non-pregnancy-related medical condition, and that includes hospital benefits, medical benefits, services, plans, or policies.

And then institutions can’t require pregnant or recently pregnant students to provide certification of physical ability unless it is necessary for participation and required of all students without discrimination. So really does follow the standards set forth in the Pregnancy Discrimination Act broadly, so we’re familiar with these, and many of us have been providing these protections. But it does clarify and provide more detail about what’s required.

Anne Meehan: Patty, one of the things that was in our ACE comment letter, we had a concern about some of the record-keeping requirements in this area in the proposed rule requiring us to keep sensitive personal information related to pregnancy or related conditions experienced by students. Does the final rule make any changes in that area?

Patricia Petrowski: Yes, it does, thanks, Anne. And I think that this is one of ACE’s biggest success stories coming from its comments letter. So under the proposed rule, the section on student pregnancy and the Title IX coordinator’s related obligations, it required the Title IX coordinator not only to document any reasonable modifications for students because of pregnancy and pregnancy-related conditions but also to retain such records for a period of seven years.

And under the final rule the department removed these obligations. And in doing so the department explicitly acknowledged that it received many comments, including concerns about the documentation and retention requirements, that they would violate the privacy rights of students and employees, that there would not be sufficient confidentiality protections regarding who could access these sensitive records, that these obligations would present legal risks for pregnant students and employees, and that it would have a chilling effect on pregnant students or employees seeking support. And the department said it was persuaded by the commenters’ concerns and agreed that the chilling effect outweighed the benefit, and ultimately it removed the requirement, so kudos to ACE for its comments in that regard.

Peter McDonough: Wow! There’s been a lot here over the last 55 minutes. There’s a lot to do by August 1. Wednesday is May 1. I’m sure it feels overwhelming to a lot of folks who have registered here and have been listening

Josh kindly prepared a key provisions outline for us. We’re going to drop that into the chat now. And it’s over four pages or so. It’s a helpful document to just try to wrap your mind around what we’ve been talking about today. You can also find it on ACE’s homepage by using the search feature in the upper righthand corner and typing in Title IX outline 2024. We have a Title IX resource page on our website as well, and it will be added there.

So as we wrap up today, I want to ask each panelist to finish this sentence: Whatever you do, don’t ignore or forget to…what?

Caroline, what?

Caroline Laguerre-Brown: I’d say, as you work back from your August 1 date, to really think through your communication strategy, to make sure that you are reaching all of your key constituents. Socializing the changes, I think, is going to be really important for your community, and these communications are critical. I’d also just add one thing: talk to your Title IX coordinator. Ask them what they need and support them as they go through this process.

Peter McDonough: Patty.

Patricia Petrowski: Yeah, thanks, Pete.

Patricia Petrowski: Caroline outlined the expanded role of the Title IX coordinator in particular, and under these regs, the Title IX coordinator can delegate those responsibilities to various designees. And although compliance for the regs ultimately rests with the Title IX coordinator, there’s no way that they can possibly do this alone. There’s just too much.

And so what I think the Title IX coordinator needs to do in particular is to figure out, okay, what needs to be done and who is going to be responsible for doing it. So whether it’s all of the training obligations that we outlined to all employees, everybody involved in the adjudication procedures, the informal resolution facilitators, whether it’s the pregnancy obligations, assessing barriers to reporting, implementing supportive measures, and how you’re going to handle the appeals of those supportive measures. And ultimately just all the requirements around the grievance procedure. I think it’s just really important to have a game plan for who is going to be responsible for what.

Peter McDonough: Janet.

Janet Judge: Yeah, just building on that, great, great guidance so far. I think the way that Title IX applies in the athletics area in addition to sexual harassment is a very specific and complicated process. Figuring out what procedures are going to be used and who is going to be the person who’s able to evaluate those sorts of claims I think is quite important.

Taking advantage of this really unique opportunity to make sure that Title IX athletic equity is incorporated into the athletic strategic plans of institutions as they move forward. Socializing the fact that this is not just sexual harassment but actually has much broader implications for the institution with the president, senior administration, and even the board, depending on the level of institution involvement in those sorts of things.

And then all the way down to emergency removals and confidentiality and non-retaliation, which are going to have huge impacts in eliminating barriers to reporting in athletics in particular, and how that might play out on individual campuses. I think lots to talk about in athletics, and I think there are a lot of people who are just saying, “Hey, they didn’t address trans athlete participation, so this has nothing to do with sports.” Nothing could be further from the truth.

Peter McDonough: Thank you. Josh.

Joshua Richards: I would just say to remember that the Department of Education’s view on how to comply in these areas is really important, but it’s not the only source of authority. So when you’re thinking about how to comply with these regulations, please be sure to make reference to your state law, to the law in the federal circuit where your institution is. There are a lot of intersecting obligations here that you need to be careful about, not least of all the potential challenge to this regulation that was filed this morning by the Texas attorney general. So keeping abreast of the way that all those obligations intersect I think is really key in figuring out compliance.

Peter McDonough: So I think a takeaway here is it’s going to take a village. This is not about the Title IX coordinator’s got a bigger job today than 11 days ago. There’s going to be a campus-wide expectation and need for collaboration. That’s reflected, I think, in who signed up for this today. We had over 650 registrants, ranging from, of course, Title IX coordinators and student affairs folks. We also have presidents and chancellors. We have human resources folks. We have campus security folks. We have folks from athletics departments. We have folks in campus security. And it is reflective of the need for us all to be paying some attention and for a lot of people to be paying a lot of attention to what needs to be done.

So with that, I want to thank the audience for joining. We all are so appreciative of your interest, concern, and a willingness to dig into this for our institutions. Most certainly, thank you to Anne for leading the panel through this and these wonderful panelists for what they’ve offered. And we all know that doing these presentations, there’s folks behind the scenes at our organizations that make this happen. So Anne and I, in particular, want to thank our colleagues at ACE, who did make this conversation possible and seamless. So with that, have a fine rest of the day, everyone, and good luck!
Speakers
Janet P. Judge
Founder and Partner, Education & Sports Law Group LLC
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Janet P. Judge - Founder and Partner, Education & Sports Law Group LLC  - Speaker
Speaker
Janet P. Judge
Founder and Partner, Education & Sports Law Group LLC
Caroline Laguerre-Brown
Vice Provost for Diversity, Equity, and Community Engagement, The George Washington University
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Caroline Laguerre-Brown - Vice Provost for Diversity, Equity, and Community Engagement, The George Washington University - Speaker
Speaker
Caroline Laguerre-Brown
Vice Provost for Diversity, Equity, and Community Engagement, The George Washington University
Patricia Petrowski
Associate Vice President and Deputy General Counsel, University of Michigan
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Patricia Petrowski - Associate Vice President and Deputy General Counsel, University of Michigan - Speaker
Speaker
Patricia Petrowski
Associate Vice President and Deputy General Counsel, University of Michigan
Joshua W. B. Richards
Partner and Higher Education Practice Co-chair, Saul Ewing LLP
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Joshua W. B. Richards - Partner and Higher Education Practice Co-chair, Saul Ewing LLP - Speaker
Speaker
Joshua W. B. Richards
Partner and Higher Education Practice Co-chair, Saul Ewing LLP
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