Episode 25: “Horrifying” Guidance on International Students; All About the Title IX Final Rule


Hosts Jon Fansmith and Sarah Spreitzer have a lively discussion about the recently issued ICE directive that bans international students from remaining in the United States if their colleges adopt an online-only instruction model for the fall, and speculate on what this means for institutions moving forward. Later, their colleague Anne Meehan and Holland & Knight Senior Counsel Jeff Nolan join them to talk about the Department of Education’s new rule on Title IX and how colleges must handle sexual assault and sexual harassment complaints beginning Aug. 14.

Episode Notes

Here are some of the links and references from this week’s show:

From the introduction:

New ICE Guidance Bans International Students From Online-only Instruction

Statement by ACE President Ted Mitchell on ICE Guidance on International Students

From the Conversation with Jeff Nolan and Anne Meehan:

Comments to the Department of Education on Proposed Title IX Rule

Amicus Brief and Motion to Delay Effective Date of Title IX Regulations

Joint Guidance prepared by SUNY System

First Steps and Decision Points: Preparing for the New Title IX Reality (PDF)
Holland & Knight

Fair, Witness-Centered/Trauma-Informed Training Programs
Holland & Knight

Recorded Webinar: Discussing the Title IX Final Rule
ACE Engage

ACE's Title IX Resource Page


 Read this episode's transcript

Jon Fansmith: Hello, and welcome to dotEDU, the higher education podcast from the American Council on Education. I'm your host, Jon Fansmith, director of government relations here at ACE. And I'm joined by my occasional co-host, Sarah Spreitzer, also a director of government relations here at ACE.

Sarah Spreitzer: Hey Jon.

Jon Fansmith: Hey Sarah, how are you?

Sarah Spreitzer: I mean, pretty good. I thought that this was going to be a slow week with the Senate being out and post July 4th.

Jon Fansmith: And it wasn't?

Sarah Spreitzer: It's been interesting. No, no. We've had a lot of things or at least one big thing happen.

Jon Fansmith: Yeah. I was very happy you were able to make a little time to join us, tear yourself away from international television interviews. But by the time this is a public, I'm sure people have seen your BBC interview, I don't know, dozens of times. I plan on rewatching.

Sarah Spreitzer: I'm sure, I'm sure. But I guess we should say what we're talking about.

Jon Fansmith: That would probably be helpful. It'd be a little less confusing for people. Or we can keep making vague references to the subject. That's always fun on a podcast.

Sarah Spreitzer: That's true. So on Monday when I thought that I was going to have a really slow day, right, on July 6th, around 3:30 PM, the Department of Homeland Security issued guidance for our international students going into the fall term. And as you probably remember, we actually sent a letter asking for guidance to DHS last week because we were working on that...

Jon Fansmith: So thy were replying to our request, right?

Sarah Spreitzer: Obviously. But I don't know if you remember, but when all of our campuses were closing down, they had issued some guidance that gave us a lot of flexibility, or a lot of flexibility for our international students, as campuses were shifting to online learning where, they could either stay in the US or they could go back to their home country. And what we actually found was a lot of our international students chose to stay here. So I don't know if...

Jon Fansmith: Yeah. And a lot of them couldn't go back to their country because of travel restrictions or lacked the means to do so. So yeah.

Sarah Spreitzer: Yeah, and a lot of our institutions kept dorms open, were trying to help the international students that were unable to travel. So I guess we were expecting DHS to kind of issue an extension of that guidance. Maybe we were a little naive to think that that was going to happen. And then on Monday...

Jon Fansmith: Well to be fair... I was going to say other agents, the Department of Education has primarily done just that. They've issued guidance early in the crisis, very quickly, responsively. And they've since extended that a couple of times to give schools the same flexibilities. So not crazy that you were expecting that, but not what happened, right?

Sarah Spreitzer: No. On Monday, the department of Homeland Security basically through Immigration and Customs Enforcement said that if the school is going to be online only for the fall, that international students will need to depart the US and complete their education from their home country. And if the school starts out in-person and pivots to online education because of, I don't know, the global pandemic then those international students would have to immediately depart the US.

Jon Fansmith: And there are no exceptions to that policy, no...?

Sarah Spreitzer: No, actually no exceptions. You know, when we've seen some changes with some of the visa programs due to COVID-19, there's usually an exception for folks who are working on COVID-19 research or working in the medical professions. And we haven't seen any exception with this.

Jon Fansmith: And since schools are making those determinations now, what kind of a timeframe do they have to sort of figure that out and to notify their students? They issued the guidance on Monday?

Sarah Spreitzer: On Monday. So you'd think they'd give us a lot of time to respond, right?

Jon Fansmith: Until September, maybe?

Sarah Spreitzer: Institutions who are going to be online only have until July 15th to inform DHS. So lots of time.

Jon Fansmith: So when this podcast is released. A few days away, basically.

Sarah Spreitzer: Yes. And if institutions are going to be doing a more hybrid model where it's a mixture of online and in-person they have until August 1st.

Jon Fansmith: Oh, so an additional two weeks basically. Tons of time.

Sarah Spreitzer: Yeah. But not a lot of time. And we are hearing a lot of concern, obviously, from our international students. We had a lot of institutions that were kind of already announcing that they were going to be online-only. And so I think that this is causing a lot of panic. And I think now institutions are kind of taking a step back to say, "What do we need to do to make sure that our international students are supported?"

Jon Fansmith: And it's really interesting too, because I was joking with you about all of your interviews, and frankly you have been doing a ton of interviews. But it really reflects what we've heard from institutions, we've heard from other associations, we've heard from the general public. There's a huge amount of interest in this action. And I guess in some ways kind of surprisingly given that there's been numerous actions by this department that are... Or this administration that have been as aggressive or frankly, and maybe in some ways, more harmful to international students, why is everyone... I mean, I'm not downplaying the significance, but why is this one getting such significant attention at this moment?

Sarah Spreitzer: You know, maybe it's because the international students are here and people know them as their neighbors, their friends, sometimes family members. And so maybe it's that. I know when the guidance was issued on Monday, our president, Ted Mitchell, put out a really strong statement, calling the guidance "horrifying." And I think that kind of is really speaking from the heart, that it is horrifying, because it's very worrisome for international students who are under a lot of stress already.

Jon Fansmith: And really, obviously forcing schools to make a decision about how they reopen and what that looks in a very short period of time with these dramatic implications for international students. And I think, and you and I have talked about this a little bit, the president also hosted a session on reopening schools, a round table discussion this week, about the same time this guidance came out. Do you think that was a factor in why the guidance looks like what it looks like?

Sarah Spreitzer: I mean, it could have been, right? Because the president was extremely strong about trying to force schools, K-12 and institutions of higher education, to reopen. And they talked about tying federal funding to whether or not schools were going to reopen and trying to push on governors to force schools to reopen. And so this could be part of that larger policy, or it could just be part of the kind of chaotic immigration policies that we've been seeing come out of this administration.

Jon Fansmith: Yeah. A lot of which have been either overturned by courts or blocked by courts. And obviously that raises a question: with this guidance, is that an option for schools? Is legal action something that's on the table? Obviously it's a very short timeframe to try and organize a legal response, but is that something schools are contemplating?

Sarah Spreitzer: Yeah. So today, July 8th, two days after the guidance came out, we actually saw Harvard and MIT file a suit against the Department of Homeland Security, seeking an injunction on the guidance. And I believe that there are other cases being filed, and we at ACE are supportive of the court case. We'll likely be filing an amicus brief in support of MIT and Harvard's case.

Jon Fansmith: And so hopefully then the court would block the rule from going into effect, that would be the immediate goal, right?

Sarah Spreitzer: Yes. That's the hope. But I think a lot of people are also having conversations with their members of Congress to try and see if there's some pressure that they can bring to bear on Department of Homeland Security really to withdraw this guidance and perhaps extend some of the flexibility that we saw in the spring.

Jon Fansmith: And that's probably the likeliest way to get a change in a policy, because doing something through Congress legislatively, they're not doing a lot of bills and they would have to go to the President's desk for a signature. So some of the options have been put out there, language on appropriations which I followed, language in the national defense authorization act, those will all probably take effect past the deadline. So simply just getting that pressure from members of Congress is really key at this moment, right?

Sarah Spreitzer: Yeah. And I mean, how many legislative days do they have before August recess?

Jon Fansmith: What is it?

Sarah Spreitzer: Like 10? Five?

Jon Fansmith: For people listening who are concerned, and we know that you are, obviously we have information and resources up on our website now to get a little bit more information on the issue. And I think, Sarah, you'd agree with me that reaching out to your representatives, your senators, and your congressmen, would be really helpful to let know that you're concerned about this.

Sarah Spreitzer: Yep. And I think really talking about the impact, the unwelcoming message this sends to international students, and perhaps how many international students you have in the US. Because I think a lot of folks, when they first read this guidance, they just think that it's impacting students who may be outside the US.

Jon Fansmith: All right. Well, something very important to follow up on, and thanks for sharing with everybody. We're going to take a brief break. And then when we come back, we're going to talk about another problematic regulation with a short timeframe for implementation when we are joined by Anne Meehan of ACE, and Jeff Nolan of Holland and Knight, to talk about the Title IX regulations that are pending at the department of education. So join us back in one minute.

Jon Fansmith: And welcome back. We are joined by two excellent guests, two people I've certainly enjoyed talking with, as we got ready for this show. One of them needs no introduction, it's our colleague, Anne Meehan, who is a director of government relations here at ACE and is joining us today. Hi Anne.

Anne Meehan: Hi Jon.

Jon Fansmith: Hey, how are you? Little technical difficulties. As people can tell, we are doing this via Zoom. We are being very socially distant and safe. So no worries. May explain a few technical glitches. Our other guest', who, again, I'm very pleased to have with us, a true expert on these issues, is Jeff Nolan. He's a senior counsel at the law firm of Holland and Knight. He focuses primarily on issues related to colleges and universities there, and he served on ACEs Title IX working group, which actually was responsible for drafting our comments on the proposed Title IX regulation, which will be the subject of our discussion today. And Jeff, I thought for people out there who, like me, maybe lack some of the depth of knowledge you and Anne have on this, could you just start by giving us a little brief history of Title IX and how this new rule in particular came into being?

Jeff Nolan: Sure. Thanks, Jon. And thanks for having me on this podcast. I really do appreciate the opportunity. So Title IX has been around since the seventies as a statute. We saw a lot of activity around 2011 with the Trump... Or the Obama administration's Department of Ed, in basically stepping up requirements for how complainants, people that report they'd been subjected to sexual assault or other misconduct, would be treated in these matters, and requiring what a lot of folks viewed as equal access to the process. But over the years, from 2011 through to 2017-18, there were courts and commentators who sometimes felt like the pendulum had swung too far in that direction to the detriment of respondents, which are folks who have been reported to have engaged in sexual assault or other related misconduct. So 2017 comes along, September, and the Department of Education Secretary Betsy DeVos announces that the department is not going to regulate or put its views on these issues out by guidance, which is what they've been doing in 2011 and 2014 example, for example. Instead, they were going to open a regulation process, a rulemaking process, which they did. They withdrew the 2011 and 2014 guidance that a lot of folks had become used to, and that institutions had changed their policies to comply with, substituted a Q&A document that served in the interim. And then in November of 2018, floated a notice of proposed rulemaking with some pretty dramatic changes that heightened procedures for the protection of respondent rights, so fair due process procedures. And in the view of some, thereby curtailed the access that complainants would have, but also enacted a lot of new substantive requirements to go with those procedural requirements. Over 125,000 comments were submitted, among them ACEs, which were--

Jon Fansmith: 125,000 was a record, I think, for comments on any Department of Education rule making by quite a substantial margin, I believe.

Jeff Nolan: Right. And as a reflection of that, the department was supposed to address those comments in its finalization of the regulation. So in doing that produced a preamble that an unofficial form comprised over 2,000 pages. And then the final triple column form is 500-something pages. Only a few of those pages are regulations. The rest of it is responses to the comments that various people had and various organizations had. So in May of 2020, the regulations were issued in final form on May 6th, the official form on the 19th. And we were given a very short period of time to change our practices, to comport with the new regs. We have to be compliant by August 14th, 2020.

Sarah Spreitzer: Hey Jeff, can I ask a kind of 101 question that I think might be of interest to our viewers who may not be as familiar with Title IX? I know when I started working in the world of higher education advocacy, I thought of Title IX as something that applied to college athletics. So when did that, and I think you talked a little bit about the shift with the Obama administration, but why is Title IX being applied in these cases?

Jeff Nolan: I mean, I'll paraphrase, but the statute is referring to programs that are recipients of federal funding cannot engage in discrimination because of sex against... No person in the United States shall be subjected to discrimination in federally funded programs because of sex. And that's the focus. It traditionally was the way in which women athletes at colleges and universities gained more representation and support for their programs, but it's always been something that prohibited discrimination on the basis of sex. What happened in 2011 was the Department of Education issued guidance that interpreted what it meant to be free of discrimination on the basis of sex. And part of that meant providing the rights to complainants in these cases who, disproportionally in terms of who actually reports the misconduct, are cisgender heterosexual women reporting misconduct, biases, gender heterosexual men. Although that by no means actually represents the reality of what we see, but that's a lot of the reports, at least the majority. So it was deemed that it would not be appropriate, given an environment that prohibits sex-based discrimination, to have complainants be disadvantaged by a process that focused not as much on their ability to participate, but more on respondent... Or more on respondent rights back then. So now the pendulum has swung in another direction and advocates for either side would no doubt say that their approach is more fair, but here we are with the current approach that some will see as leveling the playing field. Some will see as moving the pendulum back the other way. Those Title IX rules around participation by women in college athletics are still very much in play. It's just that there's a lot of additional things that colleges and universities need to be thinking about when addressing what it means to be administering a federally funded program that is free of discrimination on the basis of sex.

Jon Fansmith: And Anne, you coordinated the Title IX working group and identified some of these concerns that we have with the regulation. Could you talk a little bit about, certainly where the concerns we have and institutions have with the rules, the regulation that the department's implementing?

Anne Meehan: Sure. In the end of January, 2019, we submitted our comments on behalf of about 60 higher ed organizations. Jeff was part of our working group, along with a number of other general councils and other higher ed association representatives. This regulatory package is really one, perhaps the most complex regulation in the Department of Education's history. And we had many concerns. Our primary concern is that the rule imposes a highly prescriptive, one-size-fits-all approach, a courtroom-like approach on every college and university in the country, when trying to resolve these sexual assault and sexual harassment cases. And as we said in our comment letter, colleges and universities are not courts and nor should they be. I think the primary example of how the rule attempts to turn colleges and universities into courtrooms is the mandate that every college and university in the country will now be required to have a live hearing with direct cross examination by the party's advisers. So you're seeing a very adversarial type of courtroom proceeding with cross examination of the parties and the witnesses. If parties or witnesses refuse to participate in the cross examination, their statements are excluded. So this raises a lot of concerns. I think the first one is whether it will reduce the willingness of some survivors to come forward and actually pursue their claims through the campus disciplinary process, whether this could be traumatic to them to come and try to talk under those circumstances. And then I think an equal concern is just equity issues that are raised when one party can afford a high-powered legal pitbull, and another party can not. Similarly, some students may present very well. They may be well-spoken. They may have parents who are attorneys who practice with them being grilled under cross examination. And other students may not fare so well, they may not present well, regardless of the merits of their claim. So those are some of the concerns. We had many others. We will certainly post our ACE comment letter as a resource for folks who are interested in more details. The other big issue that we raised in our comment letter was at the end, we made a plea for substantial time to be able to properly implement this rule. This was of course all before COVID-19 hit. And so now I think that the concerns about the August 14th effective date, which gives schools just under 90 days to implement a rule of this complexity and magnitude and significance on their campuses while their campuses are shut down, to properly implement this rule we really need to have different... It's going to be an all hands on deck approach across all different parts of campus. People need to be able to communicate, to consult. They need to consult with students, among the many stakeholders, who have an interest in how these rules are going to be implemented on their campus. And obviously in the COVID-19 situation, this is going to be very difficult. So those are some of our primary concerns.

Jon Fansmith: Can I ask, Anne, and I don't want to make you speculate here, but obviously you pointed out it's... And Jeff pointed out, it's over 500 pages when you get down to sort of the shortest version of the regulation. They gave us less than 90 days to implement this and to come into compliance. What is the reason for that? I mean, it would seem this is certainly not something they've done with other regulations. They've given generally pretty normal notice and time to comply. So, you know, why? Why such a short period of time? They have to know that would be a challenge, especially in this climate,

Sarah Spreitzer: Except I would say there are other things that they're making us implement during the COVID-19 crisis, not just Title IX.

Jon Fansmith: Perhaps not to this level though, I think is the key thing.

Sarah Spreitzer: No, not like 2,000 pages of regulations. This is pretty egregious.

Anne Meehan: It's a good question. It is one that requires a fair amount of speculation to try to answer, but I will say, unfortunately Title IX, most higher ed regulations are subject to a provision in the Higher Education Act called the master calendar. And this basically ensures that schools have eight months from the time that a rule is finalized before, at the earliest, they are required to implement. But those provisions do not apply to Title IX because Title IX is not part of the Higher Education Act. So in that sense, the department is able to set whatever timeframe they would like. Typically that's 30 or 60 days. Here, it's closer to 90, but I would say that still is very... It's just woefully insufficient. One reason may be, I think that there was a strong desire on the part of the Trump administration to have the rule finalized as quickly as possible, and to have it finalized before the start of the school year. We don't know how the election will turn out and I think that they wanted to make sure that the final rule took effect. Not only that it was finalized, but that it took effect while they were still in office. So that's, I think, another reason why they may have given a short timeframe. I will point out though that the department took over three years developing this rule from start to finish. So there's clearly a lack of balance between the amount of time it took to consult with parties, to issue an MPRM, to review the comments on the MPRM, and issue their final rule. And then on the backend, unfortunately, schools are only given 90 days in this pandemic context.

Jon Fansmith: Yeah. Well, I'll leave that there. I think I have some thoughts and Sarah and I certainly have tipped our hands a little bit on that. But on the same theme, this is obviously a very complicated rule. Institutions have to be in compliance in a very short period of time. Jeff and Anne, I'll throw it out to either one of you, what should... So the audience of our podcast is college and university leaders. What should they be doing right now? What's the key things they need to know and what should they be doing?

Jeff Nolan: So I think, if I can take it, Anne. They've got to be engaging with the Title IX folks on their campus, with their council who are working on these issues, because there are decisions that need to be made that are large-scale ethical and risk management decisions that institutions have to finalize before your Title IX folks and council can turn to the drafting of policies. So the department has very explicitly narrowed the definition of sexual harassment. It includes what we would call quid pro quo, so conditioning the provision of an aid, benefit, or service on someone's participation in unwelcome sexual conduct, some kind of an exchange, that is sexual harassment. Sexual assault, as defined in the Cleary Act, that is sexual harassment, as is domestic violence, dating violence, and sex based stalking. So those things are clearly sexual harassment, and that's not new for us. That's something that we've been addressing through the Cleary Act and through our own policies for some years. But they changed the definition for unwelcome sexual conduct, made it narrower to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to an education program or activity, including their employment, at the institution. That's a narrower piece. Plus they're only focusing on an education or program of the... Sorry, a program or activity of the institution, not on things that happen outside of those programs, not on things that happen outside of the United States, because the language of the statute refers to a person in the United States.

Jon Fansmith: And sorry, can I ask...

Sarah Spreitzer: Sure, go ahead.

Jon Fansmith: Outside of the institution, does that mean off the physical premises of the institution? So an off-campus residence or something like that, is that covered?

Jeff Nolan: An off-campus residence would be outside of the definition. You could have an off-campus event that's controlled by context and control over the respondent, the person who is reported to have engaged in the misconduct, that could be part of the program or activity that's covered. But typically on campus is going to be covered if it fits within one of the substantive definitions, in the United States and so on, you could have some off-campus stuff that is covered as well. But a decision that decision makers are going to have to help us with is, are we going to continue to prohibit sexual misconduct that happens outside of a program or activity, even though the federal government is saying we don't have to? Are we going to continue to prohibit sexual misconduct in a study abroad context, even though the Department of Education is saying we don't have to? You're taking some risk to do that in different directions or not to do that. That's a risk management decision and an ethical decision that we're going to need leaders to engage with and help us understand how the institution wants us to approach that. Most of my clients that I'm working with on these policies around the country are saying to their communities, "We are going to continue to prohibit all of the same conduct that we prohibited before, but we now need to do it through different procedures. One for Title IX sexual misconduct. We may choose to address other things through the same procedure, or we may adopt a different one." That's another strategic question that'll have to be decided by leaders. Other things that leaders are going to have to help us decide is, who is going to be required to report sexual misconduct to the Title IX coordinator so it can be addressed? Used to be a very broad swath of what we would call responsible employees. Now, unless you have a state law, as in some places I practice, Texas and in other places, it says responsible employees must come forward. It's really a small group that must absolutely respond. So we need leadership to help us make the decision of, are we going to continue to require a broad group to report to us? Or are we going to narrow that down?

Jon Fansmith: Can I just clarify? So when you're talking about leaders deciding, that would be implementing institutional codes of conduct that are perhaps more expansive than what the department's regulations would require, and there's nothing in the regulations that necessarily preclude a campus from going beyond what the regulations require. Right? Am I understanding?

Jeff Nolan: That's right. You're absolutely right. And the preamble goes to great lengths. And again, the regs themselves are a handful of pages. It's the preamble that goes on for 1900 plus or almost 2000, or over 2000 for one version, 500 something for the other. The regs themselves are very complex in terms of the requirements that they're going to impose for live hearings and so on, as Anne talked about. But it's the preamble that talks about these issues and they say over and over again in the preamble, "Just because we're saying you must address our relatively narrow definition of Title IX sexual harassment in certain ways, doesn't mean you can't continue to address other things however you like, because we're not going to take a position on that." But we need leaders to engage with us to do that initial decisionmaking so that we can then draft the policies accordingly.

Sarah Spreitzer: And then Jeff, you talked a bit about the new definition, right? What does that mean for other definitions that we might use across campus? Like say Title VII with our employees, or we know that there's a new definition of sexual harassment that's being used by some of the federal science agencies in regards to actions that the PIs may be taking. So how does an institution handle that with multiple definitions of sexual harassment?

Jeff Nolan: The Title VII issue, the employment law issue is one of the most complicated, because ACE and others pushed back hard and said, "We have been addressing sexual harassment in the workplace for decades, and respectfully, the Department of Education has not been involved in those efforts. The Federal Equal Employment Opportunity Commission has. And we know what their perspective is. We know how to address those issues. You do not need to be involved." The department, nonetheless, because it had the technical authority to regulate in this area, decided to go ahead and do so. So the current status is, all of these rules like for example, live hearings with cross examination by advisers that the institution has to provide? That needs to be provided to employees as well as students in cases it falls within the Title IX definitions, even if you have collective bargaining agreements or other handbooks, or what have you that provide for other rules. So with respect to the Title IX issues, we are expected to address unwelcome conduct of a sexual nature or similar language, lower level conduct before it escalates into something that creates an unlawful, hostile work environment. As employers, we can continue to do that, but it's going to bump up against Title IX at the point where it becomes something more extreme and then we can't use our customary procedures for doing it. It's going to be a challenge. And particularly, between now and August 14th, to think that we're going to change collective bargaining agreements or faculty handbooks, it's not realistic. Something is going to have to give, and frankly, it's probably going to have to be that we'll get there when we get there, trying our very best in good faith.

Sarah Spreitzer: Well, and then one of the issues that I don't think you've touched on yet is, and thinking about the different parts of campus that are going to be impacted, is the new requirements around standard of evidence. Can you speak a bit to that and decisions that campuses are going to have to make?

Jeff Nolan: Sure. So again, this is a question for leadership. I think either you can apply a preponderance of the evidence standard, which is just more likely than not, or a clear and convincing standard, which varies depending on who you're speaking to, what state you're standing in. Whatever you pick, you've got to apply the same standard for all sexual harassment cases, regardless of the identity of the respondent. So that becomes very complicated if you have say a tenure revocation procedure that provides for a clear and convincing evidence standard, which some do if you're going to apply something different in other parts of your process, like determining responsibility. I think you can do it, but there's a lot of work that needs to be done to very carefully frame the issues as related to preponderance is applied to all student and faculty matters regarding responsibility. The tenure revocation process is part of the sanctions process. I think it can be done, but it's something you need to talk closely with counsel about and make sure that your procedures and language support that. Or the more cautious route is to make sure that you're applying the same standards across the board in sexual harassment cases. That frankly is the easier route. Practically with the exception of faculty procedures around clear and convincing and tenure revocation, I don't think that the standard of evidence is going to pose a major problem. Everyone went to preponderance because the department previously required it. The question is, is anyone going to go back to clear and convincing? Probably not, unless they have to do something specific because they're dealing with faculty issues that become intractable.

Sarah Spreitzer: Great. So with all these complications, where should an institution kind of start if they're looking at what do they do before August 14th?

Jeff Nolan: So we've talked about some decision points. What standard of evidence you're going to... Are you going to address everything you used to? Are you going to have one or two procedures? What are you going to do with responsible employees? Those are your first decision points. I think those need to be addressed at a high level, based on the advice of your counsel and your Title IX folks. Once those decisions are made, then I've got a range of different approaches that institutions are taking, that I'm working with. Some will have the kind of buy-in and the Zoom meetings around bringing stakeholders to the table to discuss these issues. Some are having to move more quickly and are not able to do that, which is an unfortunate result of this time pressure that we're under and are drafting first, once they have the answer to those decision points. And then once you've got that in place and you're working on policy and frankly there's not enough hours in the day for me and others in this area between now and the 14th of August, you have to be thinking about training. Because the department requires training of investigators and decision makers, Title IX coordinators, facilitators of informal resolution processes. And that has to be done not by August 14th, but it should be done before those folks actually engage in working on a case. So working on a new case in the post August 14th era, I think the folks should receive the training about what sorts of things the regulations require. So those are probably the biggest things that we need to do. Probably the most difficult thing is going to be setting up a hearing-based process in environments where that has not previously been used. That's going to be very difficult for schools to do, particularly smaller ones or schools that are in areas of the country where you don't have the resources of many available external investigators let's say, or hearing officers, that kind of thing. That's going to be a challenge, no two ways about it.

Jon Fansmith: And so as a schools are hearing this, as they're thinking about all the things on their plate, I know both ACE and some of our colleague associations and Jeff, obviously your firm, have prepared some resources that college and university presidents and staff can take a look at. Can you just briefly highlight some that may be of the most interest? And just to let folks listening know, all of these resources when they're mentioned, we add them to our show page. So you can find them there after the episode as well.

Jeff Nolan: Sure. Some things I know about, there's joint guidance prepared by the SUNY system. They coordinated a bunch of folks, I would say 50 or so higher ed attorneys. I was in the group as many other folks were. That's a narrative document that you can review that summarizes the regulations and some of the background behind it. There are posted webinars that are posted on my website that, you Google me and so on, you'll find them. And they summarize the regulations at a high level. There's white paper type documents as well, more into issues related to training that we're going to have to do. I just did a program this morning for an institution, and its colleague institutions, on a particular type of training around trauma-informed practices. Fortunately, it's something that is a promising practice that the department allowed to continue. Some commentators felt it might not be fair to respondents, but the department responded that it can be done correctly in a way that's appropriate and fair to all parties. There's a white paper on that topic on my website that was cited seven or eight times, eight times, I think, in the preamble. So it is something that we can do if we do right. And Anne, I know there's a webinar that's posted on ACE Engage as well, that is going to be background I believe.

Anne Meehan: Yes, we will make available in the links, the resources that Jeff mentioned. Also the ACE webinar that we hosted from last, I guess it was May, May 12th. And also we have an ACE Title IX resource page, if you would like to take a deeper dive into any of these things and we will provide the link for that as well.

Jon Fansmith:

And all those resources and others, as I mentioned, will be up on the website after the episode is recorded. I know that there is a wealth of information having talked with both of you. There is a great range of details and other things that we could go into that I'm sure would be of interest to folks, but we are running right up against our time limit and I want to be considerate of your times. And especially want to thank both of you for making the time today. I know Sarah is better versed in these issues than I am. So I appreciate you explaining in very clear and concise terms exactly the challenge colleges and universities are facing as they come into compliance. So thanks again for taking time. Thanks for joining us today. Really appreciate it. And you can find the ACE's podcast at our website at www.acenet.edu/podcast. And you can subscribe to this podcast on Stitcher, Apple Podcast, or wherever you get your podcasts. I know there's lots of different places you can. I want to thank again, Jeff and Anne for joining us, adding so much information on what is obviously a very complicated, challenging subject. And thank you all for joining us today in listening. I hope you enjoyed the time and learned something, and be safe. Stay well. We'll talk to you soon again. Bye.

About the Podcast

​Each episode of dotEDU presents a deep dive into a major issue impacting college campuses and students across the country. Hosts from ACE are joined by guest experts to lead you through thought-provoking conversations on topics such as campus free speech, diversity in admissions, college costs and affordability, and more. Find all episodes of the podcast at the dotEDU page.

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