The 2020 Title IX final regulations were a complex and novel addition to the education landscape. Educational institutions worked quickly–during a global pandemic–to bring their policies and procedures into compliance with the new regulations.
In retrospect, the 2020-2021 year provided several lessons that institutions can use to limit their exposure to liability under Title IX:
- Procedure is paramount.
One of the most important Title IX lessons is that your Title IX policy can “make or break” your institution. A well-written policy is essential to avoiding the practical nightmare of staff not knowing how to appropriately respond to Title IX issues. The 2020 regulations are so detailed that a thorough policy is necessary to ensure compliance with federal regulations.
Plus, recent Title IX litigation suggests that courts will take a look at an institution’s policy in a Title IX case. A strong policy can be a strong line of defense against discrimination claims.
- The investigation is an important part of the process.
The 2020 regulations require institutions to launch an investigation into the allegations of a formal complaint. Recent federal case law suggests that an impartial and appropriate investigation process can be used to show that an institution’s policies and actions are not discriminatory. Thus, a proper investigation, coupled with a strong policy, is fundamental to limiting liability under Title IX. Appropriate investigations should, of course, comply with the requirements outlined in the regulations and be conducted by unbiased, trained investigators.
- Title IX training should extend beyond the Title IX office.
While the Title IX regulations outline the individuals who are required to receive training, institutions should not stop at these required individuals. High-level administrators and influencers at the institution should certainly receive training on the institution’s Title IX policy so that these individuals can be prepared to respond in an appropriate manner if they become aware of any discriminatory or inappropriate conduct. Ideally, everyone on a campus covered by Title IX should know what to do and how to respond if they witness or experience conduct that violates the institution’s Title IX policy.
- Consider the pandemic’s effect on the accessibility of resources.
A recent report from the Office of Civil Rights found that, in early 2021, students on some campuses expressed concerns that the COVID-19 pandemic was making it more difficult to access supportive resources. This is cause for grave concern–not just because institutions are required to offer supportive measures in response to sexual harassment complaints–but also for the well-being of students. Unfortunately, the pandemic is becoming a fact of life. It is important for students to have access to services such as counseling and other supportive services in spite of the challenges that the pandemic presents. Therefore, educational institutions should consider options that make supportive resources accessible to students who are impacted by the pandemic while also keeping staff safe.
- Litigation is alive and well.
Despite the pandemic and the newness of the Title IX regulations, 2021 saw a number of Title IX lawsuits filed and investigations launched against educational institutions. The key to limiting an institution’s liability is to implement and enforce a well-drafted Title IX policy. When allegations arise, the institution must respond promptly and take appropriate action, as outlined in the regulations. In real time, taking the appropriate response in a delicate situation can be challenging and raise questions. When in doubt, adherence to your Title IX compliant policy and the federal regulations is the best response.