If you’ve tried to read the college’s new policies and procedures for addressing sexual offenses, we can’t blame you if it’s been a challenge to understand some of their complexity. This came to be based on the 2020 Title IX Regulations that took effect on August 14, 2020. Back in the summer of 2020, UNA created this handout with FAQs about the new regulations. This brief guide is intended to help explain the changes and make the new resolution process more transparent to you. As of November 2020, there is also a chance that more changes are coming to Title IX. After we explain what the current landscape of Title IX is after August 2020, we will briefly prepare you for some of the possible changes that may be coming next in the "What's Next?" section below! 

Title IX of the Education Amendments Act has been prohibiting sex-based discrimination from education program and activities receiving federal funding since 1972.  In that way, Title IX is nothing new. However, the implementation of Title IX as it looks today is much more recent.

Back in 2011, the President Obama’s U.S. Department of Education (ED) perceived that colleges needed to be more victim-centered in addressing sexual violence and should have more transparent and accessible policies and procedures for addressing complaints. At the instigation of then Vice-President Joe Biden, ED issued a set of guidelines for colleges under Title IX in what is known as the Dear Colleague Letter. That letter resulted in investigation-centered approaches that were trauma-informed, confidential, and relatively informal. Almost immediately, accused students and employees began to sue colleges for violations of their due process rights.

By 2017, ED under the Trump administration had taken a different perspective and withdrew the 2011 Dear Colleague Letter while also announcing that new Title IX regulations were needed to better safeguard the due process rights of accused individuals. The regulatory process took two years, with new regulations published in May 2020 that took effect on August 14, 2020.

The 2020 Title IX regulations required all colleges to revise or rewrite their policies and procedures for addressing sex offenses, including sexual harassment, sexual assault, domestic violence, dating violence, and stalking. UNA worked diligently to ensure its newly revised policies and procedures are not only compliant with these regulations; but also, consistent with our UNA values.

This was not an easy process. The regulations include fifteen pages of new “laws,” and more than 2,000 pages of explanation of what those “laws” mean. They are complex and legalistic. Just trying to explain parts of this new process to you here requires a document that is multiple pages long. The bottom line is that UNA’s policies are not all that different than before – the same types of offenses are still against UNA – but the procedures, and some of the nuance, for resolution of complaints are substantially changed.

To summarize:

• Title IX protects students and employees who are impacted by sexual harassment, sexual assault, domestic violence, dating violence, and stalking. When these behaviors occur, and a formal complaint is made, a college is obligated to address and remedy them and ensure that no one is denied effective access to the educational program of the college.
• Colleges have jurisdiction requirements that they must follow to determine whether a complaint falls within Title IX or is to be addressed within other college policies and procedures.
• Complainants are well-protected by the regulations in terms of supportive measures that are offered by colleges to try to address the impact of sex offenses.
• Complainants and respondents are each entitled to an advisor of their choosing (who can be an attorney) throughout the resolution process, and the college can provide this advisor to each party, if needed.
• The regulations have now created options for informal resolution that were discouraged by the Dear Colleague Letter.
• To protect the due process rights of respondents, colleges are required to use a formal grievance process for certain types of allegations. That formal process includes an investigation, a live hearing, questioning of the parties through their advisors, a determination by an objective decision-maker, and an appeal.

As a result of these changes, UNA has worked hard to balance the rights of all parties, and to create a process that is fair, transparent, and compliant. However, in some ways, this is not an ideal process. We acknowledge that it is not particularly user-friendly. This may not have been the policy and process that we would have created, if we had the flexibility to do so; however, the government has intervened and we must comply.

To offset the more complex aspects of the process, UNA is training a pool of advisors to help parties through every step of the process. They can guide and advise all parties on how to best protect your rights to educational access. We’ve also created guides like this, and the flowchart, to help make the process more accessible and understandable.

One last key point to understand is that Title IX isn’t the only governing law here. The college must also comply with a federal law called the Violence Against Women Act (VAWA), Section 304, which also protects college community members when they experience sex offenses. Additionally, at times, we also have to comply with child abuse reporting laws and the federal Clery Act; however, those are not the purpose of this guide.

When the college receives a complaint, there are four possibilities that you should be aware of because they govern how the college will proceed:

1. The complaint falls within Title IX AND is covered by the 2020 Title IX regulations
2. The complaint falls within Title IX but is not covered by the 2020 Title IX regulations
3. The complaint falls within VAWA Section 304[1]
4. The complaint does not fall within Title IX

Depending on which of these four possibilities the complaint falls within, there are certain aspects of the various laws that may or must apply, accordingly. Some schools have adopted alternate processes to resolve complaints that do not fall under the 2020 Title IX Regulations and will often refer to those processes “Process A” and “Process B.” Here at UNA, we have always treated allegations of sexual misconduct, including sexual harassment, equally and they have always been handled under one set of processes. Therefore, we decided to continue this even after the 2020 Title IX Regulations. There are a few technical differences that may occur, but generally speaking, if someone is accused of sexual exploitation (a type of sexual misconduct that is covered under UNA’s policy, but no longer falls within Title IX according to the 2020 Title IX Regulations) or sexual assault (a type of sexual harassment that falls within Title IX and is covered by the 2020 Title IX Regulations), the processes are generally the same. Likewise, whether a sexual assault occurs on-campus and is part of the 2020 Title IX Regulations jurisdictional requirements or a sexual assault involving our students occurs at apartments right off-campus, the processes are generally the same. That just made sense, to us.

Let’s take each in turn to better explain the different options and how they might work.

1. The complaint falls within Title IX AND is covered by the 2020 Title IX regulations

The complaint will fall in this category when it alleges sexual harassment, sexual assault, domestic violence, dating violence, and/or stalking (as defined by college policy, if proven) AND the conduct:

• Happened in the United States;
• Occurred where the college controls the context of the incident (a college program or property, typically);
• The school has jurisdiction over the respondent as a student or employee; and
• Happened to a complainant who at the time of the complaint was participating in or attempting to participate in the college’s educational program.

These jurisdictional requirements are spelled out by the 2020 Title IX regulations and are rigid. If any of these requirements fails to be met, the college is required to “technically” dismiss the complaint. More in a bit on what happens if there is a technical dismissal, because that is not the end of the process.

If these requirements are met, the resolution process will be the Formal Grievance Process described UNA’s Sexual Misconduct Policy.

2. The complaint falls within Title IX but is not covered by the 2020 Title IX regulations

The complaint will fall in this category if it does not involve sexual harassment or sexual misconduct, but the allegations pertain to sex discrimination more broadly, such as:

• disparate treatment, e.g., discrimination against a pregnant student; denial of access to a program; inequitable funding on the basis of sex);

When a Formal Complaint is filed under Title IX, the regulations require these types of allegations to be technically dismissed. The college will then address them through a different process. These types of complaints fall under Title IX, but outside the Sexual Misconduct Policy. 

3. The complaint falls within VAWA Section 304 (this could be an overlay with 1 or 2, above, or a stand-alone status)

The complaint will fall in this category if it is not within the Title IX jurisdiction above (like as in number 4, below), but still involves sexual violence, dating violence, domestic violence, or stalking. In this case, the college must address the conduct under procedures that comply with VAWA Section 304. Unless a VAWA case involves stalking that is not on the basis of sex, these cases will be processed through the Sexual Misconduct Policy.

4. The complaint does not fall within Title IX

Finally, where the complaint falls does not within Title IX, but still is considered sexual misconduct, the college is not required by law to act on the complaint. However, the college will act with discretionary jurisdiction, meaning that it still thinks it is important to address the allegations even if law does not require it.

As previous discussed, some allegations may come into the Office of Title IX but no longer fall within the four corners of Title IX as interpreted by these 2020 Title IX Regulations. They may include things like

• Sexual harassment that does not occur within the U.S. or within the school’s education program and activity;
• sexual exploitation;
• forms of sexual orientation discrimination;
• forms of gender identity/expression discrimination [based on sex stereotypes].

At UNA, these types of conduct have always been a violation of University policy and continue to do so. Therefore, in most circumstances, these types of offenses will also be subject to the formal grievance process, even though they do not fall under “Title IX.”

The last part of jurisdiction to understand is dismissal. As noted above, the college is mandated to and must dismiss a formal complaint or any allegations therein if, at any time during the formal investigation or hearing, it is determined that:

• The conduct alleged in the formal complaint would not constitute sexual harassment, sexual assault, dating violence, domestic violence or stalking as defined in policy, even if proved; and/or
• The conduct did not occur in an educational program or activity controlled by the school (including buildings or property controlled by recognized student organizations), and/or the school does not have control of the respondent; and/or
• The conduct did not occur against a person in the United States; and/or
• At the time of filing a formal complaint, a complainant was not participating in or attempting to participate in the education program or activity of the recipient.[2]

Then there are three permissive dismissal provisions. The college may dismiss a formal complaint or any allegations therein if, at any time during the investigation or hearing: 

• A complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein; or
• The respondent is no longer enrolled in or employed by the recipient; or 
• Specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.

Upon any dismissal, the college will send written notice of the dismissal and the rationale for doing so simultaneously to the parties. This dismissal decision is appealable by any party under the college’s procedures for appeal. The effect of a dismissal (permissive or mandated) is either that the complaint is done, or that the school reinstates it. Now, if you’re understanding thus far, you may be asking… but does that mean it would be “dismissed” and then reinstated to the exact same process? And the answer is yes. Remember, we did not create these new regulations.

Even if a complaint is done, supportive measures are still made available to the parties. Understanding these mechanisms can be helpful, but we know they’re complex, so don’t hesitate to call on the Title IX Coordinator for further explanation.

College-provided advisors may be called on to help determine if a someone wants a complaint to be reinstated, or even under what process it should be filed in the first place. Where dismissed, advisors will be able to advise the parties on whether they want to appeal and what the effect of dismissal/reinstatement may be.

_{[1] This could be an overlay with 1 or 2, above, or a stand-alone status.
[2] Unless this complaint is one initiated by the Title IX Coordinator themselves because of some serious risk to the campus community.}

We’ll conclude with a short section about live hearings. The live hearing component has received a lot of attention, so we wanted to take a moment to clarify some important details and hope they will help anyone making a decision about whether to file a formal Title IX complaint. The college has designed the process to be as humane and non-adversarial as possible, while assuring fairness to all participants.

• There are informal resolution options offered by UNA. UNA cannot and will not force or coerce any student or employee into an informal resolution. Although it is true that a formal complaint must first be filed, that does not mean a live hearing must occur. A formal complaint can also lead to an informal resolution process and should an informal resolution fail, a formal grievance process is always still available.
• Live hearings do not have to happen with all parties in the same room. Any or all parties can opt for virtual participation at any time. Even with a virtual hearing, all participants will be able to see and hear each other throughout the hearing.
• Although there is “cross-examination” during the hearing, it may not work the way you think. The parties cannot question each other directly, at all. The advisors to the parties ask the questions, and before they do, the Chair of the hearing rules on each question first. So, there is really only indirect questioning, not “cross-examination” like you might find in a courtroom.
• Even though advisors get to ask questions of parties and witnesses, you may find that most of the questions are posed by the neutral decision-makers. Once those questions are posed, they cannot be asked again by the advisors, so in most cases, the questions come to the parties from the decision-makers, not from the other party’s advisor.
• A written decision is issued, based on the preponderance of the evidence standard (whether a policy violation is more likely than not), and offers a clear rationale for the decision.
• The decision is appealable by all parties.
• The hearing process is kept confidential by the college.

UNA has designed the process to be as humane and non-adversarial as possible, while meeting our obligations under this new law and assuring fairness to all participants. For questions or confidential discussion about any options and college processes, please contact our Interim Title IX Coordinator, Dr. KC White, at titleix@fotodoo.com or 256-765-4223. 

In January 2021, Joe Biden was inaugurated as the 46th President of the United States. President Biden nominated Miguel Cardona to be the next Secretary of the Department of Education (ED) and on March 1, 2021 Secretary Cardona was confirmed by the U.S. Senate. An ED led by Miguel Cardona is likely to be drastically different than the ED led by Secretary Betsy Devos under President Trump. Catherine Llahamon, the former assistant secretary for civil rights at the Department of Education under President Obama, has been tapped to return to her old position and is currently going through the confirmation process. T

So, what does that mean for Title IX? The long and short of it is that change is coming, but what exactly that change will be, or perhaps most importantly, when the change is coming is unclear.

President Biden cannot simply “undo” the 2020 Title IX regulations with a snap of a finger. Therefore, any change that is coming will likely take some time. For starters, most of these changes would stem from the Department of Education and so a new Education Secretary will need to be nominated and confirmed through the Senate. Even after an Education Secretary is confirmed, it may take ED a while to build a team and work through their priorities. Then, if they want to truly “undo” the 2020 Regulations, it is likely that they will have to go through the Rulemaking Process that took President Trump’s ED a year and a half to complete. Plus, this would be after the new ED decides what they want the Title IX process to look like which could also take some time. As of summer 2021, ED announced that they expect to release a new proposed rule in May 2022. As such, it is unlikely that Title IX will see substantial changes prior to then.

On the other hand, another option might be for Congress to draft and pass legislation that alters Title IX. This is always a possibility, but would require a consensus from the House and the Senate about what Title IX should look like. Until then, we will continue anticipating changes in May 2022, at the earliest. 

All that to say, Title IX just had some big change. Big changes are also still coming. They may not be coming today, but they are coming. Changes could also come from the state level. As the government changes the regulations, UNA will continue to stay on top of these new developments, with the help of experts and other professionals in the field, will continue to do all that we can to support our students and community, so that everyone is not only safe, but successful.