Title IX Proposed Regulations Sandra E. Hodgin, phd. Assistant Director of title ix compliance & programs Sandra.Hodgin@colostate.edu

Title IX, Education Amendment of 1972 “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Proposed Title IX Regulations Overview of Title IX Regulations Current Title IX Regulations (proposed to be amended) Proposed Title IX Regulations (2019 proposed sections) 34 CFR 106.3 (Remedial action by DOE/OCR; campus responsibility) 34 CFR 106.6 (Governing laws and obligations) 34 CFR 106.8(a) (TIX coordinator designee) – 2001 Revised Sex. Harassment Guidance 34 CFR 106.8(b) (grievance procedures adopted and published) - 2001 Revised Sex. Harassment Guidance 34 CFR 106.9 (dissemination of policy) 34 CFR 106.12 (religious exemption) 106.44 & 106.45: removes remedial action by DOE (OCR); Clarifies campus responsibility re: deliberate indifference (1998- Gebser v. Lago Vista Indep. S.D). Adds to include statement on fair treatment of Respondent and Complainant. 3. 106.44 & 106.8: Identifies TIX Coordinator and adds clear role aspects (e.g., implement support). 4. 106.44, 106.45, & 106.8: Specifies “basic requirements” and detail for grievance procedures. Mandates “live hearings” and cross-examination by respondent’s advisor. 5. 106.8: Describes updated policy dissemination (e.g., website). Both provide info. on campus responsibility for Title IX compliance. Both address sexual discrimination to include sexual harassment and sexual assault.  

MOST SIGNIFICANT CHANGES Proposed Regulation Sections 106.44 & 106.45 106.44: Institutional Response To Sexual Harassment Must respond in a manner that is not deliberately indifferent. (Previously not in policy, but is the basis for supreme Court cases that led to Title IX mandates for institutional response.) If Title IX Coordinator responds to complaints and files a formal complaint then campus is not deliberately indifferent. (Previously campuses could be help liable for lack of response.) Emergency removals can happen after a campus does a risk assessment, and the must provide a respondent with notice and an opportunity for the respondent to challenge the removal. (NEW) Non-student respondents can be placed on administrative leave during an investigation. (NEW) Defines sexual harassment to include sexual assault. (Previously described as sexual violence.) Reports should be made to Title IX Coordinator or authority with “actual knowledge”. Defines Actual Knowledge: is met when a Title IX Coordinator or any official that has authority to institute corrective measures is told about an incident. Disqualifies all other employees from responsibility of having authority over a situation to correct it. Employees can sill have a responsibility to report. (Previously Responsible Employees could be held liable.)

MOST SIGNIFICANT CHANGES Proposed Regulation Sections 106.44 & 106.45 106.45: Grievance Procedures Jurisdiction only on sexual harassment cases that are “severe, pervasive, and objectively offensive that it effectively denies a person equal access to [an institution’s] education program or activity”. (Previously all sexual harassment was applicable as part of campus responsibility.) Must treat complainants and respondents equitably: requires a statement within the policy regarding to not discriminate through treatment. (Previously not described.) Describes “reasonable timeframes” be provided for investigations, hearings, and appeals. (NEW) Mandates procedures include possible sanctions, remedies, and supportive measures. (Previously not as clearly mandated.) Notice of Allegations to both parties specified. (Previously not as clearly mandated.) Presumption of Innocence for Respondent to be described in policies. (NEW) Standard of Proof Choice between Clear & Convincing, and Preponderance of the Evidence. (Previously Preponderance of the Evidence = lower bar to find guilt.) Access to evidence for both parties at all points (investigation and hearing). (NEW)

MOST SIGNIFICANT CHANGES Proposed Regulation Sections 106.44 & 106.45 (continued) 106.45: Grievance Procedures Formal Complaint: mandatory by complainant to move forward with grievance procedures. Live Hearings: Hearings now required by all campuses. (Previously campuses could choose type of hearing if at all in place.) Cross examination: Through a parties advisor, cross examinations can take place of other party and witnesses. (Previously campuses could choose type of cross examination, if done at all.) Parties can request to be in another room with technology helping to have hearing. If a party has no advisor the institution must provide one. Advisors can be attorneys or anyone a party chooses. Appeals: are not as strictly mandated as a procedure as other areas discussed and listed more as an option. (Previously, not required either.) Informal Resolution: now cases able to offer mediation for all cases, including sexual assault. (Previously, sexual assault cases were not allowed to use mediation.) Cannot do Informal Process and then ask to do Formal Process.

Thank You!