Explanation of the DoE's New Title IX Regulations

Terms to Know

These are common terms used regarding Title IX. By reading the definitions, you will have a better understanding of what the regulations mean. 

In the current university policy, an advisor is someone who supports and advises a party in navigating the grievance process and assists a party in accessing support options. In the new regulations, advisors will also be tasked with conducting cross-examinations during live hearings. Advisors are chosen by the party, but under the new regulations the university must also provide a party with an advisor for a live hearing if they do not have one. Advisors do not have to be attorneys, but they can be.

An individual who is reported to have experienced Prohibited Conduct, regardless of whether the individual makes a report or seeks disciplinary action. Sometimes also referred to as a “party”.

This is one of the policies that govern student, staff, and faculty conduct at George Washington University. This policy specifically states the University’s prohibition of sexual and gender-based harassment, sexual assault, sexual exploitation, intimate partner violence, stalking, retaliation and complicity. It is sometimes referred to as “The Title IX Policy”. You can find the policy here.

This is conduct that is prohibited by the university’s policies. For our purposes, prohibited conduct refers to any of the conduct prohibited by the George Washington University’s Sexual and Gender-Based Harassment and Interpersonal Violence Policy (sexual and gender-based harassment, sexual assault, sexual exploitation, intimate partner violence, stalking, retaliation, complicity, etc.). You may also have seen the term prohibited conduct referring to things like cheating and plagiarism, but that is in a different policy entitled the “Code of Conduct” which you can find more information here.

All the schools and institutions of higher education that must abide by the new regulations brought forth by The Department of Education. They are referred to as “recipients” because they are recipients of federal financial assistance covered by Title IX, including elementary and secondary schools as well as postsecondary institutions. George Washington University is a Recipient.

An individual who is accused of Prohibited Conduct. Sometimes also referred to as a “party”.

While this term in our current policy can refer to things like unwanted sexual comments or unwelcome sexual advances, it is also used as an umbrella term that encompasses all prohibited conduct of a sexual nature. This includes sexual assault, stalking dating/domestic violence, sexual exploitation, and other offenses. Definitions for offenses are outlined in University policies. The definitions of sexual harassment offenses may change in the coming months to better align with the definitions in the new regulations.

The full name is Title IX of the Education Amendments Act of 1972. This is a federal law that states that people must be protected from sex-based discrimination in educational programs or activities that receive federal funding/financial assistance. New regulations to Title IX were released by The Department of Education, , led by U.S. Secretary of Education Betsy DeVos, on May 6th, 2020. As of right now, according to the Department of Education, these new regulations will be effective on August 14th, 2020.

New Title IX Regulations 

In the following section, the Office of Advocacy and Support outlines some information about GW’s current Sexual and Gender-Based Harassment and Interpersonal Violence Policy (which you can read in full here). The university is currently reviewing our policies for compliance with the new regulations issued by the US Department of Education that will go into effect on August 14th, 2020. It is critical to note that while some of the changes are mandatory, there are some opportunities in the regulation that allow the recipient/university to decide if and how they want to implement the changes in their policy. Where that is the case we will make note of it throughout. If you would like to read the full document from the Department of Education outling the new regulations, you can find it here.

Current: George Washington University has designated certain individuals as Responsible Employees, which means they are required to promptly report any information they learn about suspected Prohibited Conduct or potential violations of the Title IX policy. Some of these individuals include Faculty, Athletics Coaches, Academic Advisors, Residence Directors, Resident Advisors, and Area Coordinators. You can find out more about the current policy on Responsible Employees here. If someone wants to seek support but does not want to have information shared with Title IX, there confidential resources available. The Office of Advocacy and Support and Colonial Health Services are both confidential resources on campus.

 

New Regulations: The new regulations do not name certain individuals as Responsible Employees and have withdrawn the rubric that was used in the past to help universities decide who should be designated. However, the regulations give the University the final say in who they think should be designated as a Responsible Employee. That means that GW can designate which employees must report any information they learn, may report information, or can only report information with the survivor’s consent.

Current: George Washington University’s Sexual and Gender-Based Harassment and Interpersonal Violence Policy designates timeframes for the major stages of the investigation and resolution process (typically set forth in business days) but the university may extend any timeframe in the policy for good cause such as if there is a large volume of information to go through, if a witness becomes unavailable and needs to reschedule, or if one of the parties requests a delay. However, the University aims to complete the initial assessment within 10 days and the formal investigation, specifically the fact-finding portion within 50 business days. You can learn more about timing of processes by reading the policy here.

 

New Regulations: In the past, recommendations stated that a “typical investigation” should take about 60 days, sometimes longer depending on the complexity of the case. The new regulations do not require a specific time frame, but states that all parts of grievance processes (such as filing a complaint, resolving appeals, formal/informal processes) should be completed in a reasonably prompt timeframe. While this does not recommend an exact number of days, the new regulations do not allow universities to prolong processes unreasonably. Universities are given the option to define what a “reasonably prompt timeframe” means for them, so you may see some college and university set specific timeframes in their policies.  (This information can be found on page 2019 of the new regulations document.)

Currently: George Washington University, like many universities, has followed past guidance and uses a standard of evidence called “preponderance of the evidence” to determine if the information provided is sufficient enough to determine if a policy violation occurred. In terms of Title IX, “preponderance of the evidence” means that a Complainant provides information to an Investigator that shows that there was “more likely than not” a policy violation that occurred, even when considering information shared by the Respondent.

 

New Regulations: The new regulations do not mandate a certain evidence standard, but instead allow universities to choose between two, “preponderance of the evidence and clear and convincing.” Yet, regardless of the evidence standard chosen, recipients must apply it to all formal complaints of sexual harassment, including those involving employees. “Clear and convincing” is a higher standard of evidence than preponderance of the evidence. The clear and convincing evidence standard means that a Complainant must provide information to an Investigator that shows that there “it is highly or substantially more probable” that a policy violation occurred than not, even when considering information shared by the Respondent. However, it is very important to reiterate that universities do have a choice, so GW may choose to continue to use the preponderance of the evidence standard.

Currently: George Washington University does not currently provide live hearings. Instead, complainants and respondents go through what is called a Disciplinary Process. This process has formal procedures that involve an investigation, adjudication and, if appropriate, the imposition of sanctions. Investigators meet with the parties (sometimes with advisors) and witnesses separately to gather relevant information and evidence. This is the only time that a complainant will have to share their story. After, the Investigator prepares a preliminary investigative report with information that will be used in determining whether there was a policy violation and shares that with both parties. Once both parties review the report, if no additional investigation is required, a final investigative report is written. If the final investigative report determines that there was sufficient evidence to prove that “more likely than not” a policy violation occurred, a designated Disciplinary Authority is assigned to review it and provide a sanction. The Disciplinary Authority will review mitigating and impact statements and also meet with the parties. After , the Disciplinarily Authority will determine the appropriate sanction.

 

New Regulations: The new regulations state that after an investigation report is compiled by an investigator, universities will be required to provide live hearings for formal complaints. In these live hearings, decisionmakers (you can find the specific language about decisionmaker training on page 2019) hear from parties/witnesses and review evidence to make a decision. During the hearings, universities are also now required to allow cross-examination by advisors representing the parties. Advisors can be, but do not have to be, attorneys. If a party does not have an advisor, one must be provided for them free of charge by the university. This means that a complainant will have to tell their story at least twice; once to an investigator and then again at the hearing. However, formal resolutions are not the only way to engage with the Title IX process. Survivors may choose an informal resolution instead, for which there is no hearing. While these hearings have to be live, that does not mean that all parties have to physically be in the same space. At the request of either party, the university must provide for the live hearing to occur with the parties located in separate rooms with technology enabling the decision-maker and parties to simultaneously see and hear the party or the witness answering questions (pg. 2024/2025). 

Currently: George Washington University does not currently allow cross-examinations.

 

New Regulations: Cross-examinations will be part of the live hearing. According to the new regulations, cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally. The decisionmaker (not the advisor) decides if a question is relevant and if the advisor is allowed to ask that question to the party being cross-examined. If the question is deemed relevant, then the decisionmaker evaluates the question and any resulting testimony in order to reach a determination regarding responsibility. (Page 2024 of the new Regulations)

Currently: George Washington University offers an Alternative Resolution process, which is an informal framework that includes informal or restorative options for resolving reports of Prohibited Conduct that typically does not involve disciplinary action against a Respondent. Complainants are able to access this option through Title IX, and both parties have to voluntarily agree to go through this process. Some examples might include mediation, educational programming, and accessing support measures such as a change in campus housing for the complainant. If the Complainant and the Respondent reach an agreement acceptable to the university, through this Alternative Resolution process, the terms of the agreement are implemented and the matter is deemed resolved and closed. However, since this process is voluntary, either party can ask to end the Alternative Resolution process at any time.

 

New Regulations: Under the new regulations, it is still a voluntary choice for both parties to engage in an informal process. The new regulations do not go into nearly as much detail for an informal resolution process as they do a formal resolution process, so universities have more discretion on how these processes would be implemented at their institution. 

Currently: You can read about how George Washington University defines sexual and gender-based harassment and interpersonal violence by reading The Prohibited Conduct section in George Washington University’s Sexual and Gender-Based Harassment and Interpersonal Violence Policy. Currently, the policy states that behavior under the umbrella term of sexual harassment is prohibited conduct that is considered to be “sufficiently severe, persistent, or pervasive”.

 

New Regulations: The new regulations make some changes to how sexual harassment and other offenses are defined. The new regulations use the Clery definitions for most offenses, which you can find here. Clery crimes and definitions are defined by a piece of legislation called the Clery Act, which outlines certain reporting and notification standards universities must follow concerning sexual violence.  The new regulations also change the language of sexual harassment to say that the conduct must be “severe, persistent, and objectively offensive,” whereas the current policy states that sexual harassment is defined as conduct severe, persistent, or pervasive. Thus, according to the new regulations this means that the standard for considering something sexual harassment under Title IX is going to be higher than it is currently, because the conduct would have to be seen as severe, persistent, and objectively offensive; whereas currently conduct could be seen as severe or persistent or pervasive and met the definition for sexual harassment.  While the definition of sexual harassment that falls under Title IX will change, universities do have the choice to address and discipline sexual harassment affecting community members that falls outside of the new definition of sexual harassment through other policies such as the code of conduct.

 

Even if your experience does not meet the new definitions under Title IX, that does not mean support is not available to you. Title IX will still be able to offer what has been known as “interim measures” and “accommodations”, even if you do not file a formal complaint. Additionally, the Office of Advocacy and Support can also provide many different support services and help you to navigate the new processes no matter what trauma, crime, or violence you experience.

Currently: The policy currently includes the following descriptions to explain jurisdiction, or in other words what complaints are appropriate for the University to handle. Such as if prohibited conduct occurred on campus or on university property, in the context of any university-related or sponsored education program or activity (including study abroad), through the use of university-owned or provided technology resources, when the conduct has continuing adverse effects or the creation or continuation of a hostile environment on campus.

 

This means that anyone who is a member of the GW community who experiences prohibited conduct by another member of the GW community can seek resolution in the Title IX process. This policy also includes if a non-GW affiliate experiences prohibited conduct by a GW affiliate. Members of the GW community can also seek support from Title IX if they experience prohibited conduct by a non-GW affiliate, but it still falls under GW jurisdiction. For example, a student may be assaulted on a study abroad trip by someone not affiliated with the university, and still has the right to contact Title IX for academic support measures or counseling referrals.


New Regulations: The new regulations change the jurisdiction of Title IX and focuses it on what is deemed to be under the control of recipients/universities. This means that the university will only be required to investigate sexual harassment (the umbrella term that includes all sexual violence) that occurs on-campus or property related to or owned by the university (ex. and athletic field, a space controlled by the university that houses a recognized student organization) or within a university’s “program or activity”, which does not include study abroad to spaces outside of the United States.

 

However, that does not mean that community members who experience incidents outside of university operated or controlled property will not have an avenue to file a complaint with the University. The new regulations state that although certain prohibited conduct may no longer meet the new Title IX regulation standards, it does not prevent a university from addressing the alleged misconduct under other provisions, such as the University’s Code of Conduct. Survivors also maintain the right to seek assistance from the Office of Advocacy and Support, which will continue to serve all members of our community who have experienced trauma, crime, or violence, regardless of it meets these new definitions or not.

Currently: The current Title IX policy lists OAS as a confidential resource by designation. It is important to note that in the current Title IX policy, OAS is listed as the Office of Victims Services. Our name changed since that policy was written, but we still maintain that confidential designation. 

New Regulations: The new regulations do not say much about confidential advocates. While OAS believes that we will maintain our confidential designation in the upcoming policy, OAS advocates are also deemed confidential by DC Statute. So no matter what changes may come, OAS will remain a confidential resource for survivors. 

 

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