The U.S. Department of Education recently released its long-awaited Title IX Final Rule. Compared to the Notice of Proposed Rule Making (NPRM) that was published in 2018, the new regulations have more than 50 substantive changes, meaning UNM has a lot of work to do in order to be in compliance.
This is the first time in 19 years the Federal law has changed regarding Title IX. In the past, these regulations have been guidelines, but are now legally enforceable.
The Final Rules under Title IX of the Education Amendments of 1972 were released on May 6, 2020 – with the Department of Education giving institutions 100 days to implement the requirements. These include policy amendments, reporting criteria, investigation standards, and live hearing processes.
“These changes will have a big impact on how we do things at UNM,” said Angela Catena, UNM’s Title IX Coordinator. “Unfortunately, we were given very little time to digest the changes before they go into effect, so we’re doing our best to both implement the regulations and inform our campus community about them.”
The Final Rule goes into effect Aug. 14, 2020. Below is an outline of changes that UNM students, faculty and staff should be aware of; click here to read more in-depth about the changes.
In addition, the Office of Equal Opportunity will host a town hall on Aug. 21, 2020 to answer questions. Click here to register for the Zoom. Questions for town hall panelists can be sent to firstname.lastname@example.org with the subject line “T.IX Town Hall Question”.
What is Changing
Title IX addresses all aspects of sex discrimination. However, these changes apply only to Sexual Harassment claims under Title IX.
Definition of Sexual Harassment
One of the biggest changes involves the narrowing of the definition of sexual harassment. The Final Rule defines sexual harassment broadly to include any of three types of misconduct on the basis of sex, all of which jeopardize the equal access to education that Title IX is designed to protect:
- Any instance of quid pro quo harassment by a school's employee;
- Any unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access;
- Any instance of sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA).
Education Programs and Activities
The new regulations state conduct must occur within a UNM education program or activity and against a person in the United States in order to be reviewed under Title IX. The regulations include situations over which the school exercises substantial control – as well as buildings owned or controlled by student organizations officially recognized by the school, such as fraternity and sorority houses. At the time a report is submitted, the Complainant must be participating or attempting to participate in UNM’s education program or activity.
A Complainant does not have to engage in a formal investigation to receive supportive measures. Institutions are required to provide supportive measures upon receipt of every report, regardless of a formal complaint being filed.
A formal complaint is a report filed by a Complainant or signed by the Title IX Coordinator. UNM must investigate every formal complaint filed by a Complainant or by the Title IX Coordinator. The regulations’ mandatory requirements for investigation apply to cases involving students and employees.
UNM’s Responsible Employee policy is not changed under the new regulations.
Informal resolution is an alternative to an investigation. Both parties must agree to an informal resolution, and it is only offered after a formal complaint is made. Informal resolutions are not offered where a staff or faculty has been accused of sexually harassing a student.
Live hearings are required for all investigations. They can be done virtually and must be recorded. During a live hearing, parties’ advisors will cross-examine witnesses and parties. Institutions must provide advisors, free of charge, to parties who do not have one.
What UNM Needs to do
Here are the steps The University of New Mexico will be taking in order to remain in federal compliance:
- Create a hearing process
- Create methods of addressing non-Title IX sexual harassment
- Identify and train hearing officers/panels, advisors, hearing coordinator
- Update policies and processes
- Update training material
- Update new student orientation materials
- Train campus on the new rule
- Train all Title IX personnel on new requirements
- Redefine prevention efforts and assessment