2020 Title IX Regulations: Resources and Updates

While there are numerous requirements under the new Title IX regulations, here are some of the most significant ones:

• The grievance process must incorporate live hearings and allow for advisors to cross-examine parties and witnesses.
• If a party cannot afford or independently acquire an advisor of choice for the purpose of cross-examining, the institution must provide one.
• These grievance process requirements must now apply to faculty and staff despite collective bargaining agreement, shared governance, or conflicting state laws.
• All grievance processes specific to Title IX must use the same evidentiary standard regardless of whether the parties are students, faculty, or staff.
• All evidence collected during the investigation must be shared with all relevant parties regardless of whether the evidence is irrelevant or will be considered by the adjudicator(s) or “decision-makers.”
• Parties must be allowed to appeal on equal grounds.
• There is a narrower definition for what constitutes sexual harassment based on the definition determined by the Supreme Court as well as a narrower geographical jurisdiction for Title IX.
• The criteria for when an institution of higher education would have official notice of an act of sexual harassment is now only when the Title IX Coordinator is informed.
• There would be fewer limitations for when an informal resolution process, such as mediation, could be utilized.
• Policies must formally incorporate language that there is no presumption that the respondent is responsible for the allegation(s) unless there is a finding.
• Adjudicators or “decision-makers” cannot be the Title IX Coordinator or investigator.
• Alleged sexual and gender-based misconduct that does not meet the definition of sexual harassment per the final regulation must be “dismissed” under Title IX but can be addressed under a non-Title IX policy (ie. code of conduct, Title VII/Anti-Harassment Policy, etc.).
• All relevant training materials must be available to the public via the College’s website.

For more information about other new requirements or to read the regulations yourself, please visit the Department of Education’s website.

The Department of Education is requiring all colleges and universities to comply with these new regulations as August 14, 2020. Over the month of June, there will be opportunities and programs that will provide students, faculty, staff, and community members to ask questions and provide comments and feedback. In the meantime, comments and feedback can be sent to Title IX Coordinator Joel Aure at jaure@skidmore.edu.

Student Information Sessions:

• Tuesday, June 23 at 7:00 p.m.
• Wednesday, June 24 at 1:00 p.m.

Faculty Information Sessions:

• Tuesday, June 23 from 1:30-2:30 p.m.
• Wednesday, June 24 from 10-11 a.m.

Staff Information Sessions:

• Tuesday, June 30 at 1:00 p.m.
• Wednesday, July 2 at 2:00 p.m.

More programs and sessions will be announced soon!

• Faculty Presentation
• Staff Presentation
• Student Sessions

A: Under the new regulations, the reported incident would have to be “dismissed” under a Title IX policy. However, this means that the report would then be referred and addressed under an existing non-Title IX policy, such as the Student Code of Conduct/Current SGBM Policy or the Anti-Harassment Policies for Faculty and Staff.

This includes acts of SGBM in the virtual environment. Regardless of the policy that applies to a report of SGBM, students will be offered and ensured access to their options, rights, and resources (including supportive measures) as they consider their path moving forward.

A: Yes, the regulations apply to Title IX cases involving faculty and staff.

A: No. No one will be forced to participate in this process. If a Complainant decides to come forward to access resources and support but is unsure if they wish to file a Formal Complaint, the Title IX Coordinator would review their options and rights but still help them access the necessary resources and support.

A: Yes, an individual can come forward to seek supportive measures without filing a Formal Complaint. However, if information reported requires the College to investigate the matter for the safety and protection of our community in accordance with federal and state laws, then the College will do so. Once again, no one will be forced to participate in the process.

A: No. Parties can still select an advisor of their own choosing with the understanding that for the hearing, each party has the right to have their advisor conduct cross-examination of any other party or witness.

A: No. If you file a Formal Complaint, the allegations reported will determine whether the Title IX process has jurisdiction and must be utilized.

A: Unfortunately, at this time the College is unable to provide a transcript or recording of the information sessions. However, the PowerPoint can be accessed on the Title IX Updates page. You may also contact the Assistant Dean of Student Affairs for Student Success, Lorri Riggs (lriggs@skidmore.edu), to discuss the presentation.

A: Yes. These regulations have the force and effect of law, which means that the federal government can and will take action against institutions that are non-compliant. Institutions must implement the required changes by August 14, 2020.

A: No. Employees and students who have an anonymous reporting obligation, such as Victim Advocates and Peer Health Educators (PHEs), will continue their work as anonymous resources. Anonymous resources are required to relay only non-identifying information to the Title IX Coordinator (e.g., date, time, location) when they receive a report of SGBM.

A: The relationship between Skidmore and SSPD will not be altered by the new regulations. When a Title IX or non-Title IX SGBM case coincides with a law enforcement investigation, officials from both entities will communicate to ensure that the separate processes work within their legal boundaries and respect the complainant’s decision on how to move forward.

A: The U.S. Department of Education (ED) is requiring all institutions of higher education to implement a live hearing process with cross-examination. This provision is grounded in the ED’s heavy emphasis on due process as well as its interpretation of fundamental fairness.

A: Parties are able to work with an advisor of their choice (AoC) throughout the reporting, investigation, and adjudication process. Each party is required to have an AoC to conduct cross-examination on the party’s behalf during the live hearing. While Skidmore cannot control who a party selects as their AoC, Skidmore will provide an AoC to parties that do not have one. AoCs provided by the College will have received training and demonstrated competence in trauma-informed practices, effective and appropriate questioning, and institutional policies and processes.

A: The new regulations require that questions and evidence regarding a complainant’s sexual predisposition and sexual behavior are automatically deemed irrelevant, and thus cannot be used during the investigation and adjudication process. However, the regulations specify two exceptions to this provision that may be considered relevant:

1. Questions and evidence about the complainant’s prior sexual behavior that are offered to prove that someone other than the respondent committed the conduct;
2. Questions and evidence that concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.

A: No one will be forced to participate in any part of the reporting, investigation, or adjudication process. However, the new regulations require that if a party or witness does not submit to cross-examination at the live hearing, the adjudication panelists must not rely on any statement by that person in reaching a finding of responsibility. In such cases, the adjudication panelists cannot reach a finding of responsibility based solely on that person’s absence from the live hearing or refusal to answer cross-examination or other questions.

A: Sanctioning under the new Title IX policy and the non-Title IX SGBM policy will function similarly. Both processes will include a range of possible sanctions and will be followed by an opportunity for the parties to appeal the outcome.

A: We acknowledge that the use of legal language in the presentation is not easily digestible, and apologize for any confusion or challenges resulting from its inclusion in the information session content. It was included to capture how the ED is framing the new requirements, and to introduce terms that may be included in the College’s new policies and processes. There are numerous online resources that break down the general changes to Title IX, including summaries from SUNY Student Conduct Institute, American Council on Education, and National Association of Independent Colleges and Universities.

We will also be creating and posting additional resources specific to Skidmore’s policies and processes that will help students understand the changes and their practical implications. For in-person discussion on student impact of the new regulations, the Title IX Deputy Coordinator for Student Affairs will be holding virtual open office hours weekly, beginning the week of July 20, 2020. Please check your inbox for the Zoom link.

A: Implementing the required Title IX changes, amid navigating safety and wellness in relation to the COVID-19 pandemic and the movement for Black lives, presents the College with a valuable opportunity to reshape and improve the Skidmore community’s engagement in protecting and supporting its members that have been impacted by SGBM as well as preventing SGBM from occurring at all. Currently, members of the Title IX Working Group are developing peer-to-peer consent training that will reach the larger student population, not only students required to receive such training. The Working Group will also be forming a student-centered committee focused on the intersections of social justice and Title IX. As the College’s Title IX and SGBM policies are finalized, the Working Group will be identifying further opportunities to educate and engage students on the prevention of and response to SGBM.