New Title IX regulations take effect Aug. 14by Princine Lewis Aug. 14, 2020, 10:45 AM
The U.S. Department of Education’s new Title IX regulations that govern colleges’ and universities’ policies and procedures for investigating and adjudicating certain allegations of sexual harassment, which is defined to include sexual assault and other forms of sexual misconduct, officially take effect today. These requirements are not limited to allegations involving students, but also apply to staff, faculty and postdoctoral scholars.
In accordance with federal law, Vanderbilt will incorporate the requirements of the new rules, including their related procedures, into its sexual misconduct policy. Vanderbilt’s policy, however, prohibits a broader range of conduct than is required by the regulations and is not as limited in geographic scope. Incidents that occur on or after Aug. 14, 2020, will be subject to this new sexual misconduct policy.
While the new regulations require significant shifts in policies and procedures, in some areas they allow for institutional choice or discretion. At Vanderbilt, campus stakeholders—representing Title IX, Project Safe, Student Accountability, Equal Opportunity and Access and the offices of the Provost and General Counsel—have developed a policy that complies with, and where possible goes beyond, the new requirements as part of the university’s continuing commitment to addressing sexual misconduct in all forms.
Live hearings in some cases
For allegations of conduct governed by the new Title IX regulations, Vanderbilt is required to use a live hearing model, in which advisers for the complainant and the respondent are permitted to cross-examine the other party and any witnesses. This is a change from a single investigator model, where the facts are collected and the findings are determined by the investigator.
The hearings, which may be held virtually, will be used for all matters that meet the federal definition of sexual harassment, and for alleged violations of Vanderbilt’s sexual misconduct policy in which both the complainant and respondent are students.
The Title IX coordinator will make the initial assessment regarding whether a complaint falls under the formal grievance process required by the Title IX regulations or, if not, might properly be addressed under an alternative process under the university’s sexual misconduct policy.
Complainants and respondents may provide their own advisers—or choose one from a list of pre-identified advisers maintained by the university. For matters conducted under the formal grievance process and other matters in which students are respondents, the university will make these advisers available to complainants and respondents at no cost.
At any point after a formal complaint has been filed with the Title IX office, parties may engage in an “informal resolution” process. If the matter is not settled through informal resolution, the matter may proceed to a hearing. Informal resolution will not be allowed in cases where the respondent is a faculty or staff member.
To resolve allegations of conduct governed by the new Title IX regulations and all allegations with student respondents, the university will engage hearing officers with professional legal experience to conduct the required hearings. The hearing officers will consider the allegations, apply the evidentiary standard, make determinations of responsibility, and impose sanctions for violations. Trained officers also will preside over appeals of these matters.
Previously, a Title IX investigator made a determination of responsibility and referred the matter to the appropriate office, such as Student Accountability or Human Resources, or dean for sanction. Student appeals had been decided by a panel of three appellate officers for sexual misconduct.
What is not changing
Within the discretionary areas of the new regulations, Vanderbilt has made the decision to:
- Maintain the preponderance of the evidence or “more likely than not” standard for adjudicating cases.
- Continue to broadly define “mandatory reporter,” or those required to report sexual misconduct and retaliation to the university.
- Broadly define the behaviors that constitute sexual misconduct. For example, the sharing of sexually explicit images or videos of a person online without their consent is conduct that is not specifically addressed in the new regulations but will continue to be covered under Vanderbilt’s sexual misconduct policy.
Complainants also will continue to have the option to request that the Title IX Office not pursue an investigation. The Title IX coordinator will give substantial weight to a complainant’s request, except where there is risk to the safety of the Vanderbilt community or the university’s commitment to provide a non-discriminatory environment.
Any member of the Vanderbilt community who has experienced or been impacted by sexual misconduct also will continue to have access to campus resources, such as the University Counseling Center, Work/Life Connections–Employee Assistance Program, Student Health Center, Vanderbilt University Police Department and Project Safe Center for Sexual Misconduct Prevention and Response.
For more information, please see the university’s updated Sexual Misconduct and related policies, which detail the new Title IX process.