The final Title IX regulations recently released by the U.S. Education Department put more of a burden on administrators to identify their investigative processes, to provide an impartial report and to ensure all employees who witness sexual harassment or assault file incident reports.
Effective Aug. 14, the final rule of the federal civil rights law also does not force the accused or the accuser to be in the same room during cross-examinations.
“Administrators will have to grapple with the fact that the person who is conducting the investigation also cannot be responsible for deciding if the accused is responsible or not,” says HR Attorney Jared Pope and founder of Work Shield, an impartial, third-party technology platform and team of legal professionals that helps employers solve and address workplace harassment and discrimination issues. “Administrators must identify who is actually conducting the investigation, if they have the right criteria and expertise, and if they know what questions to ask or not ask.”
Navigating Title IX regulations
With these regulations, school leaders need to ensure their legal team can help with Title IX compliance, especially since the final rule goes into effect in mid-August.
“That’s not a lot of time to put this new system in place considering complications caused by the pandemic, and that’s not even considering whether schools are even going to open in August, which is a whole other topic,” says Pope. “Effective counsel will help administrative leaders, who feel this final rule is infringing on their ability to do their job, navigate through these obstacles while still complying with the regulations.”
Formal and informal hearings
In K-12 and higher ed, the accused and accuser can be in separate rooms during formal and informal hearings, so when cross-examinations occur, a third-party can write, record or video themselves asking the questions.
However, live hearings are optional in K-12 while mandatory in higher ed. “Quite honestly, that’s appropriate,” says Pope. “Can you imagine a first-grader having a live cross-examination?” Instead, the process can include parents or representatives.
Additionally, schools have the option of conducting informal resolutions through mediation or restorative justice, for example, but both the accused and accuser must provide written consent. “If this is pursued, then it is conducted like it is in a court system, where both parties need a trained mediator or neutral party,” says Pope.
Employee incident reports
All staff and faculty members are now obligated to report an incident regardless if they are a school counselor, part-time employee or teacher assistant.
“Schools need to ensure that responses to these complaints and additional follow-ups with third parties such as doctors and hospitals are kept confidential,” says Pope. “You can’t just send an email with the identities of the respondent, witness or the accused included, which can jeopardize the Title IX proceeding. Schools need a responsive and secure reporting platform and process.”
While students are not required to submit incident reports, school officials should still create a safe avenue that encourages the process without them having to worry about their peers finding out.
“It’s not a matter of who’s way of approaching sexual harassment or assault [in educational institutions] is right or wrong,” says Pope, “it’s a matter of these are the new rules and we need to follow them regardless of how we may personally feel about them.”