Responding to the new Title IX rule: 3 key considerations during COVID-19

Expert Insight

Responding to the new Title IX rule: 3 key considerations during COVID-19

The new Title IX rule from the Department of Education has immediate implications for institutions as they try to meet the required changes amid their ongoing coronavirus response. Even in the midst of uncertainty around the fall semester and whether students will be on campus, institutions need to address three key areas across the summer to comply with the August 14 deadline. 

1. Determine if and how they will hold virtual hearings

Even prior to the new Title IX rule, institutions grappled with whether to continue with virtual hearings after campus COVID related closings or pause investigations until their students returned. Victims’ rights advocates argue pausing hearings puts undo emotional burden on survivors while equal rights advocates argue virtual hearings hinder the equitable treatment of respondents. The new Title IX rule, however, directs institutions to allow either party to attend the entire live hearing in a separate room using technology, which supports their ability to host virtual hearings while remote for coronavirus.

As a result, most institutions are moving forward with virtual hearings, something we expect to continue even with the addition of the cross-examination requirement. Since the COVID-19 pandemic began, the federal district courts for the Eastern District of Kentucky and Northern District of Ohio ruled in favor of remote hearings. In Doe v. Transylvania University, the university had already adjusted their Title IX adjudication process in anticipation of the new Department of Education guidance surrounding cross-examination. Both of these federal district courts found virtual hearings to meet the “live” standard set forth in the new Title IX guidance.

2. Communicate what the new Title IX changes mean and adjust university trainings for faculty, students, and staff

Universities have until August 14 to comply with the Title IX changes. Therefore, it is critical that institutions use the coming weeks to explain the changes to faculty, students, and staff and provide updated trainings. For example, Stanford University and Dartmouth University moved their required Title IX training for graduate students and staff to online sessions, using the same technology that facilitates virtual learning. At the same time, other institutions are revisiting their training sessions and/or orientation modules for incoming undergraduate students and making changes as needed. 

In addition to virtual trainings, institutions should also create FAQ sheets for their Title IX websites and share them out via email to ensure understanding of the changes across campus. FAQ statements should include information on policy and procedural changes at the university based on the guidance.

Address these Title IX changes in FAQs:

Whether your institution will raise the bar for what constitutes a violation of campus policy from the preponderance of evidence standard to the “clear and convincing” standard.

Any changes to the hearing and adjudication process for claims including clear explanation of the cross-examination requirement.

If and how your institution will respond to complaints that no longer fall under Title IX (e.g., sexual harassment during study abroad).

3. Continue to connect survivors to support services and resources

The Title IX changes were already polarizing prior to their enactment and will likely impact students with ongoing cases. Furthermore, students may struggle to reach out for counseling support or other resources while they are at home. Most Title IX websites typically include links to reporting and mental health resources. However, a recent EAB web scan shows that only 1/3 of them have been updated to reflect changes during COVID-19, such as whether they are currently conducting investigations and/or holding sessions with the coordinator remotely. One institution that stands out here is Barnard College who updated their sexual violence prevention office’s main page with a disclaimer on remote operations during COVID-19. In addition to contact information for their Title IX coordinator, Barnard included the phone number for their sexual violence prevention hotline, ensuring students in crisis could easily access it. After this reading piece, we recommend you do a quick audit of your institution’s Title IX website and identify anything that might need to be updated in light of the current situation. 

Ensuring updated information about access to support resources is only the first step. Institutions must also proactively promote these resources on social media as part of their COVID-19 response to ensure student awareness and access. Baylor University interviewed representatives from the Title IX office on how the office was operating during COVID-19, and posted the interview on their social media. Similarly, Lubbock Christian University tweeted out a helpful infographic with contact information for both reporting and counseling resources.

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