6 Questions Colleges Are Asking About the New Title IX Regulations

Martin Leon Barreto for The Chronicle

The new Title IX regulations governing how campuses handle complaints of sexual misconduct fill more than 2,000 pages, so most college administrators and experts haven’t had time to read all of the changes yet. But the rules, announced on Wednesday by Education Secretary Betsy DeVos and effective on August 14, are already prompting questions across higher education.

The Chronicle interviewed 10 campus officials and Title IX experts on Wednesday. Here are six questions they’re thinking about.

How will the new hearing and cross-examination requirements affect colleges?

Critics have long worried that the prospect of cross-examination could dissuade some sexual-assault victims from coming forward. Will the changes reduce reporting of incidents on campuses? If so, by how much? That all remains to be seen. Colleges will have to hold hearings for employee cases, too, which several experts called unprecedented.

Administrators said they also worried that cross-examination could give an advantage to students with the money to hire lawyers as advisers.

More students are likely to pursue informal resolutions, which typically don’t involve an investigation, a hearing, or serious punishment. The new rules allow such resolutions. “It paves the way for restorative justice within Title IX processes a little bit more,” said Jordan Draper, assistant vice president for student affairs and dean of students at the College of New Jersey.

Institutions are accustomed to handling some reports of sexual misconduct informally by making accommodations like class adjustments and dorm changes. But few colleges have standard policies for alternative resolutions. And colleges must make sure students understand that outcomes under the alternative approaches will differ from the formal process, experts said.

“I’m going to really look at what other resources I can make available for people,” said Alison Kiss Dougherty, associate vice president of human resources and Title IX coordinator at Widener University. Some students, she said, “won’t feel comfortable going through the university process any longer.”

Many colleges, including Widener, currently use a single-investigator model for Title IX cases, with no hearing. Under that model, someone investigates an alleged incident and recommends a finding to a different administrator, who then makes the final determination.

The model appealed to colleges that found hearings to be impractical, especially smaller institutions where potential conflicts of interest made it difficult to convene neutral hearing panels. But the single-investigator system will no longer be allowed, under the Education Department’s new rules.

What does the narrower definition of sexual harassment mean?

Sexual harassment that isn’t “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education” will no longer be considered a Title IX offense, at least as far as the federal government is concerned. That means colleges will no longer be obligated to investigate and adjudicate incidents that fall outside of those parameters.

“That doesn’t mean we’re not going to continue to address problematic conduct, even if it doesn’t fit in the Title IX box anymore,” said Taylor Sinclair, director of Title IX for the Nebraska State College System.

But how will colleges distinguish one kind of sexual misconduct from another? And what will they do with the cases that do not fall under the government’s Title IX definition but that many people will still consider violations of the gender-equity law?

The new definition “will require a lot of thought and analysis about which types of cases trigger the Title IX process, versus which types of cases can be investigated and administered through other processes,” such as a campus’s code of conduct, said Elizabeth Conklin, associate vice president, Title IX coordinator, and Americans With Disabilities Act coordinator at the University of Connecticut.

What will colleges do about their mandatory-reporting policies?

Many colleges currently require nearly all employees to report all sexual-misconduct allegations they hear about to the campus’s Title IX office. Under the new rules, colleges will no longer have to designate faculty and staff members as mandatory reporters, though they can continue to do so if they wish.

Some professors and others have expressed concern with the campus policies because they’ve felt forced to divulge private conversations with students who trusted them.

But the culture of mandatory reporting on many campuses has grown so strong that faculty and staff members may continue to report alleged incidents to the Title IX office, even if it’s no longer a Title IX requirement, said Courtney Bullard, a former associate general counsel at the University of Tennessee at Chattanooga who’s now a Title IX consultant. “You can’t untrain them,” Bullard said.

At the College of New Jersey, the mandatory-reporter group includes only department chairs, deans, student-affairs staff members, and other student-facing officials with some level of authority. Draper said she expects the college to preserve that policy.

What should colleges do about sexual misconduct that occurs in study-abroad programs?

College-run study-abroad programs have been considered educational programs under Title IX. But the new rules suggest that colleges will be responsible under Title IX only for sexual-misconduct incidents that happen in the United States.

Draper said it would feel antithetical to the mission of higher education to send students abroad but not offer them the same institutional protections as they’d receive on campus. “That would do a complete disservice to our students,” she said.

How will colleges communicate with their students and employees about the Title IX changes while they remain off campus?

Typically, when major policy changes are in the works, the entire campus community is involved in the conversation and offers feedback through in-person forums and other means, said Richard A. Baker, president of the American Association for Access, Equity, and Diversity.

How, Baker asked, will colleges explain to students what kind of conduct will fall under the new Title IX sexual-harassment definition and what will not? And how will institutions train students, professors, and administrators on all of the changes? “In the middle of a pandemic, this is going to be a challenge,” he said.

How will colleges overhaul their policies in three months amid the pandemic?

Some critics of the new rules have already threatened lawsuits to block them. But unless a court injunction delays the rules, Title IX officials said they’d have to figure it out by August 14. It won’t be easy.

All colleges are suffering financially due to Covid-19, but less-resourced institutions — like many small private colleges and community colleges — will struggle the most, administrators said. Should they outsource hearings to law firms or other consultants? Should they hire a new staff member? And where will they find the money?

“Most people at my institution are already wearing three or four hats,” said Robert Wood, Title IX coordinator at Gwynedd Mercy University, which enrolls 2,000 students. Policy changes must pass through many layers, he added, and will have to be approved by the institution’s president and board.

The prescriptive nature of many of the changes alarmed Kiss Dougherty, of Widener. “These put an incredible burden on colleges and universities,” she said.