Updated Title IX Rules: Analysis on the Title IX Coordinator, Notice and Reporting

Updated Title IX Rules: Analysis on the Title IX Coordinator, Notice and Reporting

Each recipient must designate at least one employee as Title IX Coordinator who coordinates the recipient’s compliance with Title IX obligations. § 106.8(a). The Title IX Coordinator is not prohibited from delegating his or her responsibilities under Title IX to deputy or assistant Title IX Coordinators or to administrative personnel. 85 FR 30118. Similarly, a recipient may designate and authorize multiple Title IX Coordinators. Id. The Department’s goal is to allow each institution the flexibility to maintain Title IX compliance within the institution’s resources, size of student population, and educational objectives. Id.

Recipients must take steps to provide notice of the contact information for the Title IX Coordinator to applicants for admission and employment, students, parents or guardians of elementary and secondary school students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the recipient. § 106.8(a). Recipients must also display such information on their websites and handbooks. § 106.8(b)(2)(i). Any individual can report sex discrimination in person, by mail, by telephone, by electronic mail, by using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving a verbal or written report. Id.

Nothing in the regulations prevents a recipient from requiring certain or all employees to report every incident or allegation of sexual harassment to the Title IX Coordinator consistent with what were previously known as “responsible employees.” 85 FR 30107. Title IX acts as a floor, not a ceiling, and allows recipients to designate those who the institution desires to be mandatory reporters. Id.

A recipient must adopt and publish a grievance process that complies with § 106.45. § 106.8(c). The formal grievance process prohibits the single-investigator model, meaning that the Title IX Coordinator may not serve as both the decision-maker and investigator. § 106.45(b)(7)(i). The formal grievance model also requires an unbiased Title IX Coordinator, and provides that he or she “may not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.” § 106.45(b)(1)(iii). Therefore, recipients must ensure that Title IX Coordinators receive training on the definition of sexual harassment; the scope of the recipient’s education program or activity; how to conduct an investigation and grievance process; and how to serve impartially, including by avoiding prejudgment of facts, conflicts of issue, or bias. Id.

Once the Title IX Coordinator receives notice of allegations that may constitute sexual harassment under Title IX, they assesses them to determine if the allegations fall within Title IX’s jurisdiction, and if they do, whether, assuming the allegations are true, such conduct would amount to a violation of Title IX. 85 FR 30132. When making this assessment, the Title IX Coordinator should determine whether the allegations 1) amount to sexual harassment 2) occur in an education program or activity of the institution and 3) are against a person in the United States. § 106.44(a).

This response obligation requires the Title IX Coordinator to promptly contact the complainant to discuss the availability of supportive measures, consider the complainant’s wishes regarding supportive measures, apprise the complainant of the availability of supportive measures with or without filing a formal complaint, and explain the formal complaint-filing process to the complainant. 85 FR 30113-14. The Title IX Coordinator is responsible for implementing supportive measures and must serve as the point of contact for affected students. § 106.45(b)(7)(iv). The Title IX Coordinator is also responsible for effectively implementing any remedies following a final determination which the Department will not prescribe or second guess. Id.

A formal complaint is either submitted by the complainant or signed by the Title IX Coordinator. § 106.30(a). After receiving a formal complaint, a recipient must provide written notice to all known parties containing an explanation of the grievance process; notice of the allegations in sufficient detail; notice of the right to an advisor of choice; a statement that the respondent is presumed not responsible; any provision of the code of conduct prohibiting knowingly false statements; and notice of the time, location, and purpose of the meetings associated with the proceeding. 106.45(b)(2)(i)(A-B). The recipient must also supplement such notice in the future if necessary to the extent new allegations emerge. § 106.45(b)(2)(ii). The Title IX Coordinator also has the discretion to sign a formal complaint to initiate the formal grievance process even without the complainant’s consent if doing so is required in order for the recipient’s response to not be deliberately indifferent. § 106.30(a). A Title IX Coordinator’s decision to sign a formal complaint should be reached thoughtfully and intentionally and should not be an automatic result that occurs any time a recipient has notice that a complainant was allegedly victimized by sexual harassment. 85 FR 30131. A formal grievance process without a participating complainant becomes more difficult in light of the requirements in §§ 106.45(c)(3)(vii), which instructs institutions to disregard statements or witnesses who do not submit to cross-examination.