As most of you know, the Biden administration proposed new regulations for the enforcement of Title IX over the summer. We are currently in the “Notice and Comment” period through September 12, 2022. Over 125,000 comments have been received.
One area where significant change is expected relates to the grievance process and what is required in Title IX investigations. Most educational institutions would agree that the current process is complex, time-consuming, and burdensome. A new set of regulations attempts to address some of these challenges.
If elements of these draft regulations make it into the final regulations, there are some significant changes that could impact how Title IX investigations unfold:
1) The regulations would bring back the “single investigator” model for Title IX investigations. This means that a single person could investigate the facts and make a decision regarding policy violation and discipline. For many smaller colleges and K12 school districts, this would be a welcome change as many have struggled to staff and train for the investigator and decision-maker roles. The proposed regulations retain provisions, akin to the 2020 regulations, that no conflicts of interest or bias can be present in the investigation process. NPRM §106.45(b)(2)
2) The regulations would require investigations to “summarize” the evidence but remove the requirement that 100% of all evidence collected must be shared. This potential change attempts to balance the fairness of providing the necessary information to the parties while removing the large administrative burden currently found at colleges and K12 schools that requires ALL of the investigation evidence be made available to both parties for 10 days for review and comment. The requirement is both burdensome and time-consuming for timely resolution of a complaint. NPRM §106.45(f)(4)
3) Credibility assessments may be made by decision-maker in a separate meeting or hearing. As the new regulations state, a decision-maker can utilize:
“a process that enables the decisionmaker to adequately assess the credibility of the parties and witnesses to the extent credibility is both in dispute and relevant to evaluating one or more allegations of sex discrimination.” NPRM §106.45(g)
As most Title IX administrators know, the Title IX process in nearly every case involves a process of evaluating the credibility of both parties and witnesses. It remains unclear what this process will look like in the future, but it does seem to allow for credibility assessments without requiring a full hearing of the matter. Like other proposed changes, this appears to provide an educational institution with more flexibility to address Title IX matters efficiently without having to meet the procedural requirements that the 2020 regulations require.
What should Title IX administrators, investigators, and decision-makers do for this academic year? Continue to attend trainings that build skills that will be needed for the future regardless of the tweaks made to the grievance process.