Navigating the next wave of Title IX changes: What Maine colleges and universities need to know
Bernstein Shur
Attorneys Katherine Kubak (left) and Kai McGintee are in Bernstein Shur's investigations and resolutions practice group.
Title IX of the Education Amendments of 1972 provides that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance."
The Title IX landscape has evolved constantly over the last decade, and by October 2023, the U.S. Department of Education is expected to provide new regulations once again. As recipients of federal funding, colleges and universities are required to comply with Title IX, which covers all forms of sex discrimination including sexual harassment/assault.
With updated regulations, institutions have the opportunity to make changes to existing Title IX-related policies and procedures. Here are four recommendations to consider in this process:
Consider all applicable laws
New Title IX regulations are coming, but other laws that govern institutional responses to campus sexual assault must be incorporated into policies and procedures. Maine, like many neighboring states, has enacted its own state law — LD 1727 — relating to campus sexual assault. This law imposes distinct requirements from Title IX, such as the requirement of climate surveys and the appointment of confidential resource advisors.
The past five years brought a surge in Title IX litigation, resulting in a growing body of case law related to campus sexual assault policies and procedures. These cases created splits by courts in different jurisdictions as to what is required in campus sexual assault proceedings to satisfy due process requirements. For example, in some areas of the country, hearings with cross-examination by advisors are required even if the anticipated Title IX regulations no longer contain that requirement. It is important that colleges and universities in Maine stay abreast of current Title IX cases in their jurisdiction, the First Circuit Court of Appeals.
Reflect on your community's needs
Beyond complying with the applicable laws, institutions should ensure that their policies and procedures meet their constituents’ unique needs. While somewhat challenging in an evolving space, constituents benefit from degrees of uniformity and consistency in the Title IX process. Knowing how the process will work and that it is designed to function without bias and conflicts of interests empowers community members to access and have trust in the process. Consider what steps can be taken beyond legal compliance to prevent, address, and remediate gender-based misconduct on campus.
Conduct a Title IX staffing audit
Title IX offices are increasingly understaffed and overworked: the demanding nature of the work and continuous uptick in cases has led to high burnout rates. With another round of regulatory changes around the corner, institutions should be mindful of these issues and ensure that Title IX offices have sufficient staff, resources, and support to meet the needs of their communities and fill the different roles in Title IX processes as required by law. Institutions may consider using external contractors to fill roles of investigators, hearing officers, and hearing advisors; training additional internal personnel; and/or expanding Title IX offices.
Assess current policies
New regulations will likely afford institutions greater flexibility in Title IX processes. This creates an opportunity for institutions to keep what is working and improve problematic aspects of the Title IX process. In determining how to modify current policies, institutions should consider applicable laws, community expectations, and ultimately use this as an opportunity to tailor their Title IX framework to best practices and address challenges to the current process.
In the ever-changing Title IX landscape, colleges and universities should keep their focus on the purpose of Title IX: to ensure equitable access to educational programs and activities. By preparing for future regulatory changes with the above considerations, Maine’s higher education institutions will be ready to weather the shifting winds of Title IX.
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