New Year, New Title IX Policy? Four Steps to Get Your Policies and Procedures in Shape
It’s 2022. We know that we are expecting new proposed Title IX rules in April 2022. Still, if that tells us anything, it’s that we will be living with the current Title IX regulations for at least another calendar year, and probably for a whole school year after that. Schools cannot be complacent in ensuring that policies and procedures are up to standard under the current rules simply because new rules are coming sometime in the future. I know; it’s not what anyone wants to hear. But the good news is, updating your policies and procedures does not have to be painful. Here are four steps you can take to get your policies and procedures in the best possible position for the next few semesters while the 2020 Title IX rules will still be in effect.
Step 1: Use Your Resources
Reluctance to change policies and procedures often rests on a belief that doing so is expensive and time-intensive. It doesn’t have to be if you use your resources. Maybe your school, college, or university has not had many reports or complaints, so you don’t feel well-versed in what changes might need to be made. Or maybe you have too much on your plate to do updates yourself. At Thompson & Horton, we help schools, colleges, and universities fine-tune their policies and procedures efficiently and economically. We use our extensive experience working with educational institutions at all levels, in Texas and beyond, to provide clients insight on what to change and how to change it. For more information on our policy and procedure update services, email us at titleIX@thlaw.com. If you want to DIY, here are a few steps to consider.
Step 2: Decide What Documents to Change
When we talk about “policy,” we generally mean the formal policy issued by your governing board. Whether you are K-12 or higher education, public or private, charter or traditional, your policies are the formal governing rules of the institution. They are like federal law, such as Title IX of the Education Amendments of 1972. Policies are more complicated to change than other governing documents, as they generally require board approval and sometimes require lengthy committee processes to modify.
Particularly for policies on oft-changing laws like Title IX, the ideal is that the policy contains little more than a summary of the law, including any specific topics required to “be in” policy” and not much else. Why? Because we know that Title IX is going to change again soon. Setting ourselves up to implement those changes as quickly and painlessly as possible is an excellent use of your time now. The 2020 Title IX Rules do not require much to be in “actual “policy.” Title IX requires policy to include a nondiscrimination statement and Title IX Coordinator designation. The actual steps in the Title IX process can be in the educational institution’s “grievance process.” That can be the more informal regulations or procedures, not board policy. What are those documents?
“Regulations” or “procedures” are governing documents that implement the policy. The administration usually issues them. For both higher ed and K-12, procedures and regulations are often published as part of the board policy handbook or on the education institution’s website as web pages. They give more detail about what processes will be used to implement a policy. They are akin to “regulations” in federal law, like the 2020 Title IX regulations that the Department of Education issued to implement the Title IX law. Although they are sometimes published alongside or adopted with the policies, the general best practice is not to do so. It maintains the flexibility to quickly change the regulations or procedures as needed without board approval.
Should you make changes to your policies and procedures now? We know many are reluctant, with new Title IX regulations looming in the future. However, we have learned so many lessons in the 18 months since the Title IX rules went into effect. Many policies and procedures do not reflect the current best practices under Title IX. In some cases, your policies may include outdated rules or requirements, such as the now-void requirement for higher education institutions to exclude from the decision-making process all statements by a party or witness that does not submit to cross-examination at the hearing. We likely have 18 months left with these policies and procedures, so getting them right is worth the time and effort.
Step 3: Decide What Substance to Change
So, you’ve identified what documents need to be changed. Now, it’s time to pinpoint what changes to make. What should you do?
First, make sure that if your policy incorporates Title IX language that says it will do something, your regulations do so. For example, here in Texas, the model policy for K-12 schools say that “the Superintendent shall ensure the development of a Title IX formal complaint process that complies with legal requirements,” that the formal complaint process shall be posted District’strict’s website, and that the complaint process shall address certain basic requirements. Does your educational institution comply with that language or other language like it in your policy? Now is the time to make sure it does.
Second, consider readjusting and paring down policy language to push much of the information to procedures. Pushing much of the bulk of what is required by the 2020 Title IX rules to regulations now will allow you to update your processes easily when any new rules become effective. Given new COVID variants, staffing issues, and the other challenges our schools face these days, an ounce of prevention now will be worth a pound of cure whenever the new rules go into effect. Who knows what we’ll be dealing with in Summer 2023 or whenever the new rules go into effect.
Third, take a look at your process and see where issues have arisen. Have you found yourself not knowing what to do with sexual misconduct that is not Title IX sexual harassment in an education program or activity or the U.S.? Adding a procedure for handling such complaints is easier to do than it seems and can prevent a lot of headaches over the next 18 months or so while we await a new rule. Do your definitions of “sexual harassment” confuse and confound your Title IX team and parties alike? Are you finishing your Title IX complaints in anywhere near the timeframe your policies and procedures require? Have you been handling employee-on-employee misconduct the way your policies and procedures mandate? In short, does your policy reflect reality? Better to have a policy that accurately reflects your practices than one that technically complies with the law but is not used. In my experience, most schools that take even a quick look at their policies and procedures on these questions will see that they can make relatively quick to create governing documents that help the process along, rather than hinder it.
Step 4: Watch our Thompson & Horton Webinar on Key Issues to Consider When Updating Your Policies and Procedures
If you are hungry for a more in-depth discussion of this topic, my colleagues Holly McIntush, Rebecca Baily, and I discussed this very issue in a webinar a few weeks ago. If you missed it, you can watch the replay here. As usual, don’t hesitate to reach out if you would like to discuss this or any other Title IX matter further.