Joint Guidance on Federal Title IX Regulations

A Joint Guidance on Title IX Regulations to Assist Institutions

The United States Department of Education released Final Regulations under Title IX of the Education Amendments of 1972 on May 6^th, 2020. To assist institutions with understanding the regulations and their effect, the organizations below, and the attorneys listed on the right, have decided to work together to issue a Joint Guidance. In the Joint Guidance, we will review each provision, provide analysis (including overlap, harmony, or conflict with the Clery Act as amended by the Violence Against Women Act and various state laws), and provide initial guidance regarding implementation and challenges that may arise.

The Joint Guidance is a project of about 50 dedicated attorneys who work on campus Title IX issues (you can see participants listed alphabetically on the right). It is intended to be thoughtful, high-quality, and widely available to institutions large and small, public and private, urban and rural, well-resourced, and budget challenged. Crucially, there will be no charge to access the Joint Guidance or any of its components. This Joint Guidance will be continuously updated as additional resources come online. While hosted and coordinated by SUNY, this is a project of equal partners dedicated to collegially helping colleagues in higher education.

There may be a tendency to “panic” about what Title IX Regulations will mean for institutions, processes, and most importantly, students. Individuals from certain quarters may use language that encourages such panic. But student and community trust in the systems that we use on our college campuses comes not from panic and rapid changes in response to shifting winds, but from a steady approach, mindful of the laws and regulations on point, but always seeking to build balanced policies that best serve students. The intent of this Joint Guidance is firmly not to sow or contribute to panic but to provide clear, plain-language analysis and compliance guidance, as well as an update on the effective date, litigation and legislation that may postpone effectiveness, and compliance resources that are available for use. There may be several steps before institutions have to implement the changes that may come from the regulations, and we urge a thoughtful, campus-specific, approach (prepared in partnership with your campus or outside counsel, and mindful of your state and local laws and regulations) rather than jumping into major changes before full consideration.

Further, we recognize that these Regulations come amidst the significant challenges of responding to a global pandemic. This may pose additional challenges for institutions trying to meet the obligations of these Regulations.

1. Title IX Text for Text Proposed to Final Comparison, version 2.0
2. Title IX Summary Proposed to Final Comparison, version 1.0
3. Introduction to Joint Guidance, version 1.0
   ADA Accessible, Large Print version of Final Rule (large file)
   ADA Accessible Audio version of Final Rule (large file)
4. Talking to Stakeholders About the Title IX Regulations, version 1.0
5. Pending Litigation Tracker
6. Section by Section Analysis
   1. 106.6 - Effect of other requirements and preservation of rights
      1. Parental Rights
      2. Preemption
      3. Title VII
      4. FERPA
   2. 106.8 - Designation of a Coordinator, Dissemination of Policy, Adoption of Grievance Procedures
   3. 106.9, § 106.18, § 106.24, § 106.46, § 106.62, § 106.62, § 106.72, § 106.82 – Severability
   4. 106.12 - Assurance of Exemptions and Faith Based Institutions
   5. 106.30 - Definitions
      1. Formal Complaint
      2. Actual knowledge
      3. Sexual Harassment
      4. Educational Institutions
      5. Complainant and Respondent
      6. Consent
      7. Supportive Measures
   6. 106.44 – Recipient’s response to sexual harassment
      1. Geography of Jurisdiction & Institutional Liability
      2. Required Response
      3. Emergency Removals
      4. Administrative Leave
   7. 106.45  –  Grievance Procedures Basic requirements for grievance procedures
      1. Discrimination Based on Sex
      2. Treating Parties Equitably
      3. Conflicts of Interest or Bias
      4. Objective Evaluation of Evidence
      5. Timeframes
      6. Standard of Evidence
      7. Training of Officials
      8. Notice of Allegations
      9. Dismissal of Complaints
      10. Consolidation of Complaints
      11. Inspection and Review of Evidence
      12. Investigative Report Required
      13. Live Hearings, Cross-Examination and Advisors of Choice
      14. Hearings Optional: Elementary and Secondary Schools
      15. Determinations Regarding Responsibility
      16. Appeals
      17. Informal Resolutions
      18. Recordkeeping
   8. 106.71- Retaliation
7. Discussion of Response to NPRM Directed Questions
   1. Directed Question 1
   2. Directed Question 2
   3. Directed Question 3: Focus on Title VII and Title IX
   4. Directed Question 4: Focus on Trainings re: Trauma-Informed Practices
8. Select State and Local Issues
   1. California
   2. 50 State Comparison: Hearing Requirements for Elementary and Secondary Schools
   3. Comparison: NY Educ. Law 129-B & the Final Rule
9. Additional Analysis
   1. Note on Bostock v. Clayton County, Georgia

Last Updated: 9/18/20 - 3:24pm