What’s Next for Title IX? Effective Strategies to Mitigate Risk for Boards and Trustees
Tomorrow is August 1. This is the effective date of the Biden Administration's changes to Title IX. Colleges and universities have been preparing for months to ensure compliance with this new regulation. However, according to an article in Education Week, the proposed changes have already resulted in:
8 lawsuits;
26 states have signed onto the lawsuits; and
As of July 19, the rule is on hold in 21 states, and the Department of Education (DOE) is currently enjoined from enforcing the 2024 Final Rule.
What are the changes to Title IX?
For those not familiar, key updates and revisions are listed below:
Revised and updated definitions of offenses, including full protection from sex-based harassment.
Expanded supportive measures for impacted parties.
Changes to the resolution processes, including informal resolution.
Expanded mandatory reporting obligations for employees.
Broader protections for pregnancy.
Clarification of how Title IX protects LGBTQIA+ individuals.
For the full summary of key provisions, please visit FACT SHEET: U.S. Department of Education’s 2024 Title IX Final Rule Overview.
How the legal aspect will play out will be interesting! Regardless of the outcome, in order to prepare for change and to mitigate risk and educate boards, I watched a very interesting podcast from the The Association of Governing Boards of Universities and Colleges—Trusteeship Podcast Episode 47: Title IX Regulations—What Boards Need to Know.
Peter Lake, the Director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law, and Sally Mason, Senior Consultant and Senior Fellow, AGB President Emerita, University of Iowa, were guests on the podcast. Both Lake and Mason offered insights into what boards can expect once these changes go into effect.
What should boards and trustees expect from these changes?
There will be a potential for false positives and over-reporting of activity. This trend is quite common when a new rule goes into effect and leadership wants to encourage reporting.
The mandatory reporting provision is quite expansive. As Lake states, it "basically includes just about everybody that works on campus." Since this provision is so broad, it will likely encourage even the “reluctant reporters” to report any incident that may remotely appear to fall within the threshold. This may result in the Title IX coordinator being overwhelmed.
Since it is highly probable that reports will increase, it is essential for college and university leadership to inform the board and level-set expectations. Lake and Mason offered several recommendations on how to address this potential trend with boards and trustees.
What should be shared with boards and trustees?
College and university leadership must educate board members on what is happening.
Material items need to be shared with the board. Boards must also ask good questions and have good data.
Boards and trustees should understand their role with respect to institutional operations. The key is not to get into the weeds. Boards need to understand broadly versus needing action.
With changes to the cross-examination and resolution processes, "due process wars" may reach the board level. This may result in boards and leaders being asked to take a position, and those positions can increase risk to the institution's reputation.
Lake further advises that "situational awareness and understanding your state" are keys to preventing headlines.
Retaliation claims may also trend up and make headlines. Lake stated that "if they (the consumers) cannot find someone to complain to,” the issue can reach board members. Consumers will push issues right to the top without clarity.
Boards should also understand what is currently coming up with respect to judicial opinions.
With respect to the Clery Act, which permits fining, we may see fines in the $1MM range. This could result in the federal government pulling Title IV funding from schools.
Regulatory compliance may be "weaponized”; and with that, litigation will increase costs, including insurance premiums. The Departments of Risk Management, Audit and Compliance as well as the Office of General Counsel are key to setting expectations with leadership.
How can risk be mitigated?
With potential big shifts in regulatory standards, the key to risk mitigation is:
Training and education are essential for mutual understanding.
Be aware of compliance fatigue impacting over or under-reporting.
College and university leadership must be aligned with the board and set the tone.
Leadership must understand their communities beyond students, faculty, and staff.
Remember, as Lake states "any major political issue can become a college issue". Understanding who makes the decision on these matters is key in averting a crisis.
Include risk management, audit, compliance, and legal in conversations early to make sure the data used to make decisions is complete and accurate.
Final thoughts
Understanding the broader implications of these changes and maintaining situational awareness is essential for organizational resiliency. As institutions are faced with new regulations, effective risk mitigation is key to success.
By employing proactive education, clear and transparent communication, and cross-functional collaboration, boards and trustees can stay vigilant and adapt to this dynamic regulatory environment.
