Reading the Title IX Regs: Areas for Clery Practitioners to Understand

On April 19, 2024, the Biden Administration released updated Title IX regulations. Clery Center is continuing to diligently read and analyze  all 1,577 pages of the document.  However, in the interim, we wish to highlight a few key areas that Clery practitioners should prioritize understanding:

The regulations change who is required to report under Title IX: While the previous regulations limited required reporting to “officials with authority to institute corrective measures”, these regulations are much broader, and require reporting from roles “with responsibility for administrative leadership, teaching, or advising.” Even so, many campuses had retained broader reporting policies than the previous regulations required, so this change may or may not influence your current practices. As always, make sure you know who is required to report under Title IX, so that when you’re providing campus security authority (CSA) training, you’re able to clarify who is required to report only under the Clery Act or who is required to report under both the Clery Act and Title IX. 

Connect with your Title IX coordinator regarding confidential roles: The regulations determine who is considered a confidential employee under Title IX, which now includes:

• An employee of an institution whose communications are privileged or confidential under Federal or State law;

• An employee of the institution who the institution has designated as confidential for the purposes of providing services to persons related to sex discrimination (aka under Title IX); and

• An employee of a postsecondary institution who is conducting an Institutional Review Board-approved human-subjects research study designed to gather information about sex discrimination.

While this is exciting to see under Title IX, as it stands right now, the only roles that are exempt from being considered CSAs under the Clery Act are pastoral and professional counselors when functioning in those capacities. You’ll want to analyze what roles will now be confidential under Title IX and how that compares to roles identified as CSAs. As a result, you will need to educate on the reporting distinctions for each, specifically how a confidential role under Title IX might not be required to report for Title IX purposes but, if considered a CSA, would still be required to share non-identifiable information for Clery Act reporting purposes. For example, victim advocates might be on your list of CSAs depending on their function, and, now, depending on their recognized State privilege, might be considered confidential under Title IX. 

Clery Act and Title IX definitions kind of align…and kind of don’t: The new regulations no longer cross-reference to Clery Act definitions, and instead just include the required definitions in the text of their regulations. As they note in the preamble (page 160), they pulled their definition of sexual assault from the Clery Act’s statutory definition of “sexual assault”, which defines sexual assault as a forcible or nonforcible sex offense under the uniform crime reporting [UCR] system of the Federal Bureau of Investigation [FBI]. The FBI UCR currently consists of the National Incident-Based Reporting System (NIBRS), which defines sex offenses as “[a]ny sexual act including Rape, Sodomy, Sexual Assault With An Object, or Fondling directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent; also unlawful sexual intercourse.” 

The Clery Act regulations; however, use the now retired UCR Summary Reporting System definition of rape, which is a much more inclusive definition, reflecting capturing assault of the vagina and anus and assaults with body parts, objects, and oral penetration in one comprehensive definition.

Because the definitions still capture the same behavior, it will likely just result in your campus policies using the Title IX regulations, but it’s disappointing since we think the definition of rape in the Clery Act regulations would resonate much more with students and employees.

Institutions are required to address a hostile environment on campus, even if it’s resulting from conduct that occurred outside of the educational program or outside the United States: While Title IX still only applies to U.S. institutions, the updated regulations make it clear that institutions have an “obligation to address a sex-based hostile environment under its education program or activity, even when some conduct alleged to be contributing to the hostile environment occurred outside the recipient’s education program or activity or outside the United States”. Because of this, campuses that moved to multiple policies to address incidents that took place outside of the educational program or activity may now reconsider their policy structure. And speaking of policy….

Your institution’s grievance procedures (or “disciplinary procedures” using Clery language) may change: While the previous regulations required a live hearing, the new regulations allow institutions to use other processes, with specific restrictions. For example, the process must have a method for proposing and asking relevant and not otherwise impermissible questions and follow-up questions of parties and witnesses. Even institutions that retain a live hearing will likely make changes to account for areas like the newfound ability to pose questions through the decision maker instead of through advisors of choice as the 2020 regulations required. New policies must be in place by August 1, 2024, so you’ll want to make sure they’re reflected in your ASR this October.

Want to learn more? Join us for Clery Center’s virtual training on May 22: Policy Synergy: Title IX and the Clery Act. Register here.