On Campus Podcast – Title IX 2024 Regulation Updates

Ed Butch: Welcome to On Campus with CITI Program, the podcast where we explore the complexities of the campus experience with higher education experts and researchers. I’m your host, Ed Butch, and I’m thrilled to have you with us today.

Before we get started, I want to quickly note that this podcast is for educational purposes only, and is not designed to provide legal advice or guidance. In addition, the views expressed in this podcast are solely those of our guests.

Today’s guest is Dr. Adrienne Lyles. Dr. Lyles is the executive director for Equal Opportunity and Title IX coordinator at the University of Cincinnati. Welcome to the podcast.

Adrienne Lyles: Hello, Ed. It’s a pleasure to be here.

Ed Butch: Wonderful. Thank you. And today’s discussion is going to center around the new Title IX regulations that were released in April 2024. But before we jump into the topic, can you tell our listeners a little bit more about yourself and your career path?

Adrienne Lyles: Sure, I’m happy to. So my name’s Adrienne Lyle. My pronouns are she, they. I’m at the University of Cincinnati. Next month in July of 2024, will mark my third anniversary of employment here at UC. I currently serve as executive director for Equal Opportunity and Title IX coordinator. I’ve actually held this particular role since January. When I arrived in June of 2021, I was Title IX coordinator, but at that time, I was executive director for Gender Equity and Inclusion.

So since I arrived here at UC, we have merged offices, the office that just handled sex, gender matters, and then our office that handled all other protected classes. We merged those two offices as of January of 2024. So in my role, I obviously manage everything having to do with sex, gender, and in fact, anything having to do with discrimination on the basis of any protected class.

In addition, I manage our equal opportunity planning and affirmative action planning platform of services here at UC as well. Prior to coming to UC, I was the associate director for Equal Opportunity and senior deputy Title IX coordinator at Iowa State University. So I was in that role for a year, and that was really my entree into the world of Title IX. I had a varied career path. So I do have a PhD in philosophy, master’s degree in philosophy from the University of Colorado. So my areas of expertise are existentialism and feminist philosophy and intersectionality.

Then after teaching for a while, I decided to go to law school. So I attended Notre Dame Law and got my law degree from Notre Dame. So I was teaching for a really long time, started a law practice. I was at St. Mary’s College for a while. So in that role, I directed a social justice program. I had my own law practice. I was just doing lots of things. Taught philosophy forever. And this opportunity opened up for me at Iowa State back in ’17.

And it was this opportunity for me to do all the things I like related to law and philosophy and social justice stuff in one space, and just really fell in love with the work. As our listeners will know, if you know anything about Title IX, the work is really hard and it’s really heavy. But it’s an area in which I feel like I am really challenged to use my full skillset and just really, really love it.

So thank you for the opportunity to share a little bit about my path. I think folks come to this work for lots of different reasons, and that’s another reason why Title IX is just a really important area of work. The more different professions we can pull from, I think the better it is for the clients that we serve.

Ed Butch: Yeah. Yeah, definitely. Well, thank you for that background. Such an interesting path, and I feel like so many in higher ed, you’re all over the states, so that’s always a fun thing to see where everyone has been landing. And obviously, now you’ve been in this for quite a few years. So with that, for our listeners that maybe aren’t quite as familiar, can you give a brief history and overview of Title IX?

Adrienne Lyles: I’m happy to. So Title IX refers to Title IX of the Education Amendments of 1972. And this was signed into law by President Richard Nixon, and it prohibited sex discrimination in any education program or activity receiving any type of federal aid. Title IX regulations regarding athletics were issued in 1975. It’s been a lot of years. In 1980, the US Department of Education was given oversight of Title IX through its Office for Civil Rights. So Title IX practitioners would be very familiar with Office for Civil Rights, what we call OCR.

And for many years, Title IX was really thought of as in relation to athletics. This was really not because of the regulations themselves, but interestingly, had much more to do with the lawsuit filed by the NCAA first, challenging the legality of Title IX, and its application to athletics. There was a lot of tension around Title IX athletics, and listeners may know that we are continuing to really navigate the relationship between Title IX and athletics right now.

So over the years, Title IX has been supplemented by a lot of federal guidance, in particular, OCR or Dear Colleague letters. And these letters are an opportunity for OCR to give us guidance and explain the different kinds of legal obligations that schools have for addressing discrimination. So when we talk about Title IX, it’s not just the law but a lot of these Dear Colleague letters as well.

So Title IX was basically just guided by Dear Colleague letters until August 14th of 2020. And so as listeners may know then Secretary of Education, Betsy DeVos, enacted a bunch of changes to Title IX regarding sexual harassment and misconduct. Schools are today operating under those 2020 regulations. And we know that on April 19th of this year, the Department of Education announced a new rule, what we call, the 2024 Final Rule, specifying obligations for how recipients of federal financial assistance have to respond to sex discrimination.

So regardless of iteration over the years, Title IX prohibits discrimination in any education program activity. So that is from recruitment and admissions to graduation and academics, housing, financial aid, scholarships, sports, student clubs and organizations, all education programs or activities, and it covers students and employees.

Ed Butch: Great. Fantastic. Thank you for that overview. That was very thorough and really great to hear. So obviously, through these Dear Colleague letters and these other updates in 2020 and now these newest ones, there’s been updates throughout the years. And in your opinion, what have been the reasons for those updates that we’ve seen since the 1970s?

Adrienne Lyles: I would say that the short answer is that different presidential administrations have different priorities, and accordingly, they impose different standards and duties on institutions related to sex discrimination.

Ed Butch: Great. And can you explain a little bit to our listeners? I know that we’re just getting into this as of June, but can you explain a little bit about the new regulations that were released and when they take effect?

Adrienne Lyles: Sure. So briefly, back on July 12th of 2022, Biden’s Department of Education released what is called a Notice of Proposed Rulemaking. An NPRM is a public notice that’s issued by law when a federal agency wants to add or remove or change a federal rule or a regulation. It’s like a first draft of a regulation, lets the public know what the agency, in this case, the Department of Education, is considering, and provides an opportunity for public feedback.

So importantly, in regard to my last answer, when we think about why would regulations change, if an administration changes and Title IX changes again, we will go through the same NPRM process. The 2022 Title IX, NPRM’s public comment period closed way back on September 12th of 2022. Then the Department of Education had to go through and consider all of the different public comments it received about the proposal.

Fast-forward, slow-forward to a year and a half later, on April 19th, just weeks ago, the Department of Education released a final Title IX rule, which takes effect on August 1st, 2024, which is 59 days from the date of this recording.

Ed Butch: Interesting. All right. Wow. So how are these really different from previous regulations then?

Adrienne Lyles: So we can start with the 2020 regulations which expire at midnight on August 1st. So let’s start with where we’re at today.

Ed Butch: Sure.

Adrienne Lyles: The 2020 regulations were the first to require a presumption of non-responsibility. So that is a presumption that the respondent is not responsible for the alleged misconduct. Also, significant from the 2020 regulations was the requirements of a live hearing in which both parties need to be present. The 2020 regulations required that the parties have advisors who asked questions of parties and witnesses in those hearings.

The 2020 regs require that a complainant file a written formal complaint to initiate the Title IX grievance process. And the 2020 regulations did not cover any alleged conduct occurring outside of the United States. So that’s where we’re at today, and those are some of the things that might be changing. So the new regulations have some significant differences from the 2020 regulation.

I think that we can understand the 2024 final rule is a combination of the 2020 regulation, the 2011 Dear Colleague letter, and then some additional new definitions and obligations. Overall, I would say that there are two overarching differences from the 2020 regulations. First, schools have been given a lot more flexibility regarding how to structure their grievance process and procedures.

Second, as the Department of Education stated in its press release announcing the 2024 final rule, the new regulations, “To protect against all sex-based discrimination and harassment.” So related to these overarching differences, I would say some specific changes include the following. First, there is an expanded geographical jurisdiction. Under the new 2024 rules, schools must now respond when a sex-based hostile environment is alleged to have occurred under its education program or activity, even when some conduct occurred outside of the school’s program or activity or even outside of the United States.

The new regulations also include some expanded definitions of sex discrimination, which, in effect, expand the scope of conduct covered by Title IX. So we can think about this in terms of sex discrimination and sex-based harassment. Sex discrimination, under the new rule, includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy-related conditions, sexual orientation and gender identity.

Sex-based harassment, under the new regs, includes quid pro quo harassment, hostile environment harassment, and specific offenses including sexual assault, dating and domestic violence, and so on. So that first bucket of change is really about definitions and jurisdiction and scope. There’s also a lot of flexibility and discretion around grievance procedures. This includes the option to have sex discrimination and sex-based harassment, those two definitions I just shared.

Those can now be addressed through one set of grievance procedures or two different sets of grievance procedures. So schools can have one policy with one grievance process, or they can have one policy with two grievance processes. I would note that some schools are also separating pregnancy and related conditions out and doing a separate policy. That is what we are going to be doing at UC.

Ed Butch: Oh, interesting.

Adrienne Lyles: In addition, it’s no longer required that a complainant sign a formal complaint in order to initiate grievance procedures. Instead, schools must respond promptly and effectively whenever it has any knowledge of conduct that reasonably may constitute sex discrimination in its program or activity. So again, that’s a lot broader than the 2020 reg. And then just a few additional changes to note for listeners.

There are increased privacy rights for parties. There is a requirement for quicker grievance process and resolution timeline. There’s an increase in Title IX coordinator obligations. There are differences in reporting and notification requirements, an increased emphasis on supportive measures, and post-secondary institutions are no longer required to have those live hearings. We can talk more about that, but I think that basically summarizes some of the major changes you read.

Ed Butch: Yeah. Wow. That seems like a lot. And I’ve worked at multiple institutions previously and, of course, took all of our required Title IX trainings and all of that. But I would’ve thought that some of these things were already in place, especially when you were talking about geography and the fact that they weren’t.

I was involved in a lot of international education. So my thought is, “So when a student was studying abroad, they weren’t necessarily covered by this.” And it’s like, “Wow, I would’ve never thought that. I would’ve assumed that they were.” So this is very interesting to hear.

Adrienne Lyles: It’s a great point. And so what a lot of schools did when 2020 basically narrow the jurisdiction of Title IX, and so schools could have an additional supplemental policy. So at UC, for instance, we get a separate sex, gender misconduct policy to cover all of those cases, like you mentioned, that might not be in the domestic US, so they can study abroad.

Some schools simply addressed the non-Title IX misconduct in a student code of conduct or other handbooks. So there were lots of ways that schools managed to cover all that misconduct that was not covered under the 2020 regulation.

Ed Butch: Okay. Wow. Thank you. That was fantastic. So of course, a lot of our listeners, they might be in similar roles to you at their institutions and trying to really figure out how this is going to impact their work and everything. So how do you really see these new regulations impacting the way that institutions handle sexual harassment and assault?

Adrienne Lyles: Well, to the topic we just covered, some schools may already be doing all of the things that are not required under Title IX. It just depends on the institution and how they navigated those 2020 regs. I would say that institutions are now required to respond to more kinds of sex discrimination. And again, to do so, even when alleged misconduct occurs outside of the US, there are differences in training requirements, and this is a big one for schools.

So institutions are actually now required to train all employees. Under the current regulations, training has to be made available. Now, all employees have to be trained, and that includes confidential and non-confidential employees. Another change to the way educational institutions might handle sexual misconduct, Title IX coordinators are now required to evaluate every allegation of sex discrimination in order to determine appropriate next steps, including whether the Title IX coordinator themselves is going to initiate a complaint.

Again, some schools were already doing that, but it is now required under the 2024 reg. And I would say one additional emphasis for institutions is related to pregnancy and related condition. So the expanded protections under Title IX. Title IX always covered pregnancy and related conditions. It’s just that schools didn’t really do it. Some schools did [inaudible 00:16:03] the additional explicit pregnancy protections in Title IX.

And then pregnancy protections and lots of related federal law. So that include the Federal PUMP Act, the Pregnant Workers Fairness Act, the Pregnancy Discrimination Act, which amended Title VII, along with any state legislation related to pregnancy, schools really need to think about how to ensure protections related to pregnancy for all of their students and employees.

Ed Butch: Yeah, yeah. Wow, fantastic. Thank you. You mentioned a little bit about some of the changes in the investigative and hearing processes and things like that, so I wanted to get a little bit more into that. So what is the impact on reporting and investigations and hearings regarding these new regs?

Adrienne Lyles: So we can start with reporting. As I mentioned, the new regulations just have different reporting requirements, and basically, the 2024 rule has created this multi-tiered reporting obligation structure based on an employee’s duty. So basically, administrators, faculty advisors, and employees who have the authority to institute corrective measures, those folks must report alleged sex discrimination to the Title IX coordinator. It’s this first bucket of employees.

Second bucket is other non-confidential employees have to either report the Title IX coordinator or provide the Title IX coordinator’s contact information and information about the school’s grievance procedures. That’s the second bucket. And the third bucket of reporting is confidential employees are now required to provide the Title IX coordinator’s contact information, information about the grievance procedures to clients.

So again, I think that this is designed to just ensure reporting is happening so that Title IX coordinators can appropriately respond. In terms of investigations, there’s not a lot of difference here in terms of how investigations operate. The new regs do though require that institutions state in their policy the timeline for every major step of the grievance process. So we’ve always had to be timely in our grievance procedures.

But the new regs specify that the four major stages of the Title IX grievance process are: evaluation, investigation, determination, and appeal. And schools need to break that down to the days that are reasonably expected for each. And then there’s a wording change and expectations related to investigations. So under the current 2020 regulations, investigations are required to be prompt, equitable, and impartial.

Under the 2024 regulations, institutions have to provide for an adequate, reliable, and impartial investigation. So it’s up to schools to figure out what that means for their institution. And then there is a big change related to determination. The 2020 regs require that an investigator be a different person than the adjudicator. So under 2020 regulations, again, we have this live hearing model, and I mentioned we no longer have to do a live hearing model.

Schools have discretion in terms of what they want it to look like. Under the 2024 rule, there are basically three different modes of adjudication that are available to school. First is what I call investigator as adjudicator. Some folks might know this as the “single investigator model,” which doesn’t make sense to me. I call it the investigator’s adjudicator model. And lots of schools were using that prior to the 2020 regs. Depending on their jurisdiction, they might go back to that.

The second mode of adjudication is adjudication by hearing, which schools have been utilizing during the 2020 regs. And then the third mode is adjudication, no hearing. And this option allows parties to propose questions they want asked by an investigator or a decision-maker during individual meetings. And this is medium mode. So schools who are interested in that will need to look closely to the new regulations for appropriate grievance procedures and expectations related to that.

Ed Butch: Interesting. So with that last one, that no hearing, then it’s more of like they’re still meeting, right? So they’re having one-on-one meetings, but there’s not a larger hearing then. Is that right?

Adrienne Lyles: That’s exactly right. It can happen in one meeting, it can happen over emails. There can be an investigator and a single decision-maker. So it’s just opportunity where “cross-examination” is still happening. The parties still have the right to review, inspect, respond to evidence. But they do it. It can be in a very constricted timeline. You can get that all done in a day, but you have to have a hearing panel.

Ed Butch: Interesting. Okay. So as there potentially is more work based on the new regs, there’s also maybe some easier and faster ways to get the work done then as well on that back-end. Okay.

Adrienne Lyles: Absolutely.

Ed Butch: Interesting. All right, great. Thank you. Well, of course, when it comes to Title IX, we talk a lot about survivors and those that are accused. And I wonder about what are the implications of these regulations for survivors of sexual harassment and assault and as well as those that are accused of the misconduct?

Adrienne Lyles: Sure. So the language I’ll use in responding to this question, we use the language of complainant and respondent. So complainants are those folks who are alleged to have experienced misconduct, and respondents are those who are alleged to have engaged. So first and foremost, I think, hopefully, the new reporting and notification requirements will ensure that all potential complainants are given information about available resources, supportive measures, opportunities for support, and information about all the available formal and informal resolution options.

So first of all, we hope that the new regs give full access to support [inaudible 00:21:54]. Secondly, the new rule does aim to ensure that all persons, including students and employees, receive appropriate support if they experience sex discrimination in school. So I think in terms of implications, it really should make robust the way that we are supporting the people in our communities.

The rule aims to ensure that schools procedures for investigating and resolving complaints of sex discrimination are accurate and fair for all involved. So importantly, we really want to support complainant and we have to equitably support respondents too. And then that finally will require schools to provide supportive measures to both complainants and respondents.

So for a respondent for whom formal grievance procedures have been initiated, or the informal resolution process, if it has been initiated, schools are now required to provide supportive measures to all parties. And that’s another due process, but more importantly, supportive option for our complainant and our respondents.

Ed Butch: Definitely, definitely. It’s good. Yeah, you want to make sure that everyone has that advisor and advisory figure to make sure that everything is going well for them. Good, good. So what do you really see as the impacts of these regulations really regarding the culture of prevention and response on campuses?

Adrienne Lyles: That’s a great question. Well, the Title IX Final Rule does not delve into violence prevention. It requires schools to not only end alleged sex discrimination, but also prevent its recurrence, and remedy its effect. So there’s that violence prevention requirement piece. Schools have to use any information that they learn of sex-based discrimination in those prevention efforts.

So I’ll go back to these new regulations require Title IX coordinators to really be on point, and monitoring and identifying any potential patterns of sex discrimination in their institutions. So gathering more information and then using that information in prevention and responses. The Violence Against Women Act or VAWA has a bunch of grant programs that are designed to develop school’s capacity to reduce sexual assault, dating violence, domestic violence, and stalking.

So I want to remind listeners to look to VAWA for those expectations and resources for violence prevention programming and efforts. And then I would say also that the Final Rule, with its emphasis on supportive measures and informal resolution and flexibility related to the grievance procedures, just provides a lot more opportunity for us to empower and support our students.

Ed Butch: Yeah, great. Fantastic. Thank you. A lot of our listeners may be helping go through their procedures and rewriting regulations and things like that. So do you see a role for advocacy groups or legal experts in other institutions playing a role in interpreting and implementing these new regulation?

Adrienne Lyles: I think this long delay between that Notice of Proposed Rulemaking, and the Final Rule dropping back in April, really speaks to that, right? So advocates, legal experts, allies, everybody had the opportunity to make comments on the proposed rule. And in fact, the NPRM drew a record-breaking number of public comments. It was over 240,000. And then the Department of Education had to read through, write and address every single one of those comments.

So the Final Rule was delayed, but it speaks to the importance of advocacy groups, legal experts, and others making their voices known. So now that the regs are here, advocacy groups can support their clients by collaborating with institutions to educate our communities about the new regs, and most importantly, to provide critical support for individuals who’ve been affected by sex discrimination. Advocates can support schools by helping provide critical training related to violence prevention.

There’s just so many opportunities here for partnership and support of clients. And most importantly, I think advocates can focus crisis intervention and prevention advocacy on sexual assault, dating and domestic violence and stalking, and again, do so in support of all individuals regardless of sex or gender. And then, finally, in terms of legal experts, I would say that they have an important role to play, ensuring critical information related to case law and to state legislation that can help inform institutions as schools are moving forward in implementing the new regulation.

Ed Butch: So this is a lot of information, and I think it was, I don’t know what, a 1,500-page report or something like that that you had to read through. So good on you for that. But for students and faculty staff and administrators that either want to learn more about implementation or about Title IX in general or whatever that might be, are there some resources that you would recommend for them?

Adrienne Lyles: Sure. Well, there’s lots of resources readily available like this series, in which experts are just sharing knowledge around overviews of the new regulation. Related to your last question, everyone should be informed about campus and community advocate, about crisis intervention, about confidential resources, starting with their own schools and communities. So every institution covered by Title IX have information to share. So listeners should be sure to reach out to their Title IX offices.

Those are located in different places on different campuses. But every school’s got a Title IX coordinator, and that Title IX coordinator can share what that school’s procedures are. So this discretion, it’s two sides of a coin. The goodie is grievance procedures can be tailored to individual school, their needs, their communities. But that flexibility also means that we can’t assume about what a school’s grievance procedures are going to be.

So reach out to your Title IX office, know where to report concerns related to sex discrimination, know what to expect when you make a report, know what supportive measures are available, resolution options are available, empowering ourselves with that information. Then, if a friend or a colleague experiences potential misconduct, we can best support them. Look, students and faculty staff and administrators are going to be getting training in the fall on Title IX.

Be mindful that the mandatory training is coming. We are all developing it this summer, and it’s all going to go live on August 1st, no matter where you are. And then for Title IX administrators right now, the most important resources are those that have been provided by the Department of Education, though everyone should, if you’re in Title IX, have reviewed the Final Rule, which is published in the Federal Register. There is an accompanying fact sheet. You got to read that.

OCR has a resource for drafting Title IX policies and grievance procedures. It’s a really helpful document. If you haven’t reviewed that, please do so. And then I mentioned athletics at the beginning. So the new Title IX role, it does not cover athletics. We are still waiting for Title IX athletics regulations. So Title IX folks should please review the Title IX athletics NPRM on sex-related eligibility criteria for male and female athletic team. That was published on April 13th, 2023. But again, it’s not moved forward.

Ed Butch: Great. Those are all fantastic. Thank you. And I will say also, for those of you that don’t know, and at least in my experience, if you don’t know where your Title IX office is on campus, it’s usually either in HR or student affairs. So start there. And I will also put in a little plug for CITI because we are releasing a Title IX series this fall as well with a course for faculty and staff as well as for students.

So look into that as a possible resource for your campus as well. So with all that great information, I always like to end in terms of looking ahead a little bit and seeing how you might project the future. We are looking ahead. Do you see other potential areas of revision that maybe would emerge based on implementation of these regulations?

Adrienne Lyles: So we are all operating in a political context. So different states might be taking different actions. And so I would encourage Title IX coordinators to work with their council. This is not to say that Title IX is being changed, it’s just whether and how to implement the new regulations. I think we really need to be doing so in close consultation with your council. I think that there are a couple areas of clarification that the Department of Education is going to be providing moving forward, especially in terms of athletics.

So first its eligibility. The final rule does not address that critical question regarding transgender athletic participation. The department has stated that its rulemaking process concerning Title IX application to sports is “ongoing.” So we need to just keep an eye out for what comes next there.

I think there’s a second critical issue regarding athletics, and that is in regard to how NCAA revenue sharing and name, image, likeness or NIL compensation should be paid to keep schools in compliance with Title IX. If universities are going to exert control over revenue sharing and athletics, they have to address pay equity. So again, I would also really encourage Title IX folks to work closely with athletic directors and again, with council on these topics.

Ed Butch: Yeah, that’s great. I wouldn’t have even thought about NIL payments and things like that, but that’s a really great point. So thank you for that. Well, once again, this has been fantastic, some great information. You’ve really, really summarized it well, and I appreciate your time in informing our listeners about the new regulations.

Adrienne Lyles: My pleasure. Thank you for the conversation.

Ed Butch: Of course. And that concludes our conversation for today. And once again, I’d like to thank Dr. Lyles for sharing your expertise with us.

Adrienne Lyles: Thank you.

Ed Butch: I invite all of our listeners to visit citiprogram.org to learn more about our courses and webinars on research, ethics, compliance, and higher education. I look forward to bringing you more expert guests to discuss what’s happening on campus.