Title IX and the Clery Act both impose procedural requirements on the way institutions of higher education train the individuals handling sexual misconduct and related policy violations. What is required, and what are best practices? This article will address some frequently asked questions regarding training for your Title IX team, which for our purposes will include your Coordinator(s), investigators, decision-makers (both hearing officers and appeals officers), and informal resolution facilitators.
What training is required under Title IX?
Under the 2020 Title IX regulations, the training of Title IX personnel must include:
- Definition of sexual harassment as defined in 34 C.F.R. 106.30(a);
- Scope of the institution’s education program or activity;
- How to conduct an investigation and grievance process including hearings, appeals, and informal resolution processes, as applicable; and
- How to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.
34 C.F.R. 106.45(b)(1)(iii).
Both decision-makers and investigators must be trained on issues of relevance, including how to apply the “rape shield” protections provided to complainants. 34 C.F.R. 106.45(b)(1)(iii). Additionally, decision-makers must receive training on any technology that will be used at a live hearing. 34 C.F.R. 106.45(b)(1)(iii).
Unlike the required training under the Clery Act, discussed below, the regulations are silent as to how often such training must occur.
What restrictions apply to training offered to your Title IX team?
The 2020 regulations make clear that any materials used to train Title IX personnel cannot rely on sex stereotypes and must promote impartial investigations. 34 C.F.R. 106.45(b)(1)(iii). In its commentary to the 2020 regulations at page 30254, the U.S. Department of Education noted that this prohibition does not forbid training on content that references evidence-based information or peer-reviewed scientific research into sexual violence dynamics, including the impact of trauma on sexual assault victims. However, while such research and data concerning sexual violence may be valuable and useful, it cannot be relied on to apply generalizations to particular allegations of sexual harassment.
What training is required under the Clery Act?
For institutions that must comply with the Clery Act, there are additional training requirements that apply to individuals who conduct grievance proceedings regarding allegations of sexual assault, dating violence, domestic violence, and stalking. Under the Clery regulations, such individuals must undergo annual training on:
- the issues related to dating violence, domestic violence, sexual assault, and stalking; and
- how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability.
34 C.F.R. 668.46(k)(2)(ii).
Note three things. First, because these requirements overlay with Title IX, it is a best practice to provide training on how to conduct an investigation and hearing process that protects the safety of both parties, rather than just the complainants/victims.
Second, because some sexual assault, dating violence, domestic violence, and stalking may no longer fall under the 2020 definition of “sexual harassment” under Title IX, your institution may use non-Title IX procedures to address that conduct, meaning that it may not always be your trained Title IX team that conducts these grievance proceedings. For example, if a sexual assault occurs outside of your institution’s education program or activity, it may still be considered a violation of policy but does not strictly fall within the definition of “sexual harassment” under Title IX and therefore may be referred to a student or employee disciplinary process, as applicable. Institutions should take care to ensure that anyone handling such cases have undergone the necessary training, even if they do not consider themselves part of the Title IX team.
Third, failure to abide by the training requirements may result in a fine against your institution under the Clery Act.
Must I be “certified” to be part of a Title IX team?
No. There is no requirement that any particular level of certification be achieved, or that training be obtained through any particular provider. The only requirement is training on the specific subjects outlined above.
Have I been trained enough?
There is no bright line legal test for how much training is necessary. However, there are two primary considerations for your institution. First, is the individual trained sufficiently to perform their role in the Title IX process within the bounds of the law, the regulations, your institution’s policy, and your institutional ethic of care—the way you wish your campus community to be treated? Second, is the amount of training defensible if your institution’s process is challenged?
With regard to the first, some factors to consider include:
- Do all team members understand the institution’s policy sufficiently to explain it to the parties?
- Do all team members understand and can they apply key concepts such as:
- Your institution’s definitions of prohibited conduct, consent, coercion, force, and incapacitation?
- Do all team members understand how credibility determinations are made, and what information is helpful to make those determinations?
- Have team members evaluated their own biases to ensure they can be impartial in the process?
- Do team members understand the requirements and limitations of their role in the process?
- Can team members ask questions in a manner designed to obtain information in a way that is respectful of the individual being questioned?
- Do team members understand the legal requirements and have a working knowledge of key cases that affect how they implement their role?
If your institution is sued or subject to a U.S. Department of Education investigation, your Title IX team members will likely be asked about their training and experience, and it is helpful if that is a long and substantial conversation that can show a true depth of knowledge.
Best practices include seeking training from a variety of sources and through a variety of mediums to maximize the learning of team members. Tabletop exercises can be helpful once the team is trained, to ensure that different team members will apply the procedures consistently.
Are advisors required to be trained?
There are currently no requirements for institutions to ensure that advisors are trained. If advisors are provided by the institution, the institution may want to consider providing training to institution-provided advisors to help parties elicit the best evidence to the decision-maker for consideration. If advisors are “advisors of choice,” the institution can offer but likely cannot require training for these individuals; to do otherwise may limit which advisors an individual can choose, in violation of the regulations.
Do I have to post training materials?
Yes. The 2020 regulations require the posting of “all materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process.” 34 C.F.R. 106.45(b)(10)(i)(D). Such training materials must also be kept for seven years.
What about educating other members of the campus community about issues related to sexual assault, sexual harassment, dating violence, domestic violence, and stalking?
Stayed tuned. We are preparing a client bulletin on this topic and will have it for you soon!
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