May 07, 2020

Work of American University Ombuds Largely Intact After Title IX Rule Changes

Yesterday, the U.S. Department of Education issued long-awaited changes to its Title IX rules, which will give new of protections to people accused of sexual assault on college campuses. The Departments new rules, which go into effect on August 14, were laid out in a 2,000 page memo. The rules explicitly address the role of Ombuds in higher education, prompted in part by public comments from the International Ombudsman Association and others in the Ombuds field. (Title IX only applies to schools that receive federal funds, so the new rules have no impact on Ombuds working in other sectors or jursidictions.) 


Some early observations:

  • Ombuds must be aware that the definition of sexual harassment has narrowed significantly from "unwelcome conduct of a sexual nature" to to the Supreme Court's definition of unwelcome conduct that is "so severe, pervasive and objectively offensive" that it "denies a person equal access to the school's education program or activity" or if "reasonable" people would agree. 
  • The rules also revise the procedures schools must follow when handling sexual harassment claims. Schools will now be changing their practices to comply with the Department's rules and state laws. Ombuds will need to be familiar with these changes to appropriately inform and coach visitors. 
  • The Department declined to exempt higher ed Ombuds from reporting duties of "responsible employees." This would seem to leave the question of whether higher ed Ombuds have a duty to report sexual harassment as a question of law⁠—essentially the status quo. However, the rules seem to indicate that Ombuds in  K-12 schools would be required to report.
The Department encourages postsecondary institution recipients to examine campus resources such as organizational ombudspersons and determine whether, given how such ombudspersons work within a particular recipient’s system, such ombudspersons are or are not officials with authority to take corrective measures so that students and employees know with greater certainty the persons to whom parties can discuss matters confidentially without such discussion triggering a recipient’s obligation to respond to sexual harassment. We note that with respect to elementary and secondary schools, notice to any employee, including an ombudsperson, triggers the recipient’s response obligations. (Report at p. 346.)
  • The Department did not adopt sexual harassment training standards for Ombudsessentially the status quo. (Report at pp. 842-843.)
  • The Department declined to impose new record keeping requirements on Ombuds. Instead, the focus is on the type of records created by university employees regardless of who created the recordsessentially the status quo. 
The Department wishes to clarify that, unless ombudspersons have created records that the Department requires the recipient to maintain or publish, ombudspersons do not fall under §106.45(b)(10). The provision identifies the type of record that must be kept, not the category of persons whose records do or do not fall under this provision. (Report at p. 1411.)
Others including the IOA and ABA are currently analyzing the new rules more carefully and thoroughly, so further information will be coming soon. (Dept of Ed Pres Release.)

Related posts: Harvard Law Case Study Focuses on Ombuds and the 'Dear Colleague Letter'IOA Takes a Stand on Title IX Issues; Watch Senator Question White House Title IX Expert on Role of Campus Ombuds; IOA Releases Memo Providing Legal Grounds for Ombuds Confidentiality in Title IX Matters; IOA Compiles Title IX Resources; IOA Surveys Higher Education Ombuds Confidentiality for Clery Act & Title IX Matters; U.S. Department of Education Suggests Mediation an Option for Title IX Complaints; IOA Posts First Press ReleaseInternational Ombudsman Association Comments on Proposed Title IX Changes; Title IX Researchers Seek Input from Higher Ed Ombuds.

4 comments:

  1. Good breakdown, Tom. Thanks

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  2. I find this interesting:

    "One commenter recommended adding to the final regulations a statement that meeting
    with confidential resources on campus, such as organizational ombudspersons who comply with


    342


    industry standards of practice and codes of ethics, does not constitute notice conveying actual
    knowledge to a recipient. The commenter reasoned that organizational ombudspersons are not
    “responsible employees” under the Department’s current guidance, and that to ensure that
    organizational ombudspersons continue to be a valuable resource providing informal,
    confidential services to complainants and respondents, the final regulations should note that organizational ombudspersons are a confidential resource exempt from the categories of persons to whom notice charges a recipient with actual knowledge.
    Discussion: The Department declines to follow a commenter’s suggestion to delete the sentence of § 106.30 " Footnote 534

    The footnote: The last sentence of § 106.30 defining “actual knowledge” to which a commenter referred, is now the second to last sentence in that section in the final regulations and provides: “The mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the recipient.” (Emphasis added. The italicized portions in this quotation have been added in the final regulations.).

    This too:

    "The Department appreciates the opportunity to emphasize that whether a person affiliated
    with a recipient, such as an organizational ombudsperson, is or is not an “official with authority to institute corrective measures” requires a fact-specific inquiry, and understands the commenter’s assertion that an organizational ombudsperson adhering to industry standards and codes of ethics should be deemed categorically a “confidential resource” and not an official with authority. The Department encourages postsecondary institution recipients to examine campus resources such as organizational ombudspersons and determine whether, given how such ombudspersons work within a particular recipient’s system, such ombudspersons are or are not officials with authority to take corrective measures so that students and employees know with greater certainty the persons to whom parties can discuss matters confidentially without such discussion triggering a recipient’s obligation to respond to sexual harassment. We note that with respect to elementary and secondary schools, notice to any employee, including an ombudsperson, triggers the recipient’s response obligations."

    It seems that Ombuds with charters that specifically state that ombuds have no ability to overturn policy or force anyone to do anything would be well served by this language.

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    Replies
    1. I totally agree. Here's an example:

      Limitations on the Authority of the Office
      * * *
      Designation as Responsible Employees
      The Office and the Ombuds are not considered “responsible employees” by the University for purposes of mandatory reporting under Title IX. The Office does not have the authority to take action to redress sexual harassment/violence. The Office is specifically exempt from the University’s mandatory requirement of reporting incidents of sexual harassment/violence or any other misconduct. The Office will advise any visitors that the disclosure of any incidents of sexual harassment/violence or any other misconduct will remain confidential.

      Also: similar language for "Campus Security Authorities."

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