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 Department's 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 Ombuds—essentially 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 records—essentially 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 Release; International Ombudsman Association Comments on Proposed Title IX Changes; Title IX Researchers Seek Input from Higher Ed Ombuds.