U.S. Department of Education Acknowledges Confidentiality of Ombuds

The Education Department has issued updates to Title IX, the 1972 law that bars gender discrimination in federally-funded schools and, for the first time, clearly stated that Ombuds are a confidential resource for students. The inclusion of this language is a victory for the International Ombuds Association, which has advocated strongly for modifications to Title IX’s definition of confidential employees in order to better protect students, faculty, staff and other stakeholders.

Here is an except from the new rules, which run to 1,561 pages and mention Ombuds just once:

The employees who qualify as a “confidential employee” under the second category will vary by recipient and based on the employee’s assigned duties. These confidential employees may include, but are not limited to, guidance counselors, organizational ombuds, or staff within an on-campus sexual assault response center. The Department also confirms that these final regulations do not impose any limit on the number of employees a recipient can designate as confidential.

The Department recognizes that some individuals who are confidential employees as defined in proposed § 106.2 may nonetheless be required to disclose certain information by law, such as mandatory reporting laws applying to the elementary school and secondary school context. In addition to the revisions to the first category to address this concern, described above, the Department has added “under this part” to the definition in the second category to emphasize that employees who are designated as confidential by the recipient are so designated for purposes of the Title IX regulations and may not be considered confidential for purposes of other laws.

The new rules contain many other significant changes that will impact schools, colleges, and universities, which Ombuds will need to understand in order to best serve their visitors. For example, under the new rules:

• In-person, adversarial proceedings for allegations of sexual assault are no longer required;
• Extends the interpretation of Title IX to includes pregnant, gay and transgender students and to the use of personal pronouns;
• Broadens the definition of what counts as sexual harassment, so more cases might qualify as serious enough to require an investigation; and
• Prohibit colleges from suspending athletes accused of sexual misconduct while still under investigation.

The Department's update will provide significant guidance for Ombuds who have been having difficult conversations with their general counsel and outside consultants. The immediate impact is in the education sector, but in the long run, it could be influential in all other sectors that have Ombuds. (Dept of Ed Revised Title IX Regulations.)

Related posts: IOA Posts Recommendations on Updated Title IX Regulations; IOA Selects New Executive Director; IOA Lobbies U.S. Department of Education for Recognition of Ombuds; IOA Steps Up Federal Lobbying Efforts; Revealed: IOA's New Lobbyist; U.S. Representatives Back IOA's Efforts to Designate Ombuds as "Confidential Employees" Under Title IX.