Understanding Changes in Title IX Regulations
This content delves into the revisions of Title IX regulations under the Trump and Biden administrations, highlighting key shifts in policies related to reporting, enforcement, and protection of LGBTQ students. It discusses the impact on institutions, the confusion surrounding enforcement, and provides guidance on how to handle assault reports on campus.
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Sexual Assault & Molestation (SAM) - Revisited Cindy Smail, Loss Control Consultant Marsh Risk Consulting
Todays Discussion Points Title IX Reporting The Market We Can t Risk Management Our Way Out Carrier Concerns What to Do? 1 MARSH RISK CONSULTING
By the Numbers 1 in 4 90%+ 1/3 $127 Billion $127 Billion 8 in 10 2 MARSH RISK CONSULTING
Title IX Under Trump New regulations take place, replaced 2011 Dear Colleague Letter (August 2020) Allegations of misconduct off campus not considered, except Greek and university program events Live hearings and cross-examination of those alleging misconduct clear and convincing standard replaces preponderance of evidence against the accused Victims' rights advocates worry about discouraging reporting Advocates of accused praise ensuring evenhanded responses Dept. of Ed. General Counsel publishes a memorandum saying LGBTQ students are not protected under Title IX (January 2021) MARSH RISK CONSULTING
Title IX Under Biden Biden issues Executive Order - Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (January 2021) Comprehensive review of Title IX announced (April 2021) Public hearing to gather information of improving Title IX enforcement (May 2021) Announces Title IX's prohibition on the basis of sex to include discrimination based on sexual orientation and gender identity (June 2021) Question and answer guidance issued (July 2021) 4 MARSH RISK CONSULTING
Enforcement Confusion The Education Department could announce that it will not enforce DeVos s rule Even unenforced, DeVos s rule would still have the force of law Institutions not following the law could face civil suits 5 MARSH RISK CONSULTING
What to Do When a Student Reports an Assault to You Know your institution s policy in advance so you ll know how to react and support the survivor Person is not a Minor Follow process for reporting on campus Person is a Minor On campus report Law enforcement report 6 MARSH RISK CONSULTING
What to Do When a Student Reports an Assault to You Listenand provide emotional support. Don t judge or try to fix the problem and know the survivor will likely blame themselves. Keep the information confidential, unless your campus policy requires otherwise. If reporting is required, tell the survivor that you must report. Know the survivor may have any emotional reaction and everything in between. emotional reaction from screaming to being very calm Allow the survivor to m aintain control and make decisions on how the discussion flows and what happens next. Don t project how you would feel in that situation onto the victim. Each person will react differently. Don't ask questions that could make the survivor think they are to blame drinking? ). blame(e.g., Were you Let the discussion flow at the survivor s pace. Make referrals for help. 7 MARSH RISK CONSULTING
Bordereau Reporting Report of sexual misconduct to general liability insurers Implemented by M.U.S.I.C. Quarterly reporting MARSH RISK CONSULTING
Education Market at 7/1/21 Eye of the Storm Continued increase in rates/premium MUSIC s Total Excess Liability premiums UP 41% Total limits remained at $47M Restricted or excluded coverage Reinsurers required full COVID exclusions even on retained layers SAM excluded on top $10M of MUSIC s $47M limits Global market development Conservative underwriting - underwriters expect another MSU More questions on renewals and especially on new business Terms and conditions controlled at executive levels of Insurance Companies expect another MSU 9 MARSH RISK CONSULTING
We Cant Risk Manage Our Way Out of SAM Issues Updated policies, procedures and training Ensure Title IX Coordinators, Investigators, and Adjudicators have the training they need on their role and your policies Train faculty and staff on their reporting obligations and the options for confidential reporting Be ready to address concerns about the follow up and resolution from the accuser Misconduct policies for resolving SAM complaints need to be as clear as possible Providing bystander training and programs to help campus members recognize potentially violent situations and act to prevent harm and defuse the situation 10 MARSH RISK CONSULTING
We Cant Risk Manage Our Way Out of SAM Issues Ensure students understand your institution s definition of consent Provide concrete real life examples of prohibited conduct Training sending emails and check the box affirmation isn t enough train in person in addition to online and make it interactive document understanding of learning Keep a record of training, publications and communications Implement multiple, anonymous reporting channels Emphasize anti-retaliation and whistle blower policies Plaintiff attorney s bring out the Reptile Theory 11 MARSH RISK CONSULTING
Carrier Comments Carrier concerns Carrier concerns are still very loud There is still extreme scrutiny on claim history and potential exposure Ability to obtain coverage an immeasurable risk Ability to obtain coverage in Higher Ed is increasingly becoming Insurers require SAM Policies, with specific required content and communications Bordereau Reporting continues Well written policies and contracts policies and contracts remain critical 12 MARSH RISK CONSULTING
Bystanders Have Power Will They Use It? 13 MARSH RISK CONSULTING
What Can You Do? Share this presentation with others on campus Stay updated keep up on new regulatory requirements, campus policies and campus efforts. Have regular conversations with your Title IX office Communicate the risk discuss how the current environment and SAM cases have impacted the insurance renewal Create an ongoing discussion on SAM and its prevention. You talking about it magnifies the conversation Get/stay involved promote and show up at bystander and other events on campus Promote comprehensive prevention programming focus on more than first year students and new employees Faculty can consider adding a statement about sexual violence to course syllabi Everyone on campus should work to reduce alcohol impacts Speak out against attitudes and messages that minimize sexual assault 14 MARSH RISK CONSULTING
Flip the Script Source: Sexual Violence Centre Cork, Home | Sexual Violence Centre Cork 15 MARSH RISK CONSULTING
References & Resources Tyler Kingkade, Biden Administration Announces Next Steps in Overhauling Title IX Campus Sexual Assault Rules, NBC News, April 6, 2021, Biden administration announces next steps in overhauling Title IX campus sexual assault rules (nbcnews.com) Samuel C. Bell, Bystander Program Effectiveness: A Review of the Evidence in Educational Settings, SpringerLink, October 19, 2019, Bystander Program Effectiveness: A Review of the Evidence in Educational Settings (2007 2018) | SpringerLink Nevens, Lauren, M.U.S.I.C. Loss Control Discussion Interview, September 24, 2021. Questions and Answers on the Title IX Regulations on Sexual Harassment, US Department of Education, July 20, 2021, Questions and Answers on the Title IX Regulations on Sexual Harassment (July 2021) (PDF) (ed.gov) Resources for LGBTQI+ Students, U.S. Department of Education, October, 2021, Resources for LGBTQI+ Students (ed.gov) Sexual Assault Response Team Toolkit, National Sexual Violence Resource Center, Sexual Assault Response Team Toolkit | National Sexual Violence Resource Center (NSVRC) Sexual Assaults on College Campuses Involving Alcohol, National Sexual Violence Resource, Sexual Assaults on College Campuses Involving Alcohol. U.S. Department of Education Confirms Title IX Protects Students from Discrimination Based on Sexual Orientation and Gender Identity, U.S. Department of Education Website, Press Office, June 16, 2021, U.S. Department of Education Confirms Title IX Protects Students from Discrimination Based on Sexual Orientation and Gender Identity | U.S. Department of Education 16 MARSH RISK CONSULTING
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