The New Regulations

The New Title IX Regulations formalized many terms some institutions were already using.  Victims/Reporting Parties are now known as Complainants.  Respondents/Responding Parties are now known as Respondents.  Interim measures are now called supportive measures.  

Since reports of sexual misconduct can come from a variety of campus community members, OCR defined what a formal complaint is, giving control to a Complainant on whether or not they want to proceed in a formal manner.  

OCR narrowed the scope of what is considered sexual harassment by changing the definition from behavior that was severe, pervasive, or objectively offensive, to behavior that was severe, persistent, and objectively offensive.  This change stems from the Supreme Court's Davis standard.  

OCR also formally defined what is sexual assault by using the Clery definition and added VAWA definitions into behavior that is prohibited under Title IX.  Sexual assault, as defined by Clery, is "any sexual act, directed against another person, without consent of the victim, including instances where the victim is incapable of giving consent" (United States Department of Education Office of Postsecondary Education, 2016, p. 3-4).  According to Clery, there are four types of sexual assault: rape, fondling, incest, and statutory rape.   VAWA offenses now included in the New Regulations are: dating violence, domestic violence, and stalking. 

A new term OCR create was an “Official with Authority.”  An Official with Authority is someone who has the authority to institute corrective measures.  These individuals are mandated, by OCR, to report any acts of sexual misconduct they become aware of.  If an Official with Authority learns of sexual misconduct, they are considered a recipient of “actual knowledge” and thus triggers the University’s obligations under Title IX. 

Within the New Regulations, OCR also defined what an “education program or activity” is.  According to the New Regulations, an education program or activity includes locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurred, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution. 

OCR has limited the scope of what is covered by Title IX.  The New Regulations state that a school’s obligations under Title IX are triggered when the school has:

1. actual knowledge,
2. of alleged sexual harassment,
3. that occurred within its education program or activity,
4. against a person in the United States. 

If sexual misconduct does not meet all those requirements, a school is not obligated to pursue the report as “Title IX.”  However, OCR does permit schools to address the behavior in other institutional policies.

OCR has stated that institutions must provide involved parties their right to due process, which includes the right to cross-examine information.  As a result, OCR made a requirement that all Title IX cases automatically go to a hearing, if there is an investigation.  

During the hearing, Complainants and Respondents must have an advisor for cross-examination purposes.  If a party does not have one, the university must provide them with one.  Complainants and Respondents are not permitted to cross-examine each other or any other person involved in the hearing (witnesses, etc.). 

The New Regulations provide rape shield protections for complainants, deeming irrelevant questions and evidence about a complainant's prior sexual behavior. 

To assist in the relevancy of questions asked during a live hearing, the Decision-Maker will only allow questions that are relevant to be asked and answered and provide reasoning as to why a question may not be asked during a hearing.  If a party does not want to participate in a live hearing, the Decision-Maker must not rely on any statement of that party or witness when reaching a determination regarding responsibility. 

OCR has stated that it is permissible to use technology to hold live hearings, if the university wishes. 

In order to be more transparent, institutions are now obligated to post training provided to individuals who participate in the grievance procedures on their website for public view.

UWL will be utilizing the terms Complainant and Respondent.  This in no way diminishes the experiences of those who experience sexual violence and sexual harassment.  Using these terms within our work not only puts us in compliance with federal obligations, but it also helps to distinguish individuals within a report.  

In the past, numerous individuals reported sexual misconduct.  When UWL learned of these reports, we had the responsibility to investigate cases, sometimes against a Complainant’s wishes or participation, in order to ensure a safe and equitable educational environment for all.  Now, when a report is completed, the Title IX Coordinator will invite the Complainant to a meeting to discuss their options of proceeding with a formal complaint or not proceeding with a formal complaint.  There are still circumstances when OCR has stated that the Title IX Coordinator can file a formal complaint.  However, the decision to sign a complaint despite a Complainant’s wishes that an investigation not proceed, will be scrutinized by OCR for “deliberate indifference.”  In other words, the Title IX Coordinator must not decide unreasonably in light of the known circumstances to sign a complaint, or to not sign a complaint, when a Complainant is unknown or does not want to proceed.  The rules also require a Title IX Coordinator to document the reasons why any response, including the decision to sign or not sign a formal complaint, was not deliberately indifferent. 

UWS and UWL are committed to preventing and responding to sexual misconduct.  Many different behaviors were added to the definition of sexual harassment under the New Regulations.  In addition to addressing all of those behaviors, UWS and UWL have added sexual exploitation to prohibited conduct.  Sexual Exploitation occurs when an individual attempts, takes, or threatens to take nonconsensual sexual advantage of another person.  

While UWL had to name individuals as “Officials with Authority” for OCR purposes, it has not changed its practice with who must report sexual misconduct, should they learn of it.  All UWL employees, with the exception of Confidential Resources, are deemed “mandated reporters” and are required to report acts of sexual misconduct as soon as they learn.  Reports can be made by any of the following ways:

• by phone at 608.785.8043
• by mail at 1725 State St
  131 Graff Main Hall
  La Crosse, WI 54601
• in-person to the Title IX Coordinator
• by email to kostlund@uwlax.edu 
• through our online form

The jurisdictional changes implemented by OCR through the New Regulations has changed what behavior is considered covered by Title IX; it has not changed UWL’s commitment.  UWL can still proceed to investigate any reports not covered by Title IX through its Sexual Violence and Sexual Misconduct Policy. 

Prior to the New Regulations, UWL already participated in live hearings if a hearing was requested.  UWL is committed to maintaining order during live hearings and will dismiss individuals who are not in compliance with its rules of decorum.  All involved parties, especially advisors, are encouraged to read the document prior to any hearing. 

UWL will utilize technology to host all Title IX and Sexual Misconduct cases.  All participants will be sent a link for the scheduled hearing.  If an involved party would like a tutorial regarding the technology platform selected, one can be scheduled by contacting the Title IX Coordinator. 

UWL believes it is important for students, faculty, staff, and community members to see what information our Title IX Investigative Team is trained on.  We encourage you to review training and ask questions when appropriate.