Author: Ryan Welch
At-A-Glance:
In accordance with the 2020 version of the updated federal Title IX policy, FSU has adopted policy 2-2a with incorporated policy changes to address sexual misconduct.
In order to file a formal Title IX complaint, the event must have occurred on a Florida State campus or building or in a location where FSU “exercises substantial control over the respondent and the context in which the sexual harassment occurs.”
The new regulations relax requirements for mandatory reporting, but Florida State will maintain its standard for all employees to serve as mandatory reporters.
The updated federal Title IX guidelines include protections against quid pro quo sexual misconduct that includes sexual acts directly tied to educational or workplace benefits, unwelcome and objectively offensive conduct, sexual assault, dating and domestic violence, and stalking.
Only the policies and definitions of the new policy 2-2a that contradict those in 2-2 will replace the previous policy. There must be a conflict between provisions for 2-2a to supersede 2-2.
To begin the Title IX process, a completed Discrimination, Harassment, and/or Retaliation Complaint Form must be submitted.
The existing 2-2 protections against sexual misconduct at FSU are more inclusive and will remain in place for cases that do not fall under 2-2a federal Title IX jurisdiction.
The policy 2-2a jurisdiction only includes misconduct as part of an education program or activity that is under control or maintained by the University and takes place on campus or in student housing within the United States.
In August 2020, the Florida State University Board of Trustees officially adopted the updated Title IX policy of the Education Amendments of 1972. Title IX (TIX) serves to protect members of the University community from sexual harassment and discrimination by offering a path to reporting incidents that occur on campus that compromise students’ educational experience. In addition, Title IX includes an investigation process for formal complaints. FSU’s existing Title IX policy, updated in 2018, is known as policy 2-2 and is also called the Student Government Association (SGA) Sex Discrimination and Sexual Misconduct Policy (SDSM). The new policy, which was proposed in order to incorporate changes made by the U.S. Department of Education, is called policy 2-2a.
Does policy 2-2a invalidate the definitions provided in the 2018 version of policy 2-2 or is it simply an addition to the policy?
Only the policies and definitions of the new policy 2-2a that contradict those in 2-2 will replace the previous policy. There must be a conflict between provisions for 2-2a to supersede 2-2. The new policies reflect Florida State’s effort to comply with federal guidelines quickly and efficiently, and there are plans to revise 2-2 to include provisions of 2-2a and clarify procedural standards related to jurisdictional issues on campus. FSU will maintain current sexual misconduct violation definitions for those cases outside of TIX jurisdiction and redefine violations under TIX jurisdiction in compliance with federal guidelines.
The formal Title IX 2-2a complaint process:
In order to file a formal Title IX complaint, the event must be defined under the new 2-2a policy and must meet the location limitations; the policy only applies to Florida State campuses and buildings and “locations, events, and circumstances where FSU exercises substantial control over the respondent and the context in which the sexual harassment occurs.” To begin the Title IX process, a completed Discrimination, Harassment, and/or Retaliation Complaint Form must be submitted. This acts as a formal complaint. The University is responsible for collecting evidence, but both parties may present facts and expert witnesses on their behalf. The parties may also each select an advisor, who may be an attorney, for the hearing process. If unable to personally select an advisor, the University will appoint one. During the hearings, the advisors must cross-examine any witnesses in order to admit their testimony. Finally, the written decision on the case must be sent to both parties, and the decision-maker cannot be the same person who conducted the investigation. Either party can appeal the decision, but appeals must be on the basis of a mistake in the investigatory process, new evidence, or apparent bias of the decision-makers. If seeking to avoid the hearing process, mediation is permitted as an informal resolution except in the case of a complaint involving a student and an employee.
What changes have been made under the new Title IX Policy (policy 2-2a)?
Policy 2-2a, recently passed by President Thrasher, will serve as FSU’s official Title IX policy in conjunction with the previous provisions of policy 2-2. The new regulations relax requirements for mandatory reporting, but Florida State will maintain its standard for all employees to serve as mandatory reporters and the Victims’ Advocacy Program, the University Counseling Center, and the University Health Center will continue to be confidential resources. As part of a recent Student Senate petition, these confidential resources will also be listed on every course syllabus. Under the new policy 2-2a, the University is responsible for dismissing cases that are not included in the Title IX jurisdiction, but existing policy 2-2 allows for these cases to be investigated regardless of the federal guidelines that shaped 2-2a.
What are the new protections under the updated federal Title IX policy?
The updated federal Title IX guidelines include protections against quid pro quo sexual misconduct that includes sexual acts directly tied to educational or workplace benefits, unwelcome conduct that is objectively offensive and denies a person equal education access, sexual assault as defined by the Clery Act, and dating violence, domestic violence, and stalking under the Violence Against Women Act. Under existing policy 2-2, FSU also has protections against gender-based discrimination, sexual exploitation, and other examples of sex and gender-based misconduct that are not included in the 2-2a Title IX policy. The updated 2-2a TIX definitions of misconduct are more specific and require a case to meet more narrow criteria to be considered a Title IX violation. The existing 2-2 protections against sexual misconduct at FSU are more inclusive and will remain in place for cases that do not fall under 2-2a federal Title IX jurisdiction.
FSU also includes gender-based discrimination, sexual exploitation, and other examples of sex and gender-based misconduct within its 2-2 policy. How will these cases be investigated?
The 2-2 policy expands on federal regulations of sexual harassment and includes provisions outside of the updated Title IX. Actions of sexual misconduct that are not covered by the Title IX policy or the new policy 2-2a will be referenced against the existing provisions in 2-2 and investigated through University procedure, not through the formal Title IX process.
To what extent will FSU continue to respond to all reports of sexual misconduct regardless of location?
Federal Title IX regulations have a narrowed definition of the policy’s jurisdiction. The policy 2-2a jurisdiction only includes misconduct as part of an education program or activity that is under control or maintained by the University and takes place on campus or in student housing within the United States. However, even if reported sexual misconduct or sexual harassment is not included in the specifications of 2-2a, FSU will continue to respond to and investigate allegations under the provisions of the 2018 policy 2-2. FSU will address incident reports both on and off-campus and elsewhere. The Student Conduct Code cites the following in terms of off-campus reports of misconduct:
The Code will apply to student conduct that occurs on University premises, at University-sponsored activities, and off-campus as determined by the Student Conduct Authority. Factors that will be considered when determining whether to address off-campus conduct include, but are not limited to, whether the incident is documented by a verifiable source, adversely affects the University community, occurs at a University program or activity, or endangers the health or safety of a student or others.
Under policy 2-2a, the University is required to dismiss cases that fall outside of Title IX jurisdiction. However, these cases may be investigated further.
Under the new federal regulations, a university must “dismiss” a case from the Title IX process if it falls out of jurisdiction, which can mean an off-campus or international behavior. As stated above, policy 2-2 has previously accounted for a wider scope of sexual misconduct than are included in the new federal regulations. At FSU, if a case is dismissed from the Title IX (TIX) process based on jurisdictional issues in policy 2-2a, it will be evaluated through the existing process in policy 2-2.
What is the main difference in the procedural standards of policies 2-2 and 2-2a?
The main difference in the procedural standards under policies 2-2a and 2-2 are that if a case under policy 2-2a goes to a formal hearing, there are now stricter standards for sharing all information, providing an advisor, and allowing for cross-examination. Cases that do not fall under Title IX jurisdiction and are investigated under policy 2-2 are not held to the same standard during hearings and cross-examinations.
Are all reports of sexual misconduct held to the deliberate indifference standard? Deliberate indifference is the intentional ignorance toward reports of violations that results in the liability of the school. It includes failure to investigate reports of known harassment, failure to accommodate complainants, and failure to provide corrective action. Complainants must submit a formal complaint to begin a Title IX investigation, but, under Title IX rules, the University must offer support to complainants regardless of the formality of the complaint. The University must investigate all formal complaints that fall under Title IX jurisdiction. All formal allegations must be met by a formal grievance process to ensure the protection of the constitutional rights of the accused. Additionally, if an allegation does not meet the Title IX definition of sexual misconduct, it is referred to other FSU processes previously established in policy 2-2. Throughout the complaint process, FSU is committed to following the deliberate indifference standard and providing support and subsequent action for formal cases.
The general requirements of the formal grievance process:
The University is updating training for all those involved with the Title IX process in order to comply with the new standards of policy 2-2a. All TIX personnel, investigators, and decision-makers must be unbiased. Respondents have the right to privacy and are presumed innocent until proven guilty. Title IX personnel are trained in impartiality and the important definitions of the updated TIX policy, and all training materials must be posted online.
What provisions related to retaliation will FSU be implementing?
Under FERPA, the school is required to keep both parties’ identities confidential to reduce retaliation, but filing charges against a party for false statements or defamation of character is not considered retaliation. Policy 2-2a prevents charging someone with a complaint outside of Title IX jurisdiction for the purpose of ignoring the privacy rights secured for the accused in TIX allegations.
Torchlight thanks Angela Chong and the Florida State Division of Student Affairs and encourages students to email Ms. Chong’s office directly with any further questions regarding the FSU Title IX policy transition. We also thank guest contributor Victoria Paul, who has been a consistent advocate and resource for Title IX research.
This article is for informational purposes only and does not provide legal advice. Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter. No reader, user, or browser of this site should act or refrain from acting on the basis of information on this site without first seeking legal advice from counsel in the relevant jurisdiction.
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