Title IX Regulations & Policy

On May 6, 2020, the U.S. Department of Education released extensive new regulations governing campus response to sexual harassment under Title IX, the federal law that prohibits discrimination on the basis of sex in K-12 and higher education. The new regulations make significant changes to how colleges and universities are required to respond to certain allegations of sexual misconduct and interpersonal violence. Institutions were required to implement these changes by August 14, 2020. To comply with that mandate, the University published its Policy on Prohibited Sexual Harassment Under Title IX (the “Title IX Sexual Harassment Policy”) on August 14.

Under the new Title IX regulations, when a school’s Title IX Coordinator or certain other officials receive a report of potential sexual harassment (as that term is now defined under Title IX), the institution is required to implement reasonable and appropriate supportive measures to restore or preserve equal access to educational programs or activities and to protect the safety of the parties. When a school receives a formal request for action (called a “formal complaint” in the new regulations), the institution must initiate a formal process of investigation and adjudication of the alleged sexual harassment. The regulations require certain elements for that formal investigation and adjudication process.  The new regulations also require the publishing of materials used for training Title IX Coordinators, investigators, decision-makers, and persons who facilitate informal resolutions. Those training materials are listed below:

• Title IX Training for Appellate Officers
• Title IX Training for Coordinators
• Title IX Training for Hearing Officers
• Title IX Training for Investigators
• Student Conduct Institute (SUNY)
• EOC Panel Training

The regulations, and therefore the new Title IX Sexual Harassment Policy, define “sexual harassment” as conduct on the basis of sex that satisfies one or more of the following:

An employee conditioning educational benefits on participation in unwelcome sexual conduct;
• Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the educational institution’s education program or activity; or
• Sexual assault as defined in the Clery Act; or dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA).

In addition, the conduct must have occurred:

• in the United States,
• in a location, event, or circumstance over which the University exercised substantial control over both the Responding Party and the context in which the behavior occurred at the time of the alleged incident (this includes any building owned or controlled by a student organization that is officially recognized by the University), and
• on or after August 14, 2020.

If all of these elements are met, the conduct will be addressed under the new Title IX Sexual Harassment Policy, rather than the Policy on Prohibited Discrimination, Harassment and Related Misconduct.

The provisions and prohibitions of the Policy on Prohibited Discrimination, Harassment, and Related Misconduct largely remain unchanged. It still prohibits discrimination and harassment based on age, color, disability, gender, gender expression, gender identity, genetic information, national origin, race, religion, sex, sexual orientation, or veteran status as well as interpersonal violence, stalking and retaliation. The difference is that any sexual harassment that falls under the definition and jurisdiction of Title IX sexual harassment, will now be addressed under the Title IX Sexual Harassment Policy.  Sexual harassment not falling under the definition of Title IX sexual harassment will continue to be addressed under the PPDHRM Policy.

The sexual misconduct prohibitions in the PPDHRM Policy cover a broader range of conduct than what is now permitted to be addressed in a Title IX process. The new regulations permit institutions to address misconduct that falls outside of the parameters of Title IX through different conduct processes. Therefore, the Title IX Sexual Harassment Policy addresses the scope of misconduct defined by the new Title IX regulations, and the PPDHRM Policy addresses other sexual harassment, interpersonal violence, and stalking that has continuing adverse effects on our campus, but is not covered by the Title IX Sexual Harassment Policy.

Yes. The new regulations permit institutions to address conduct outside of what the regulations say Title IX covers through existing conduct policies and procedures. The University will continue to prohibit, respond to and, when appropriate, adjudicate reports of sexual misconduct, interpersonal violence, and stalking, regardless of where the reported misconduct occurs if the conduct has continuing adverse effects on campus, including behavior that may fall outside the Department of Education’s definition of sexual harassment.

Yes, there are some procedural details in the new Title IX Sexual Harassment Policy that are different from the procedures associated with PPDHRM Policy. The main differences are:

• Investigation: In the Title IX process, the investigator(s) will conduct interviews and gather evidence but will not weigh the evidence or make a determination as to whether there has been a policy violation. Rather, there will be a live hearing in front of a hearing panel, and the hearing panel will weigh the evidence and make a determination.
• Hearing: In the Title IX process, cross-examination of the other party and any witnesses will be conducted by the party’s advocate of choice. If a party does not have an advocate, the University will provide a hearing advisor for the limited purpose of conducting cross examination on their behalf.
• Appeals: Either party can appeal the outcome of a hearing if the appeal is based on one of three allowable grounds: procedural irregularity that affected the outcome, new evidence that was not reasonably available at the time of the determination that could affect the outcome, and/or the Title IX Coordinator, investigator(s), or Hearing Panel had a conflict of interest or bias that affected the outcome.

Most importantly, the University will continue to provide support and resources to members of our campus community who are affected by sexual harassment, regardless of which policy applies to their report. In addition, the University is maintaining several aspects from the PPDHRM Policy in the Title IX Sexual Harassment Policy.  These include, but are not limited to:

• The University will continue to use the preponderance of the evidence standard.
• The University will continue to use the timelines for resolving formal complaints set out in the PPDHRM Policy.
• Parties may still be accompanied by a support person during meetings related to the resolution process.
• The Title IX Sexual Harassment Policy will apply to the conduct of students, faculty, and staff.
• The PPDHRM Policy’s prohibition on retaliation will continue to apply.

Yes. For the time being, there will be no changes to the University’s Responsible Employee designations.  Any employee who has been designated as a Responsible Employee continues to have an obligation to report any potential violations of the PPDHRM Policy and/or of the Title IX Sexual Harassment Policy.  The University plans to solicit feedback from our community about our current policy on Responsible Employees. Responsible Employees are designated faculty and staff who must report information about suspected sexual or interpersonal violence to the EOC Office. We realize there are different perspectives on this issue, and we want to ensure impacted parties receive appropriate resources and reporting options in a prompt and compassionate manner.

For a list of campus and community confidential resources, please visit the Safe at UNC website.

The Title IX Sexual Harassment Policy was drafted by EOC staff with input from the Advisory Group for the Policy on Prohibited Discrimination, Harassment and Related Misconduct. That Advisory Group includes students, faculty, and staff.

The federal regulations require that both parties be allowed to have an advocate with them during the process. If a party doesn’t have an advocate, the regulations require that a school provide a party with an advisor for the limited purpose of conducting questioning on behalf of the party at the hearing. UNC, however, will provide a Hearing Advisor for the entire hearing process (not just for questioning) if a party does not have an advocate. Those Hearing Advisors will receive training and will be well prepared to assist a party in the hearing process.

The Title IX regulations allow schools to use their own definition of consent when adjudicating reports of sexual and interpersonal violence, and Carolina has imported our existing definition of consent into our new Title IX Sexual Harassment Policy. Therefore, when adjudicating whether a student or employee has engaged in sexual or interpersonal violence under either the new Policy on Prohibited Sexual Harassment under Title IX (“Title IX Sexual Harassment Policy”) or under the existing Policy on Prohibited Discrimination, Harassment and Related Misconduct (“PPDHRM”), the University will apply the same definition of consent, which provides in relevant part: “Consent to one form of Sexual Contact does not constitute Consent to any other form of Sexual Contact, nor does Consent to Sexual Contact with one person constitute Consent to Sexual Contact with any other person. Additionally, Consent to Sexual Contact on one occasion is not Consent to engage in Sexual Contact on another occasion.” The full definition of consent can be found in the Policy. Even if the panel is permitted to consider evidence of prior consent (per the regulations), the panel will weigh that evidence and determine whether is it dispositive of Consent to the sexual contact at issue.

In terms of the investigation and adjudication process, the regulations require that schools offer supportive measures to a party who is impacted by sexual misconduct. An example could be no-contact order. This is something that Carolina does anyway, but the regulations now require all school to do the same. And the regulations still prohibit retaliation.

The University still requires students and employees to complete online training about harassment prevention and response. In terms of other trainings, such as the HAVEN training that EOC provides with other campus partners, we are finalizing an online version of that training and plan to open up registration soon. If you have questions about a particular training, please reach out and let us know.

The University has not changed its designation of Responsible Employees. When the EOC receives a report, we will continue our process of reaching out to an impacted student to connect them to resources and to offer supportive measures. And then, if the student is interested in formal University action, we will assess whether the conduct would fall under the new Title IX process or our existing process for non-Title IX conduct.

There was a campus-wide email from Vice Chancellor Becci Menghini in August that alerted the campus (including students) to our new Policy. The online modules students are required to take about sexual violence prevention will include links to the Policy. For incoming students, information about the new policy also will be covered during Orientation.

The EOC Office encourages all members of the University community to recognize the demonstrated public health benefits of limiting person-to-person contact and avoiding large groups to mitigate the spread of COVID-19, in compliance with the University’s Community Standards. The EOC Office also wishes to promote an environment where students are not afraid to seek help for discrimination, harassment, sexual violence, and interpersonal violence due to the added fear of disciplinary repercussions for not adhering to our COVID-related standards in the context of the discrimination, harassment, or violence they seek to report. With these priorities in mind, amnesty from formal University disciplinary action related to our community standards will be granted to a student who is reporting sexual violence, interpersonal violence, or other violation of the University’s Policy on Prohibited Discrimination, Harassment or Related Misconduct or Title IX Sexual Harassment Policy. To promote the health and safety of the campus and local community, EOC staff may be required to share information about large group gatherings with appropriate University or local officials. However, that information will be shared in a way that protects the privacy of the individual who is reporting discrimination, harassment, or violence to the EOC. Nothing in the provision above absolves a student from the responsibility to notify Campus Health of a positive test for COVID-19 so that appropriate contact tracing can be conducted. Individuals are encouraged to talk with Report and Response Coordinators if they have questions about information sharing. Additional support can also be found on the SAFE@UNC website. Finally, please note the EOC cannot guarantee amnesty from any civil or criminal legal action, or from any legal consequences arising from a student’s violation of local, state, or federal law.

Online harassment is covered by the Title IX Policy and/or the PPDHRM. If the conduct involves using University resources or occurs during online instruction, the Title IX Policy likely will apply. If not, we will assess whether the conduct is covered by the PPDHRM. Regardless of which policy applies, any student who experiences online harassment can contact the EOC and/or campus police.

The EOC Office provides Reporting Parties with the option of reporting to law enforcement and/or contacting law enforcement to learn about the criminal process. The EOC makes clear that a Reporting Party is not required to report or respond to law enforcement.

The policy permits voluntary resolution, if requested by the Reporting Party and agreed to by the Responding Party. Voluntary resolution does not necessarily involve mediation.

Yes. If a student reports sexual misconduct while abroad, the University will assess that report under the PPDHRM, which does not limit jurisdiction to the U.S.