Earlier this month, U.S. District Court in Kentucky vacated the U.S. Department of Education’s Title IX regulations published in August 2024.  This means the 2020 regulations are back in force (or remain in force for those institutions who didn’t make the change).  

The 2020 revised regulations limited the ways in which an institution “knows or reasonably should know” of incidents of sexual harassment to give notice to the Title IX coordinator or an “official with authority to institute corrective measures.”    

What does that mean for Ombuds?   

If you are not an ombuds with non-ombuds duties and with no institutional authority in your alternate role (a “dual role ombuds”), you should not be considered an official with authority to institute corrective measures and thus would not be an office of notice for the institution.  In other words, your institution should conduct a functional analysis to determine whether you need to be a Title IX mandatory reporter.   

If you are a dual-role OO and part of your other non-OO responsibilities provide you with the authority to institute corrective measures, a functional analysis will conclude that you may berequired to be a Title IX mandatory reporter.   

Although the significant gains OOs made in the 2024 are now null and void for regulatory purposes, the reasoning in the regulation’s commentary are still useful in advocating for your program in the context of a functional analysis, per below:    

• The Department further agrees with commenters’ suggestions to clarify the scope of the confidential employee’s status as confidential under the first category by using an approach similar to that of the Clery Act. Accordingly, the Department has revised the first category in the definition of “confidential employee” to state that an employee’s confidential status for purposes of the Title IX regulations is only with respect to information the employee receives while functioning within the scope of their duties to which privilege or confidentiality applies. (p. 384)

• 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.  (p. 387)

• The Department has revised proposed § 106.45(b)(7)(i) to add that a recipient must exclude evidence provided to a confidential employee unless the person to whom the confidentiality is owed has waived the confidentiality voluntarily. (p.405)  

We should continue to highlight to campus decision-makers that ombuds who act solely in the capacity of an ombuds are not mandatory reporters as they are not officials with the ability to institute corrective measures and the Department of Education recently recognized that OOs behave similarly to other confidential positions like guidance counselors, or staff within an on-campus sexual assault response centers. 

As a reminder, there are different requirements and guidance for campus security issues under the Clery Act.  Although the Department of Education was waiting to update Clery Guidance after Title IX, we do not have an update at this time.  

For additional information, please contact me at [email protected].