New Title IX Regulations Note that Organizational Ombuds May be Classified as Confidential Employees

IOA was handed a big win today!  Revisions to Title IX were released Friday, 19 April and IOA is thrilled to see the US Department of Education's inclusion of Organizational Ombuds as employees who may be designated as confidential employees for Title IX purposes.  

Since 2012, IOA has actively commented on proposed regulations and other guidance that addresses both Title IX and Clery Act. In 2022, we upped our game. In May 2022, we participated in an Executive Order (EO) 12866 Meeting on Nondiscrimination on the Basis of Sex in Education Programs or Activities to begin planning seeds.  In the Fall of 2022, we filed comments on the formal Notice of Proposed Rulemaking proposal to changes in Title IX. Post filing, we spent several months lobbying US Members of Congress involved in education and safety committees. This resulted in a bipartisan letter that was sent to the Department of Education, supporting our position that Organizational Ombuds may be designated as confidential employees.  

Some Sections from the Commentary:  

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 believe this is the first time Organizational Ombuds are called out (as opposed to the generic term ombudsman/ombuds person) in regulatory or guidance commentary.       

Sarah Klaper, IOA President said, “This is a significant victory for IOA and reflects the importance of both persistence and aligning IOA resources to our goals. We could not have done this without the Advocacy Committee, our Executive Director, and our lobbyist. ”

Ellen Miller, IOA Executive Director said, “We are grateful to those we met with and educated. They heard us”. 

We hope this new possible categorization also has an impact as the Clery Handbook revisions are made. The full unofficial version can be found here.

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