Due to rule changes made to Title IX in 2020, the Fraternity and its collegiate Chapters are restricted in the disciplinary actions it can take against its members for violations of the Code of Conduct and the Risk Management Policy that are covered by Title IX. The Fraternity is still deeply committed to being a safe, welcoming organization for all its members and to holding ourselves and our members accountable for upholding the standards of the Fraternity. Within the bounds of federal, state, and local laws and host institution policies, we will continue to do our utmost to uphold those standards and protect our members.

WHAT IS TITLE IX?
Title IX is the most commonly used name for the federal civil rights law in the United States that was enacted as part of the Education Amendments of 1972. It prohibits sex- and gender-based discrimination in any school or any other education program that receives funding from the federal government. This includes sexual assault, sexual harassment, and other forms of interpersonal (relationship) violence, sexual exploitation, stalking, and complicity for knowingly aiding in acts of prohibited conduct.

WHAT CHANGES WERE MADE TO TITLE IX?
In 2020, the Trump Administration made wide-ranging changes to the ways in which Title IX investigations are conducted. Not all of these changes are relevant to the Fraternity, but several changes affect the ability of the Fraternity to discipline our own members under the Code of Conduct at the collegiate level.

First, the changes created a presumption of innocence for the respondent which prohibits Title IX institutions from taking any adverse actions - suspension, expulsion, removal from office, or any other sanctions - against a respondent until they are found responsible by a formal investigation conducted by the school's Title IX office.

Second, the changes widened the scope of educational programs and activities covered by Title IX to include the activities of Recognized Student Organizations, including Mu Beta Psi.

WHAT DOES THIS MEAN FOR MU BETA PSI?
In concert, these two changes mean that Recognized Student Organizations, including Mu Beta Psi, may not take any adverse action against a member for allegations that fall under the scope of Title IX, including sexual assault and sexual harassment, unless that member is first found responsible by the school's Title IX investigation.

WHAT IS AN ADVERSE ACTION?
Adverse actions are any actions that negatively impact a student’s ability to participate in covered educational programs and activities, including the activities of Mu Beta Psi. These include expulsion, suspension, removal from elected office, restrictions on participating in Fraternity activities, removal from training, and any other sanctions.

WHAT CAN WE DO IF A MEMBER IS ALLEGED TO HAVE COMMITTED A TITLE IX VIOLATION, LIKE SEXUAL HARASSMENT?

• The Fraternity cannot take any action against a member alleged to have committed a Title IX violation without the host institution first conducting its own Title IX investigation and finding the student responsible. This means that in all instances, a formal complaint must be made to the Title IX office for the Fraternity to be able to take any action at all.

• While a Title IX investigation is ongoing, or in the absence of a formal complaint and subsequent Title IX investigation, the member must be allowed to participate and affiliate with the Chapter normally.

• The Chapter may ask the member to voluntarily resign from office, go inactive, refrain from participating in Chapter activities, remove themselves from the training process, or disaffiliate, but it cannot force the member to do so.

• Chapters may not conduct any investigations into Title IX-related offenses until the respondent is found responsible by the Title IX investigation. If the respondent is found responsible, the Fraternity may then be able to investigate in order to determine internal sanctions. Chapters should consult with the Title IX office or Student Conduct office to determine if they are allowed to issue additional sanctions.

• If the respondent is not found responsible, the Fraternity may take no further action against the member.

• Chapters may file their own Title IX complaints against a member if they are made aware of alleged violations.

• Conducting an internal investigation or taking adverse action against a member without that member first being found responsible by the Title IX office can itself be a Title IX violation and the member in question could file a complaint against the Chapter for retaliation.

• Chapters may continue to use the normal processes under the Code of Conduct to hold members accountable for non-Title IX violations. However, Chapters may not use other violations as an excuse to avoid following Title IX requirements.

WHY CAN’T WE SANCTION A MEMBER IF THEY’VE BEEN ACCUSED OF SEXUAL MISCONDUCT?
In addition to prohibiting discrimination and harassment, Title IX also prohibits retaliation (meaning, any adverse action) against a complainant, respondent, Title IX Officer, administrator, faculty member, employee, student, witness, or any individual involved in any aspect of the complaint or investigative process.

This includes taking adverse action against someone because that person has been accused or suspected of misconduct, whether or not a report has been made to the Title IX office. For example, suspending a member because they have been accused of sexual misconduct could be retaliation, especially if the allegation has not been reported to the Title IX office. This could lead to a formal complaint of retaliation, an investigation, and possible discipline for the Chapter and anyone found responsible for engaging in retaliation.

CAN THE NATIONAL ORGANIZATION DISCIPLINE A MEMBER IF A COLLEGIATE CHAPTER CAN’T?
No. The National Organization and the collegiate Chapters are part of the same legal organizational structure. Any action taken by the National Organization against a collegiate member will be treated as action by the collegiate Chapter by the host institution. The National Organization must follow the Title IX guidelines.

DO THESE RESTRICTIONS APPLY TO THE ALUMNI ASSOCIATION?
No. The Alumni Association is not a Title IX organization and may continue to use the Code of Conduct without restriction unless the alleged violation includes a collegiate Chapter or member. In that case, the Association should confer with the collegiate host institution’s Title IX office to determine who has jurisdiction.

DOES THIS MEAN WE’RE CHANGING THE CODE OF CONDUCT?
Not at this time. The Biden administration will be announcing new Title IX rules in May 2023. These changes are expected to roll back most or all of the changes implemented by former Secretary of Education Betsy DeVos and the Trump Administration. The Vice-President of Chapter Maintenance, the BOT Risk Management Advisor, and the BOT Membership Advisor are waiting on the final rules from the Department of Education before making recommendations on changing the Code.

OUR HOST INSTITUTION TOLD US SOMETHING DIFFERENT. WHAT SHOULD WE DO?
Host institution policies supersede Fraternity policies and guidance. Contact the National Vice-President of Chapter Maintenance and let them know of the conflict, but always follow the guidance given to you by your host institution.

WHO DO I CONTACT IF I HAVE QUESTIONS?
If you have further questions, contact your host institution’s Title IX office, the National Vice-President of Chapter Maintenance (NVPCM@mubetapsi.org), or the Board of Trustees Risk Management Advisor (ben@mubetapsi.org).

Issued February 16, 2023
Rob Faggart, National Vice-President of Chapter Maintenance

This guidance remains in effect until rescinded or modified by the NVPCM, the National Executive Committee, or the Board of Trustees.

Portions of the language in this document are adapted from guidance issued by the United States Department of Education, Washington University in St. Louis, and the University of North Carolina at Chapel Hill.