Institutions keep asking a version of the same question: which rule are we actually operating under?
It is a reasonable question and it has an uncomfortable answer. The regulatory position has been contested, litigated, and revised, and what governs a particular institution can depend on where it sits and what its own policy says.
This piece does not resolve that. Nothing published on a website should, and any firm telling you otherwise is selling certainty it does not have. What follows is how to operate well while the question is open.
Nothing published on a website settles which rule governs you. Your counsel does.
First, get the answer in writing
Ask your counsel, specifically, which regulatory text your institution is operating under, and record the answer with a date and the reasoning.
Institutions that cannot produce that record are in a worse position than institutions that chose a defensible answer and documented it. A reviewer can disagree with a considered position. A reviewer cannot do anything useful with an institution that never took one.
Your policy is the operative document
Whatever the regulatory position, your published policy is what your community relies on and what a reviewer reads first.
The most common failure right now is not a wrong choice of framework. It is an institution running a process that does not match its own published procedure, because the policy was written against one version and practice drifted toward another.
If your published procedure promises a live hearing and you are not holding one, that is a problem regardless of which rule governs.
What holds across every version
A very large part of good practice does not turn on the contested provisions at all.
- Prompt response to notice, and a record of when notice arrived.
- Supportive measures offered before jurisdiction is resolved.
- A designated coordinator, published and reachable.
- A conflicts-screened decision-maker, and a route for a party to object.
- Notice to both parties with enough specificity to respond to.
- An equitable opportunity to present and respond to evidence.
- A determination that states the standard applied and the reasoning.
- A record that lets someone else follow all of it a year later.
An institution doing those eight things well is in a strong position under any version of the rule. An institution doing them badly is exposed under all of them.
Where the differences actually bite
The contested areas are narrower than the discourse suggests: the scope of covered conduct, the definitional threshold for harassment, the treatment of off-campus and online conduct, hearing and cross-examination requirements, and the standard of proof.
Those are real differences with real consequences, and they are exactly the points on which you need a documented institutional position rather than an inherited assumption.
What to do this term
Confirm the position
In writing, from counsel, with a date. Store it where the next coordinator will find it.
Reconcile policy to practice
Read the published procedure and compare it to what actually happens. Fix the gap in one direction or the other, deliberately.
Train to what you publish
Investigators and decision-makers should be trained on the procedure your institution actually operates, not on a generic version of the framework.
Record the reasoning in each file
Where a matter turns on a contested provision, say so in the file and explain what the institution applied and why. That entry is worth more than any amount of confidence expressed after the fact.
The regulatory position will settle eventually. The files you are creating this term will be read afterwards, against whatever settles. Build them so that a reader can follow what you did and why, and the eventual answer becomes far less dangerous.
— Albert Roberson, Fractional Coordinator