The Only Constant is Change

“The only constant is change” – perfect quote to describe the field of Title IX compliance.  Since the Dear Colleague Letter of 2011, Title IX law, regulation, and process has been in flux.  For her entire tenure as Secretary of the Department of Education, Betsy DeVos promised to change Title IX, beginning with a Questions and Answer letter in 2017 that set the stage for upcoming, larger changes.  In her final six months, the New Rule on Title IX came into law and became effective 8/14/20.  Aside from the significant changes in how Title IX would be enforced, the DeVos administration also wiped clean the slate of prior guidance by rescinding everything but the New Rule.

A new administration has taken over the White House and promised to revise the New Rule, which has been in effect for less than a year.  Many special interest groups have submitted requests, detailing wide-spread alterations to the guidance.  In this blog, I will provide my wish-list, focusing on the practical enforcement challenges faced by K-12 schools, colleges, and universities.

College vs. K-12 Enforcement
Most of the guidance provided by the Department of Education has made blanket requirements for educational institutions without regard for the distinct differences that exist between these institutions.  The most glowing distinction – between K-12 and higher education – is often absent in the guideline, not to mention the differences that exist in higher education.  A four-year institution, which has a population predominantly living on campus is very different from the community college that serves a part-time commuter population and/or a graduate level professional school whose students are often being trained away from campus.  The distinctions also lie in private and state institutions, whose state-mandated due process obligations impose an additional layer of responsibility.

Examples of distinctions in the regulations currently focus on which types of employees can hold an institution liable in the end (K-12 schools impose this responsibility on ALL employees, while higher education can identify which employees have this obligation) and the requirement for a live hearing with cross-examination (currently only required in higher education).  These types of distinctions are important, and my hope is that the new regulations reflect similar distinctions.

In short, there are layers of complexity in the different institutions and thus different risks, and any guidance should try to incorporate these distinctions.

Students with Disabilities
Over the course of my work investigating Title IX matters, there are a growing number of students with disabilities in the Title IX process.  Taking this fact into account is important at every step of the process.  Most guidance ignored this complexity or glossed over this important issue for institutions.

Perhaps this issue is most evident at K-12 schools.  If a school determines that a student with a disability has violated the sexual harassment policy, the school must engage in a manifestation determination before imposing discipline. This process determines whether the actions of the Respondent student (the one accused of bad behavior) were a manifestation of the disability.  If the actions were a manifestation of a disability, the school cannot impose discipline.  Due to student privacy concerns, this information often cannot be shared with the student who brought a complaint (alleged victim of harassment).  Often in the most serious cases, the school is accused of doing nothing, when in fact, actions could not be taken to discipline a student under the law.

Onerous Process
In an effort to ensure due process (which is legally not required at private institutions), the New Rule set forth an onerous process that requires parties to review all information collected (even irrelevant information).  There are steps and stages that permit parties to review, comment, and second-guess any step in the process.  It is important to note that no other student discipline matter requires this process – it is reserved ONLY for matters under Title IX.

The process stands in the way of an important goal – moving quickly and resolving these matters so students can move forward in their education program.  With regard to this process, I strongly suggest steps be taken to streamline the process, allow for investigations to proceed and conclude without hearings in ALL cases (for colleges), and eliminate the multiple levels of review/decision-making.

My experience with Title IX professionals is that they are attempting to the do the best for all students and need to achieve that with limited resources.  Any new guidance should help them do so.

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