Educational institutions experienced a seismic shift in Title IX enforcement this year as colleges and K-12 schools implemented the Final Rules (regulations) that went into effect last August. These regulations, adopted by the prior administration through the Department of Education, carry the force and effect of law, and require fundamental changes to everything from the definition of sexual harassment to how complaints are investigated and when discipline can and cannot be imposed.
Acting as a consultant for various colleges and K-12 school districts during this past year, I observed the chaos that ensued while institutions sought to implement these regulations during this challenging year. You might be curious about exactly how this process worked (for the most part, institutions met their requirements) and how schools fared using a new and more complicated procedure (it was tough!). Perhaps more importantly, I want to share a few observations I made during this year and how we might see Title IX enforcement evolve going forward.
- Parties remain dissatisfied with the process.
Most commentators will agree that the pre-2020 Title IX process was complainant-centric while the process under the new regulations is more focused on ensuring the due process rights of the responding party. Under the prior guidance, my experience was that neither party was satisfied with the Title IX process at its conclusion. This remains true under the procedures outlined in the new Title IX regulations. I have seen no gains by either party in terms of satisfaction with the process. It remains confusing, time-consuming, and often convoluted to both parties.
- Significant role played by social media in violations of Title IX and investigation of claims.
This observation will not come as a surprise to any school administrator. With regard to an allegation of sexual harassment in the form of abusive or harassing comments, most comments have moved online to social media. Even the claims of sexual assault include an element of social media, such as posts about the incident, comments to the parties, etc. And, of course, the “hashtag” movements that make public accusations of harassment and violence without identifying the parties continue to provide challenges to campuses nationwide. The questions in this area are endless – when can we investigate these allegations, when are social media posts a school issue or when is it a free speech issue, and how can we investigate these matters that involve short-term posted or disappearing evidence? Hopefully, the pending US Supreme Court case, Mahony Area School District v. B.L., (a case in which a cheerleader expressed her disgust with being cut from the team in off-campus postings with various expletives) will provide some guidance before next year about when institutions can impose discipline related to online speech. (More information on this case can be found here https://www.scotusblog.com/case-files/cases/mahanoy-area-school-district-v-b-l/)
- Growing need for alternative methods of resolution.
Despite efforts by the survivor community and the due process rights community to formulate a fair process for sexual harassment and assault claims, Title IX matters leave everyone – parties, parents, administrators – claiming that the process was unsuccessful and/or unfair. This blog isn’t long enough to list all the reasons that I have heard from individuals about why they feel that way, but I can say that it is a pervasive sentiment from everyone involved. We MUST find other ways to address the allegations, conduct investigations, and conclude these matters.
The Final Rules made it clear that educational institutions can employ an informal resolution process so long as a formal complaint has been filed, the process is detailed to the parties, and both agree to use this process. I encourage all colleges and K-12 schools to establish an informal resolution process before the start of the next school and to use it when appropriate. The one area where I have seen success in these matters is incorporating restorative justice into the process. Here, the harm experienced by the parties becomes the focus of the resolution process rather than just what occurred and how we can discipline. I see real opportunity for campuses to incorporate this focus into their resolution process where the result is healing for the parties and the community. And in the end, a healed community can only strengthen your campus.