Before I begin in earnest, let me make something very clear. I am not a consultant (yet) or a lawyer (maybe?). Nothing in this post is meant to give advice or construe guidance on any Title IX issues. I'm not an expert; I'm simply working with the complexities of this and sharing what I've found. If you'd like to read the guidance on your own, here's a link to a search for OCR guidance. You should get decently good results there. I've also included a link on other popular ways to cure insomnia here.
Now onto the top 9 (in descending order, you know, countdown style)
9) Title IX is not a new thing!
That's right, you read that correctly. The 37 words of the law known as Title IX was passed by Congress in 1972. The government has continued to issue guidance since then clarifying what exactly they meant when they said, "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Yup, you just read the whole thing that is causing the fuss. There is a long history of tweaks, new laws, guiding documents, and "friendly letters" in the intervening years explaining to whom the law applies (basically every institution of higher education) and what is required of them.
8) Title IX isn't just about women in athletics!
Likely, you have heard by now that Title IX applies to athletics. The most common interpretation is that there must be an equal number of female athletes as there are male athletes. That isn't all that is required though in the athletics world. Remember the law you read above? Equal representation covers the whole "be excluded from participation in" piece but the expectation goes on. Basically, everyone should get the same things from the program. If male athletes get tutoring, so should female athletes. If male athletes get priority class registration, so should female athletes. If male athletes get top notch equipment, so should female athletes. That's how you satisfy the "be denied the benefits of, or be subjected to discrimination" parts.
But like I said, it isn't just about athletics. In fact, that's only a part of what Title IX has been interpreted to cover. The most recent dust up has been caused by a thing known in the field as the "Dear Colleague Letter" which states that sexual harassment and sexual violence is an issue related to sex-based discrimination. Essentially, when someone is a victim/survivor of one of these crimes then they are deprived of their access to their educational setting. There's that "be excluded from participation in" piece. So, the Office for Civil Rights, a subset of the Department of Education, declared that colleges and Universities needed to do something about this issue. Here's another fun fact, they've been saying this all along and higher ed is only now paying attention because OCR got tired of people putting their heads in the sand over this issue. They rolled out the big guns because we wouldn't wake up otherwise.
7) Title IX isn't the only law at play here!
Ok, so we've established that Title IX covers more than athletics. We've even wrapped our brains around the idea that Title IX covers sexual assault (and a whole host of other behaviors too). Great, let's go off to change the world!
Well, wait a second. Even if you've been able to slog through all of the regulations and recommendations for Title IX (good luck), there are a host of other applicable laws that you have to understand before you can even begin to tackle this one. Here's a quick run-down of the various ways that laws can interact to cause higher ed administrators to develop drinking problems (I've italicized the laws to make them stand out):
- A student discloses to a Resident Assistant that they are a victim of a sexual assault (report of notice - we'll get back to this concept). That RA writes an Incident Report. The Incident Report necessarily has personally identifiable information on it and so becomes a student record, subject to regulations under the Family Educational Right and Privacy Act (FERPA).
- The RA does the dutiful thing and gets the victim resources. Among these resources is a police officer who writes their own report (not a FERPA governed document, in fact it is usually considered a public record). Incidentally, this report to an officer would trigger a concurrent and separate criminal investigation from anything a school would do.
- The RA continues to provide resources and gets the victim to a medical person (be it a doctor, nurse practitioner, etc) to provide for medical needs. We won't even get into the issue of PERKs, SANE professionals, etc. That will further muddy the water. Suffice it to say that, at best, we'd be dealing with Health Insurance Portability and Accountability Act (HIPAA) issues with getting any medical professional to talk to anyone.
- Once the information has been reported to a Campus Security Authority (which the RA may or may not be, but likely the campus affiliated officer would be, if it is an officer from another locality it gets muddier) then there would have to be a Clery Act assessment for issues of timely warning (usually a text blast, email announcement, website changes, and/or some sort of emergency alert). Failing the need to alert the public for safety, the report of a crime would have to be included on the daily crime log (which must be updated within a certain amount of time) and the school must issue a notice that the log has been updated.
- Finally, the Title IX regulations would begin to govern how an investigation, hearing, interim measures, and other parts of the process would run.
6) Employees are responsible for reporting this stuff!
There is a concept in the Title IX guidance known as notice. I referenced it in our scenario above. Essentially, notice is the point at which the school knows about an act of sexual discrimination. Ok, great, we can make sense of that. So a school has notice when the Title IX coordinator is told of an issue. Perfect.
Nope. Try again.
Title IX guidance says that a school has received notice if a responsible employee has been informed of the issue. This sort of begs the question of who is a responsible employee? Well I'm going to quote from the OCR guidance and provide my own parenthetical, italicized commentary:
"According to OCR's 2001 Guidance (told you it wasn't new), a responsible employee includes any employee: who has the authority to take action to redress sexual violence (makes sense); who has been given the duty of reporting incidents of sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate school designee (alright, I'm tracking with you); or whom a student could reasonably believe has this authority or duty. (whoa, wait, what?)"
There you have the heart of the responsible employee issue. It turns out, the designation for this is in the interpretation of the students...the very same people who get in trouble for things like butt beers. Schools have been advised to clearly designate who among its employees counts as a responsible employee for this purpose to remove all doubt.
5) Schools are only responsible for these issues if they have actual notice...right?
Ok, so I get it now, the notice occurs when a responsible employee has been told about the act in question. Yes, that is accurate, but there is such a thing as constructive notice. You see, constructive notice is when a responsible employee "in the exercise of reasonable care should have known" about the discriminatory act.
Yup, this one is a real mess.
Ok, loyal readers, that concludes Part 1 of our top 9. More to come in Part 2!
No comments:
Post a Comment