Top 9 things you should know about Title IX - Part 2

This is Part 2 of our two part mega-post on Title IX related issues. If you haven't yet read Part 1, please head on back there and get started. I wrote all of this at once so it really makes more sense if you begin at the very beginning with Part 1 of it all.

Don't worry, I'll wait. Ok, you're back? Read on for our next few items in the top 9!

Again, let me add a little disclaimer: 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 that the pleasantries are over, back into the list.

4) Once a school receives notice, the duty to act is absolute.

The school can't have knowledge - notice - and not do something about the discriminatory behavior. This does not mean that it must expel every student accused of such a behavior immediately. In fact, to do so would be a violation of the respondent's equal protection under Title IX. Instead, the school must act to end the discrimination and investigate the issue. This could occur by changing class schedules, adjusting living arrangements, temporarily suspending someone pending a hearing, issuing a "no contact" order, banning someone from campus or certain areas, etc. There are a lot of ways to put interim measures into place while the school figures out how to investigate the issue. The one thing that the school cannot do is ignore the issue.

That being said, when you are on the outside it will definitely appear like the school is ignoring it. Let me explain. If you were to receive a hot tip about a sexual assault at my campus and want to follow the lead, you'd likely end up calling either me or one of my colleagues. No matter who you ended up speaking with, you'd get the same answer or some variation: "I can neither confirm nor deny that anyone is involved in a Title IX case." You see, all of that information would be protected under FERPA (see the mess above). We can't talk to anyone, regardless of your media affiliation, about a student's information without express, written consent from the student in question. Even then, we'd need written permission from all students involved to talk about everything we know. So, you'd be forced to move on with the facts available to you. The account of anyone who would talk to you. The fact that the respondent is still walking the campus. It would be easy to conclude that the school did nothing. It would even pass Occam's Razor (my critical thinking professor would be proud). It may also be a false conclusion based on incomplete data. Again, there are lots of ways to end the discrimination that don't include expulsion.

3) Schools can use formal and informal methods.

There seems to be a lot of talk about the formal methods used by schools that could end in suspension or expulsion of a member of the community. That is important to be sure and certainly the way to go for the big, scary behaviors covered under the Title IX umbrella. I happen to believe that if a student violently rapes another student then, yeah, they don't belong in our community anymore. That would need to follow the formal process (whether with the victim's cooperation or not - there's a wrinkle to throw at you) to successfully move forward.

How about if a student makes an inappropriate joke about one gender that someone finds offensive? That's a Title IX related offense and could fall under the sexual harassment umbrella. So, would you support expelling a student from a college or university for that?

You see, Title IX covers a pretty broad set of behaviors. We have heard a lot about the violent rapes and terrible misconduct. All of that is wrong and should be aggressively attacked. What about the other policy violations that seem to have less of a lasting impact on someone's life? Relationship violence, stalking, rape, assault, lewd acts, quid pro quo harassment...yeah, let's go after that. But maybe, just maybe, there's an opportunity to educate our students when the smaller violations come to our attention in a way that begins to address the issues in the college and ultimately lessens rape culture all around us. That's where informal resolutions come in.

For the scenario of the inappropriate joke, a school might choose to take that to an informal resolution. That would likely look like a conversation between the person who made the joke, the person offended by it, and a neutral third party. The offended person would explain why it offended them and why they felt it was wrong. The neutral party would explain why the joke violated the misconduct policy. The respondent would promptly poo themselves for finding their seemingly innocuous behavior lumped in with the likes of the violent gang rapists in the news and would likely not make that same mistake twice.

Again, there are a lot of ways that an informal resolution should never be employed. There are some, though, where it is actually the best way to end the discrimination.

2) Title IX protects ALL involved.

The guidance is clear on this point too. Title IX guidance says that victims/survivors should be protected from retaliation and should have the full power of the school to end the discrimination that they face as a result of their encounter. The guidance also says that witnesses, people who reported the incident, and, indeed, respondents (the accused) should also be protected from retaliation. Notice that I didn't say protected from being inconvenienced. The guidance is also clear that if interim measures (or long term solutions) must be put into place then the victim must not be adversely affected. That would be seen as the school acting in a retaliatory manner. Instead, the respondent is the one who must be inconvenienced.

Let's run another scenario. A student reports that they feel uncomfortable because another student in their history class has propositioned them multiple times. This appears to be sexual harassment and the reporting student (the victim) no longer feels comfortable attending history class. The most immediate interim measure would be to remove the respondent from the history class pending resolution of the case.

Yes, this can affect the respondent's education. Yes, this is inconvenient. Yes, this is frustrating. Yes, this is done prior to a hearing, investigation, or any finding of responsibility for the behavior in question. Sorry, if it comes down to the victim or the respondent...tie goes to the person who has been a victim.

And the #1 fun fact to know about Title IX is...

1) The penalty for not handling Title IX cases correctly could be VERY severe.

Many schools are under investigation for their handling of Title IX cases (the number keeps growing) and there have been many punishments for their shortfalls. Most of these punishments amount to a lot of rewriting of policies and adjusting practice on campus but some have some serious financial impacts. Schools have been mandated to pay damages to victims in numbers that are above my yearly salary. It's a scary proposition to receive a complaint from OCR. To date, no school has had the nuclear option pulled out on them yet. OCR could recommend removing ALL federal funding.

A removal of all funding would effectively shut down most institutions.

A research university would receive no more federal grants. A school of any type would receive no more federal financial aid. At best, a school would limp along on its endowment as it fired staff to cover debt. In all likelihood it would require the immediate liquidation of most every asset just to break even. Let's not even begin to talk about the impact on the students and alumni whose institution would just disappear one day.