Flexibility in Title IX regs is blessing and curse (opinion)

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The U.S. Department of Education’s Office for Civil Rights recently published new proposed Title IX regulations. Once implemented, these regulations will govern how K-12 schools and colleges in America manage allegations of sexual assault, sexual harassment and various other forms of sex- and gender-based discrimination.

The proposed regulations consist of a curious mash-up of resurrected provisions from the 2011 OCR Dear Colleague Letter, the 2020 Title IX regulations (currently in place) and some new provisions concocted by President Biden’s OCR. It is commonly accepted that the compliance regime created by OCR in 2011 tilted the resolution process in favor of complainants (those impacted by sexual violence and harassment). The Trump administration offered the 2020 regulations as a correction to this imbalance but went overboard in its efforts to enhance due process for respondents (those accused) at the expense of protecting complainants.

Many observers anticipated that the Biden administration would return to the imbalance of 2011. They have not. The new proposed regulations are not perfect, but they balance complainants’ rights and the rights of those who are accused more effectively than any efforts by OCR to date. In short, practitioners in the Title IX field generally welcome these proposed rules.

Of all the changes proposed by OCR’s new rules, the most significant is a return to flexible standards and administrative discretion to make policy and procedure choices. The Trump administration’s current rule is so prescriptive that it virtually eliminated all administrative discretion in promulgating policies, procedures and practices. In contrast, the Biden administration’s proposed rule offers guardrails but allows for a range of practices within them.

In other words, where the Trump rules eliminated administrative discretion by merging the floor of compliance with the ceiling of best practices, the Biden rule would set a floor and give administrators wide latitude to define programmatic excellence with respect to Title IX compliance. Too much prescriptiveness inhibits the flexibility necessary to do the right thing, and too little guidance leaves administrators with too much potential for biased outcomes.

When the Obama administration released the 2011 Dear Colleague letter emphasizing colleges’ obligations to respond to claims of sexual harassment and sexual violence under Title IX, many in the field of higher education interpreted it as a signal to skew processes toward those who reported sexual harassment. That inclination to favor victims still exists, and the Biden OCR needs to calibrate the new regulations carefully to ensure a balance that protects the rights of all parties to make a Title IX complaint without favoring either complainants or respondents.

Perfection is nearly impossible, as OCR tries to balance the rights of students and employees in public and private institutions, both in higher education and K-12 education. But the risks of failure are astronomical. Higher education’s reaction to the 2011 Dear Colleague letter touched off a wave of litigation, with the filing of more than 700 state and federal lawsuits alleging various due process violations and biased decision making against institutions. Colleges lost or settled many of those suits and saw a serious erosion of the historical deference that courts gave to institutional disciplinary decisions.

As the president of the leading industry association dedicated to Title IX compliance, the Association of Title IX Administrators (ATIXA), I can assure you that the problem of biased outcomes was real. Educational institutions railroaded those accused of sexual violence and harassment (mostly cisgender men) in numbers that should terrify any reasonable person. The Trump administration arguably lowered the risk of erroneous outcomes that adversely impact respondents with the current regulations, but at the cost of making the Title IX process so slow, cumbersome, complex and skewed that many victims just gave up on reporting sexual violence and harassment.

Unfortunately, the proposed regulations open the door to a return to the incessant litigation of 2015–2019. Greater flexibility is both a blessing and a curse. OCR has offered the gift of administrative discretion to the Title IX field, but Title IX administrators must use that discretion wisely. The field’s reaction in the post-2011 era does not bode well for administrative fairness unless we heed the lessons that the post-2011 overreach should have taught us. Below, ATIXA offers some suggestions to both OCR and the field to help ensure balanced fairness going forward.

Suggestions for OCR

  • The current regulations set a high bar for what constitutes sexual harassment, in part to protect free speech rights. The proposed regulations set a lower bar and assure Title IX administrators that the newly proposed, broader definition of sexual harassment is legally sound. Yet that will only be determined at the expense of educational institutions facing lawsuits for implementing and enforcing a definition that has the potential to violate the First Amendment. While it is possible that the proposed definition will survive judicial scrutiny, public schools and colleges will largely determine its fate. Can they respect the (admittedly) fuzzy line between harassing speech that is subject to discipline and speech that the Constitution protects as free speech? OCR has suggested that its proposed new definition of sex-based harassment mirrors the definition applied by the courts to employee harassment under Title VII, and it does. But employee speech is arguably susceptible to regulation by an employer far more so than is student speech by public schools. That said, employers have applied Title VII to public employees for nearly 60 years, so perhaps its definition is sufficiently protective of free speech, but we really don’t know (yet) whether that is true of its application to students. In short, OCR is experimenting with how to define sexual harassment, but it is educational institutions that will bear the burden of litigating to defend policies that OCR is requiring them to use. This is not to suggest that OCR does not care that schools and colleges will face lawsuits as a result of its actions, but that OCR is clearly willing to put them at precarious risk of liability in order to try to vindicate its preferred definition. If OCR keeps this definition in the final rule, it should go to great lengths to emphasize that public institutions may not use the definition to discipline protected speech.
  • The floor set by the proposed regulations provides that once an investigation takes place, schools must offer a summary of evidence verbally to the parties to a Title IX complaint. That approach is not protective enough of due process. At the very least, the parties (complainant and respondent) should have a right to access and inspect all relevant evidence an institution uses to determine whether a policy violation occurred, prior to a final determination. That right is applicable to only some complaints in the proposed regulations—those falling within §106.46—but not to the default provisions applying to complaints that fall within §106.45.
  • The proposed Title IX regulations require institutions to investigate but don’t require them to write an investigation report detailing their findings. OCR may perceive the obligation to write a report to be too onerous for K-12 schools, but OCR has also already shown a willingness to differentiate K-12 procedures from those applicable to higher education. Various solutions are available. One would be to require more robust reports in higher education, but simpler summaries for K-12. Another solution could be to vary the complexity of reports based on the complexity and nature of the allegations. Simple complaints could result in shorter summary reports. More complex allegations or those that could result in suspension, expulsion or termination could be more thorough. Parties should have the right to review and inspect these reports prior to a final determination.
  • The proposed regulations allow for the same person to serve as investigator and decision maker. That person can also serve as the Title IX coordinator. The “single-investigator model,” in which one person is both investigator and decision maker, has never been considered a best practice in the field. OCR seems to be embracing this model because it simplifies resolution procedures for resource-strapped K-12 schools, but once those schools face lawsuits for using the model, K-12 schools may spend more resources to defend themselves than they would to employ additional staff. Perhaps this is another area where OCR could make a distinction between K-12 and higher education, or between simple complaints and more serious allegations.
  • OCR’s proposed rule requires the level of due process to vary for employees based on the identity of their accuser. When school employees accuse other employees, their protections are more minimal (as defined in §106.45). When students accuse school employees, their due process rights are far more robust (see §106.46). OCR’s regulations are subject to review by the courts for being arbitrary and capricious under the Administrative Procedure Act. Due process rights attach to respondents based on their role as the accused. Those rights should not vary based on whether the complainant is a student or employee, because that distinction risks being deemed arbitrary and capricious by a judge. Your rights should not be determined by the identity of the person who accuses you of misconduct.

Suggestions for the Education Field

Meeting the floor of compliance is the immediate, near-term goal. Institutions need to meet the basic mandates of the regulations once OCR finalizes them and sets an implementation deadline. But the floor cannot be the end goal. ATIXA calls on the field of education to commit to exceeding the floor by making incremental progress toward the ceiling of best practices that represent excellence within all school-based Title IX programs. How do we do that? Regardless of what the regulations minimally mandate, we must embrace the following three key best practices, both in higher education and K-12 education.

  • Eschew the single-investigator model for all but the smallest and most resource-strapped schools. A handoff from the investigator to a separate decision maker will help to ensure fair and unbiased decision making for Title IX complaints.
  • Write an investigation report. Even in K-12, a short summary report is not onerous, and most institutions will want to write comprehensive reports that accurately summarize all evidence obtained during the course of the investigation. It’s an industry standard practice, irrespective of whether OCR recognizes that.
  • Share the report and the evidence with the parties prior to a final determination being made. Any process of integrity must respect the equal dignity of all parties.

As the result of the rule making process now underway with respect to the new Title IX regulations, school and college administrators will soon have a choice about a range of practices that the Trump administration took away. It is great to have those choices back in the hands of administrators whose knowledge and experience about the process and their unique environments is without parallel. But if we choose the floor of doing nothing more than federal regulations require, we’ll be revisiting an era of error-prone decision making and ensuing litigation. Choose wisely.

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