Legally Speaking (Insight on the Issues)

A Blueprint for Title IX Compliance

ON APRIL 4, 2011, the US Department of Education’s Office for Civil Rights (OCR) issued major guidance on Title IX compliance. Since 2011 OCR has offered additional guidance, entered into a number of voluntary resolution agreements with institutions of higher education, and has recently engaged the field in active dialogue about the future of Title IX interpretation and enforcement. The volume and complexity of the regulatory communication can be bewildering, even for experts.

To assist campuses in developing well-ordered responses to sexual harassment and violence issues, I developed the Four Corners of Title IX Regulatory Compliance framework. The purpose of this framework is simple: to create a basic, readily understandable blueprint to help campuses organize compliance efforts in a coherent and complete way. The framework also assists individuals involved in compliance efforts in understanding their role(s) in overall compliance efforts at their institution. Although OCR guidance has not articulated the Four Corners framework specifically, it is essentially embedded in all of the guidance and significant regulatory materials. Educators need to translate legalistic regulatory mandates and guidance into operational practice. Think of the Four Corners model as a heuristic conceived by, and developed for, educators faced with operational Title IX compliance challenges and opportunities.

The Four Corners

The Four Corners of Title IX Regulatory Compliance are (1) Organization and Management; (2) Investigation, Discipline and Grievance Procedures; (3) Victim and Other Impacted Individual Assistance; and (4) Campus Culture and Climate. A well-ordered Title IX compliance system requires coordinated due diligence in each of these four areas. By way of a quick sketch, Corner 1 includes issues such as proper Title IX staffing, training and website design. Corner 2 deals with issues such as policies and procedures, standard of proof, appeals, etc. Corner 3 includes appreciating the impacts of trauma, and providing support, such as advocacy resources, to both complainants and respondents. Corner 4 involves culture and climate surveys, and meeting the challenges of coming into “voluntary compliance” as OCR understands that term.

Since 2011, a number of institutions have placed heavy emphasis on Corner 2 compliance efforts. However, properly functioning investigation, discipline and grievance procedures alone are not sufficient. OCR has made this point repeatedly, guiding institutions to have proper Title IX leadership and reporting structures, to provide interim measures and remedies in addition to sanctioning offenders, and to focus on the ultimate goal of transforming campus culture. Operational experience with Title IX compliance efforts has already demonstrated that many individuals impacted by sex discrimination seek campus interventions other than adversarial discipline or grievance systems. For instance, no-contact orders have become ubiquitous in Title IX compliance practice; and it is not unusual for individuals to be unwilling to participate in formal grievance processes. Indeed, many individuals, such as roommates or friends, may be deeply impacted by Title IX issues but not be “grievants.” We have also learned that the volume and complexity of disciplinary or grievance matters can quickly overwhelm our compliance systems. Without long-term and significant culture change, Title IX compliance based too heavily upon Corner 2 efforts may be unsustainable. Educators seeking to find sustainable educational approaches to Title IX compliance work in higher education are drawn to the promise of Corner 4 efforts — and using educational efforts to reduce or eliminate sex discrimination.

The Four Corners framework will also help campuses manage one of the most difficult aspects of Title IX compliance work — its highly dynamic quality. Title IX work is evolving rapidly. Thus, we are currently enmeshed in a great deal of controversy over due process and fundamental fairness in our Title IX work — we might see a sudden shift to a new mandate regarding the “burden of proof,’’ for example. We can, however, put any such changes into perspective.

There will be changes ahead — some likely dramatic. But remarkably, most of our Title IX compliance efforts will remain intact, or evolve carefully and deliberatively. Title IX compliance has been constructed on the solid foundations of the Four Corners framework. Our work will evolve, but it is not going away until such time that the scourges of sex discrimination have been erased from our culture.

This article originally appeared in the July/August 2017 issue of College Planning & Management.

About the Author

Peter F. Lake is professor of law, Charles A. Dana chair and director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law in Gulfport, FL. He is the author of The Four Corners of Title IX Regulatory Compliance: A Primer for American Colleges and Universities (Hierophant Enterprises, Inc. 2017). Professor Lake can be reached at lake@law.stetson.edu.

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