Legally Speaking (Insight on the Issues)

Title IX... in Regulatory Limbo

Title IX compliance entered a new phase on September 22, 2017, when the U.S. Department of Education released “substantial” and “interim” guidance. The new guidance rescinds some, but not all, Obama-era guidance. For all its complexity, this dramatic regulatory maneuver has changed very little in actual operational compliance for most institutions. Received wisdom, coupled with a careful examination of what was and was not actually rescinded, has led most institutions to stay the course of compliance charted during the Obama era.

From a practical perspective, the new guidance is predominately forward-looking in impact, drawing universities’ attention to what may come when the Department issues new regulations related to Title IX. The process of creating new regulations could easily take 9-18 months (and possibly spill over into mid-term elections). Anticipating what may come, the field has received mixed messages about what direction the new regulations may take. Secretary DeVos has chided colleges for mishandling some respondents’ matters (“kangaroo courts”); yet Candice Jackson of the Office for Civil Rights has indicated an intention to relax some regulatory investigations currently in transit. And, there are still hundreds of open investigations — some open for several years now. Title IX is in… limbo.

Not a Vacuum

Limbo, however, is not a vacuum. A notable impact of the new guidance is to direct the focus of institutions towards improving procedural fairness for respondents, and measures intended to protect the interests of respondents. Institutions of higher education, however, believe our attention was already there. The September 22, 2017 guidance curiously does not reference the Obama-era Wesley College resolution (from October 2016). That resolution process alerted the field to the importance of protecting due process rights in Title IX disciplinary matters, drawing specific attention to several procedural protections that essentially reappeared in the September 22, 2017 guidance. Moreover, there has now been significant litigation over procedural fairness in the courts — resulting in specific mandates for institutions in various jurisdictions.

The new guidance also offers choices — a menu, so to speak. For instance, the field has choices on how to deliver appeals, whether to use mediation and about burden of proof — even whether to use single investigators. These may be the sorts of choices the field might prefer not to have. There is a sense that the September 22, 2017 guidance signals the Department may ultimately prefer that the field make some choices over others, which remains to be seen. For a risk-averse industry that is now getting used to being called out for perceived Title IX inadequacies, the predominant choice since September 22, 2017 has been to not choose. A wait-and-see instinct permeates, and runs parallel to the practical reality that most campuses would take months to change their policies — which could time out with new regulations that might require further policy revision.

A Shift in Attention

Our attention is already shifting to participating in the notice and comment period for future regulations when that process incepts. Listening sessions are occurring presently as the Department gears up for this process. It will be important that the new regulations — whatever they may be — are sufficiently sensitive to operational reality on campuses of all types. The voices of external stakeholders and “shapeholders” (as described in the book Shapeholders: Business Success in the Age of Activism by Mark Kennedy) — many of whom are lawyers, former and current prosecutors and legalists — should not override quality input from boots-on-the-ground professionals who administer Title IX systems. When the VAWA/SaVE regulations were vetted in 2012-2013, the cadre of highly trained and experienced Title IX professionals was small — not so today. The notice and comment period should reflect the significant evolution of the field.

This regulatory period may be something of a breather, but it is not likely to be restful. Significant legal battles portended by the now-rescinded April 4, 2011 Dear Colleague Letter now seem almost inevitable. Showdowns in the Supreme Court regarding due process and its intersections with Title IX work seem less distant in time and more likely.

This period does offer the field the opportunity to reflect upon two critical Title IX values. First, our work must be sensitive to everyone impacted by sex discrimination in educational programs and activities. Second, intersectionality matters; we must be sensitive to protect rights guaranteed under all civil rights metrics and not be tempted to sacrifice one metric for the sake of another.

This article originally appeared in the November 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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