Legally Speaking (Insight On The Issues)

Next Up in Title IX Compliance

Are we doing enough under Title IX to protect our staff or faculty being victimized…by students?

Understandably, much of the focus of Title IX compliance since 2011 has been on protecting students. Plenty of data shows that student victimization is a major issue. Sadly, students (and sometimes minors on campus) have been victimized by other students, faculty, staff, or third parties. Numerous recent scandals underscore the risks to students.

However, Title IX compliance mandates clearly protect employees, and not just from sex discrimination perpetrated by other employees. To improve Title IX compliance efforts for employees I suggest the following:

Improve data collection and response. Anecdotally, we know that student victimization of employees of all classes occurs. We will gain better insights into the challenges of addressing these forms of sex discrimination by making a point of gathering more data nationally and locally. One reason colleges have not been as focused on this issue is that it is not as visible in the existing data, or visibly emphasized. When collecting data, be sensitive to barriers to reporting and be careful about false positives. For instance, the fact that few administrators, staff, and faculty actually report does not mean that institutions should be complacent—there are likely many situations that go unreported. Moreover, different subpopulations may be more vulnerable or likely to experience certain forms of sexual misconduct perpetrated by students.

Review and, if necessary, revise policies. Many institutions have no specific grievance procedure as such for employees to lodge complaints against students. Institutions often refer such matters, if at all, to a student discipline process. But that may be a process that is not always appropriate or desirable for resolution of all such grievances for any number of reasons—ranging from standards that vary from employee-on-employee grievance issues, to training and confidentiality issues. Student discipline systems may function by requiring a grievant to report an issue to a disciplinarian who has the discretion to initiate a student process, or not. It is advisable to perform a specific due diligence exercise at your institution to assure your campus that your grievance systems serve all grievants equitably. A critical component of this exercise will include ensuring that employees have access to interim measures and remedies, as appropriate, in addition to sanctions on wrongdoers. Moreover, employees may be at special risk for retaliation.

Assess and address barriers to reporting. Weaknesses in grievance procedures can create barriers to reporting. There are other barriers as well: some cultural, some structural, some rooted in campus policies themselves.

There is a potential that prevailing cultural sentiments tend to cast employees as victimizers, not potential victims. This could lead to a form of bias towards “student as victims,” and student grievances, that September 2017 guidance from the U.S. Department of Education Office for Civil Rights (OCR) suggests we should identify and address as necessary.

There is also the structural challenge of institutional interest interfering with employee grievance processes. The power that employees have over students makes employee behavior subject to special scrutiny under OCR standards for determining whether employees may have created a hostile environment. However, the obverse is not true: employees are not required to suffer the slings and arrows of sexual harassment simply because they enjoy positions of power or authority. Employees do not “assume the risk” of sex discrimination perpetrated by students simply because they are employees—attitudes to that effect are discriminatory. Moreover, the drive to manage enrollment could lure some institutions to retain a student who should be dismissed, or lessen a punishment. September 2017 guidance from OCR suggests that a bias towards students, or undue institutional interest in enrollment management, could interfere with the fundamental fairness of Title IX grievance systems.

Finally, some institutional policies, however well-intentioned or generally functional, may have unexpected consequences. For instance, consensual relations policies, or workplace drug and alcohol rules, can be turned on an employee by a student victimizer: in some matters, even if an employee were to successfully prove a violation by a student in a grievance process, that employee might then be subject to dismissal. Employees facing that prospect are unlikely to report. Even more nefariously, a student sexual predator might threaten to aver such a relationship falsely—deterring an employee victim from coming forward. Employees may direct attention to student amnesty policies regarding alcohol or drug use, or the inapplicability of some consensual relations policies to students, and claim unequal treatment. In short, due diligence is required to assess, and if necessary address, any inequitable treatment of employees.

Title IX applies broadly in educational communities. Let’s take the time now to ensure that everyone is protected equitably.

This article originally appeared in the April 2018 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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