Title IX practice becomes more legalistic

Administrators working in Title IX offices at colleges across the country have noticed a shift in recent years: Their jobs and the jobs they do increasingly mirror that of a judicial system.

The most recent regulatory overhaul of Title IX of the 1972 Education Amendments was made by the Trump administration in 2020. It reduced the types of cases falling under Title IX, limited the discretion of Title IX coordinators from create policies and procedures on their campuses. , and created a complex, lengthy and daunting process that many believe has deterred reporting of gender violence or discrimination.

“We’re essentially creating a federally mandated collegiate tribunal,” said Peter Lake, president and director of the Center of Excellence in Higher Education Law and Policy at Stetson University College of Law, where he is also a professor. “There has never been anything like it in the history of American higher education, where the federal government has been so specific and directed in student corrective behavior.”

The Biden administration has put many of Trump’s changes on hold and is expected to announce its Title IX policies soon.

What changed?

Title IX is a federal law that prohibits sex discrimination in educational institutions receiving federal funds. In colleges and universities, Title IX is supposed to provide protective services to those who have experienced gender discrimination and punish those who discriminate.

When the Trump administration made a major overhaul of Title IX regulations in 2020, the change raised the definition of sexual harassment to a much higher level than ever before, while adding lengthy, prescriptive procedures for colleges to follow. regarding complaints, investigations and hearings.

Daniel Carter, president of Safety Advisors for Educational Campuses, said that under the 2020 regulations, “fewer cases would be brought under Title IX, but the practical impact was that cases brought under Title IX became exponentially more difficult. to facilitate”.

Colleges vary in how they interpret Title IX. However, in general, when a student or faculty or staff member comes to a Title IX office at a college, they are presented with two options: to pursue a formal investigation and hearing or to engage in a informal resolution process.

The Trump-era settlements provided a highly proscriptive account: 2,000 pages of how to conduct a grievance procedure. Previously, Title IX coordinators had the ability to interpret rules and regulations to create policies they deemed best for their campus.

Brett Sokolow, president of the Association of Title IX Administrators, said Title IX coordinators no longer have the flexibility to go “beyond basic requirements” and that the 2020 regulations have created a ” bureaucracy of monumental complexity” that Title IX coordinators must navigate.

Critics of the 2020 settlement said the formal hearing now had a chilling effect on victims. In many cases, these hearings must be conducted in person, and more and more lawyers are being used as advisers during cross-examinations.

“What we see in these hearings in practice is that these advisers become quasi-lawyers and many parties bring in lawyers to advise them, and they conduct interrogations as if they were in the courtroom,” said Alyssa Rae McGinn, vice president of investigations at Dan Schorr, a company that advises colleges on Title IX.

Create a chilling effect on reports

Critics of the current regulations have argued that the 2020 approach increases the risk of retraumatization for claimants due to the lengthy and intensive formal litigation process, which can take up to a year in many cases to settle.

People reporting gender-based discrimination have the option of pursuing an informal complaint process, which the respondent can choose to join voluntarily and which is more like a mediation process.

Since the release of the 2020 regulations, many who work closely with Title IX offices on college campuses say fewer students are choosing to go through the formal complaint process because of the nature of the hearings required.

Anika Awai-Williams, an attorney and former Title IX coordinator at Eastern Michigan University, said, “Students come to Title IX with fear, and so when you have the system looks a lot like Law and order on TV, it’s debilitating.

Currently, cross-examination can be conducted not by the parties themselves, but by counsel for the parties, who can basically be anyone, including a family member or friend, as long as they don’t not play an institutionally conflicting role, such as being a Title IX coordinator themselves.

Increasingly, many say, lawyers are being employed at these hearings during cross-examinations.

Awai-Williams said the current formal grievance process keeps many students away from reporting. She said the students refused to proceed with the reporting process once they learned what would be involved in a formal or informal process.

“I can’t really share numbers, but I’ve definitely seen less engagement when it comes to audiences… [A student said] I don’t want to do any mediation or alternative dispute resolution or I don’t want to write a letter to them. It was, can you just tell them I don’t want to see them anymore? ” she says. “It’s hard for them to do that. Anyone who has felt and suffered harm, I feel like there’s a constant concern about whether I’m doing the right thing? Am I always making the right decision? »

According to the National Sexual Violence Resource Center, sexual violence is already vastly underreported, with approximately 90% of sexual assault cases going unreported on college campuses. Additionally, one in five women is likely to experience sexual assault while in college, an experience that many victim advocates say can lead to students falling behind academically, dropping out of school, and dropping out. suffer from mental health problems.

Sokolow said that before 2020, only 5% of Title IX cases he oversaw would go through the informal process. Now, he said, 60-70% of the cases he sees are through the informal process.

“There are a number of meetings that I have as a Title IX administrator where I will explain the formal process to a complainant who says they want to pursue the formal process,” Sokolow said. “I tell them how long it’s going to take, tell them what all the steps are, mention the possibility of a resolution, and they can look at me in this very defeated and resigned way and say, ‘I don’t see how to put myself down. through it all.'”

Although Sokolow said it was ultimately up to the plaintiff to decide which process he wanted to pursue, he believes Trump’s regulations deter students from wanting to go through the formal process, which is the only avenue that can establish disciplinary measures for respondents. who are found responsible after investigation.

“I don’t like the fact that students feel somewhat pressured by the federal government to jeopardize the process they would rather pursue because they have to go to something very much like criminal court in order” , said Sokolow.

And after?

The Biden administration is preparing to release its own revised Title IX guidelines, a move that was supposed to be made in April of this year and has now been delayed.

Asked about the delay, a department spokesperson said the administration is “taking the time necessary to prepare a set of proposed Title IX regulations that ensure schools provide educational environments free of discrimination for students. In line with this goal, the ministry plans to publish the proposed regulations in the coming weeks. »

Title IX administrators hope the new guidelines will address issues that have led Title IX to look more like a legal proceeding than a disciplinary proceeding. They want more flexibility and less prescriptive regulations, clear policies and a policy that, as Carter said, “will stand the test of time.”

“Just give the institution the goal and give them a lot more flexibility in how they get there,” Carter said.

Carter said the constant changes to Title IX between presidential administrations “will continue to disrupt schools’ ability to provide safe learning environments if they have to continually go back and forth between doing things one way and doing another’s things”.

Once the Biden administration releases its proposed guidelines, they must undergo a public review process before taking effect.

Kelsey Murrell, a lawyer, said she hopes the new regulations will move away from this current legal approach.

“I want to see a better understanding that we’re not in court,” Murrell said. “That’s the whole point of going to Title IX instead of going to the police or suing in civil court. I think people often confuse the two. The goal here isn’t even punishment or compensation, it’s a matter of safety.

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