Complicated, but has a Positive Impact

The summer of 2020 was tumultuous for many reasons. Our campuses were trying to respond to increased racial tensions, managing the pandemic, and we were working hard to make changes as a result of the new Title IX regulations that would keep our campuses compliant.

The Title IX regulations that took effect on August 14, 2020, had a significant impact on the manner in which our campuses investigate and address claims of sex discrimination and harassment. Until now, there have been no binding federal regulations related to sexual harassment under Title IX, only administrative guidance issued by the Department of Education’s Office for Civil Rights.

The new regulations expanded the requirements for Title IX grievance procedures, which required significant policy and procedure revisions, and training. Below are a few of the 2020 changes:

• Narrowed the definition of sexual assault under Title IX
• Limited the obligation to investigate complaints only to conduct that occurred in the college’s program or activity (and not to unrelated off-campus conduct)
• Mandated response obligations of colleges (i.e., providing supportive measures)
• Provided more detailed grievance procedures
• Made hearings optional
• Allowed colleges to choose what standard of evidence to use (e.g., the preponderance of evidence v. clear and convincing)
• Required colleges to offer both parties an appeal from a determination regarding responsibility
• Implemented an evaluative/vetting process to ensure that the Title IX Coordinator, investigator, decision-maker, or any person designated by a recipient to facilitate an informal resolution process does not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent
• Required training for Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process

These changes were greeted with much consternation and controversy on many campuses. We have been operating under the new regulations for one year now while still navigating a global pandemic. If, for a moment, we review the Title IX guidelines through a historical lens, there is a complicated but positive impact. When you look around our campuses today, you will see a very different view than what you would have seen in the early 20th century. American society had a definite idea of what a woman's life should look like: wife, mother, homemaker. Women were generally not considered equals. They were expected to marry and raise children, not go to college. Those who did go to college were only allowed to participate in certain fields, such as teaching, nursing, home economics, child development, or social work.

Fast forward to 1972, as part of the Education Amendments of 1972, Title IX effectively leveled the playing field. Title IX prevents discrimination based on sex, ensuring that no person in the United States will be excluded from participation or from receiving benefits while pursuing an education in any program receiving federal financial assistance. In a historical context, Title IX became a triumph for women and girls who faced more gender barriers and restrictions than men. However, it is a common misconception that Title IX is for girls and women. The law actually benefits everyone, because it effectively eliminates discrimination based on gender--female, male, transgender and gender nonconforming.

It is crucial to understand different perspectives of what the August 14, 2020, regulations mean for students and the changes that campuses had to make. As stewards of education, we must ensure the best experience possible for our students, faculty, and staff. In the coming weeks, as we start the new academic year, please remain dedicated to learning about Title IX and brushing up on regulations periodically so that you can provide a safe and equitable learning environment for all who seek it. Our chapter in history depends on it.

How Centralized Policies Affect Productivity

I work at a community college that, like many of its peer institutions, is experiencing declining funding and, at the same time, escalating regulatory mandates. I recently had the opportunity to speak with our executive director of diversity and equity, Affirmative Action/Title IX officer about her challenges with regulatory requirements and how the establishment of a policy office and a centralized policy library aided her productivity.

Like many of us on campus, the executive director wears many hats, with the assistance of one shared staff member. Here at the college, she administers all programs related to diversity, equity, Affirmative Action, and Title IX, and is responsible for the review and investigation of complaints regarding discrimination, sexual harassment, dating and domestic violence, stalking, Title IX, and workplace issues. During our talk, the executive director noted that budgetary constraints and Title IX were her current challenges. Nearly half of her allotted budget, despite collaboration with other departments to share costs, goes toward campus-wide mandated training initiatives; in her opinion, considering today’s social environment, more training is needed above and beyond the required levels. In addition, a big chunk of her time is spent staying current on national news and the changing federal policy environment. Continual monitoring is necessary to remain ahead of the curve in managing risk, where missteps could be financially catastrophic to a small public institution. As an example, the executive director mentioned that what has been keeping her awake at night is a Proposed Title IX Regulation, released on November 16 for 60 days of public comment. This proposal came after the Department of Education’s decision in September 2017 to rescind prior guidance from 2011 and 2014, leaving in place the 2001 Guidance. These changes have left the college’s published policy in limbo for now, but it will require considerable revision in the not-too-distant future. It is still too early to do a deep dive into the work of revision and procedural considerations until the proposed regulation is finalized.  

Over my college’s 50-plus-year history, published policy has been a hit-or-miss affair, and what policy existed was more likely to be held in a multitude of forms scattered across departments. Since the 2013 creation of the college’s centralized policy office and policy library, the executive director claims to have experienced an increase in her office’s productivity. As she mentioned many times during our conversation, policy in her wheelhouse is always changing, which requires timely updates. She indicated that the services the policy office offers save her time by providing best-practice research, help with writing and editing during the development or revision stage, and shepherding the policy draft through review/approval processes; this allows her more time for implementing budget-friendly staff training and professional development strategies.