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.

Where do Your Procedures Live?

Throughout my years working in policy, I have found that there is one area of little agreement and great discussion—whether or not policies should contain procedures. While there may be something to be said for making a clear distinction between these two instruments of administration, they are inextricably linked to each other: most agree that a policy is not worth much if readers are not told how to “follow it,” i.e., not given procedures or constraints for compliance.

At Cornell, we decided right from the beginning that four criteria would be common to every university policy: (1) possessing broad application across the university; (2) requiring senior-level approval; (3) increasing efficiency, ensuring compliance with law or regulation, or protecting from audit; and (4) containing constraints or procedures for compliance. With that in mind, we began our policy journey, before the existence of the Internet, believing that a university policy must contain even the most granular procedures, to protect the university from any potential claims of ignorance, upon an individual’s non-compliance with policy. This, of course, yielded outlandishly long policy documents, such as our 300-plus-page “Accounting System” policy (which was, thankfully, retired many years ago).

With the advent of the Internet and in the years since, hypertext links have become ubiquitous and expected, and no employee can function without the ability to bounce around from website to website, virtually from office to office, gathering whatever information is needed to complete the task at hand. But where does that leave the policy developers, when considering what procedures to include with a policy, on behalf of the institution? And who takes the responsibility to issue, maintain, and update these various items as needed? I imagine the answers would be wildly varied, and I doubt there is a single institution that would any longer champion the “tomes of yore.”

Cornell’s solution has been a gradual reduction in the number and complexity of procedures contained in official university policies, opting for a more distributed approach, to the point now where most “how to” instructions are housed on sites within their respective administrative areas. But our policies still are required to contain at least a short overview of procedures, with information on how to obtain the minutest of procedural details, on an office website or through other means. We accomplish this balance of completeness with brevity during the policy’s development, or during an existing policy’s periodic review. The balance here, and likely at your institution, depends upon the relative resources available, the complexity and length of the procedures, and an assessment, through judgment, discovery, and analytics, as to the most logical place for the user to look.

Perhaps your institution has a different solution, maybe even to the point that your policy function is not responsible for the maintenance of any procedures at all. However, it is a worthy exercise for institutions to consider these aspects of policy management. I’ll close my post with a battery of questions, designed to elicit opinions and spur discussion. There are no wrong answers.

• Do your policies contain procedures for compliance? If not, do they point clearly to the location of the procedures?
• Who owns procedures, and who is responsible for updating them?
• Does your policy process include the development of procedures?
• What resources are available to your policy initiative, and is it realistic to expect procedures to be developed through the same system? …and for the central policy library to be the place to house procedures?
• If procedures are housed outside of your institution’s policy initiative, how does your institution ensure that procedures are kept up-to-date and linked to policies?
• Do you have separate templates for your policies and your procedures? If not, would this be an effective way to develop policies at your institution? If so, would it be effective to combine them into one template?
• If your institution’s policies contain any procedures, are minor changes to procedural elements of your policies required to pass through your entire policy process?