What Institutions Need to Know About Title IX Now: Five Myths Debunked

July 07, 2017

The Trump administration has begun to act on its commitment to change the way it interprets and enforces Title IX. From the February rollback of the gender identity-based "Dear Colleague" letter (DCL), to the recent internal Department of Education Office for Civil Rights (OCR) memo eliminating the mandatory 3-year records audit, speculation surrounding future changes by the administration continues to reverberate through the halls of academe.

In a June 27 appearance at the National Association of College and University Attorneys’ (NACUA) annual conference, OCR’s acting assistant secretary, Candice Jackson, addressed some of the speculation that OCR would scale back or retreat from enforcing civil rights laws under the Trump administration, stating, “that's just not the case."

Ms. Jackson did indicate that what will likely change is how the Trump administration will go about fulfilling the charge to enforce the nation’s civil rights laws – with less confrontation and more cooperation than the previous administration. She said, "We will reorient ourselves at OCR as a neutral, impartial investigative agency…"

Despite these recent changes and Ms. Jackson’s commitment to a kinder, gentler OCR, there are many things related to Title IX that have not changed. Let’s look at five myths that remind us of what we need to keep in mind as developments continue to unfold under this new administration.

Myth #1: Title IX will disappear and Title IX coordinators will become extinct.


Fact: As we know, Title IX is a federal law enacted in 1972 that prohibits sex discrimination in education. Further, Chapter 34, Section 106.8 of the Code of Federal Regulations requires an institution to designate at least one employee to coordinate its efforts to comply with, and carry out, its responsibilities under Title IX.

Suggestions:

  • Stay the course. Even if Title IX were repealed tomorrow, a growing number of states have already adopted or introduced legislation to address sexual assault on campus.
  • Don’t use the change in administration as an excuse to cut your budget or staff related to sexual assault prevention and response. Title IX has been the law of the land for 45 years. Although the interpretation and enforcement standards may change as the pendulum swings back and forth from administration to administration, it is very unlikely that any administration will take the leap and try to repeal Title IX in its entirety.

Myth #2: Relax, the OCR’s “Era of Enforcement” is coming to an end!


Fact: The OCR issued its seminal DCL focused on Title IX compliance in April 2011, starting an “Era of Enforcement.” Since that time, OCR has opened 403 investigations of colleges for possible violations of Title IX. This includes 39 new investigations since President Trump was inaugurated on January 20. As of this writing, the OCR is still presiding over 339 open investigations.

Suggestions: 

  • Stay focused. While proposed budget cuts, reduced staffing, and adjustment to the scope of future investigations may lessen the sting of an OCR review moving forward, the fact remains that they are still open for business and institutions need to remain vigilant.
  • Know your laws. The Clery Act and the Violence Against Women Act (VAWA) are important Title IX-related laws that still remain and also require institutions to address and report incidents related to sexual assault, domestic violence, dating violence, and stalking.
  • Take this opportunity to step back. Even if changes are made as to how the federal government interprets and enforces Title IX, this time of uncertainty gives institutions a chance to revisit how they handle campus sexual assault.

Myth #3: We’re covered! We have a Title IX coordinator and several prevention programs for students and staff.


Fact: A significant, recurring factor from United Educators' (UE) recent review of student sexual assault claims was that the failure to ensure Title IX coordinators and investigators had appropriate training or experience frequently led to losses.

Institutions often have multi-year contracts with multiple vendors through their human resources, student affairs, or Title IX departments for in-person consulting and training, and online prevention training. This scattered approach to training can cause confusion and reduce effectiveness among faculty, staff, and students due to differing terminology and training examples.

Suggestions:

  • Empower your Title IX coordinator.
    • Whenever possible, refrain from assigning Title IX coordinator duties as an add-on to existing full-time positions.
    • See that the Title IX coordinator has the autonomy, support, and resources to ensure compliance with federal and state laws.
  • Conduct a training audit. Review training programs in an effort to unify your message and reduce costs.

Myth #4: We’re covered! We have policies and procedures in place to address incidents of harassment, including sexual assault.


Fact: While prevention efforts will always be important, what happens when an incident occurs? Are the lines of reporting clear? Is the institution prepared to conduct an investigation? Does the institution have a plan to manage negative publicity?

The leading allegations in litigation claims reviewed by UE included:

  • Negligence in the training of those who review or investigate sexual assault claims
  • Breach of contract/due process – failure to follow its own investigation procedures
  • Title IX – discouraged pursuit of complaint, untimely investigation, biased policy/procedure, unfair outcome

Suggestions: Notably missing from the above list is an allegation that the institution is responsible for damages because it provided poor prevention training. The leading allegations focus on the response of the institution once an incident occurred. An unbalanced emphasis on training for prevention over response can expose the institution to greater risk when the time comes to respond to an actual incident. Institutions should continue to seek ways in which they can be better prepared to respond and investigate a report of sexual assault.

  • Assess. Conduct an annual review of your policies and procedures to ensure they can withstand the challenge of litigation.
  • Budget. Review your past year’s expenses related to resolving Title IX issues such as attorney fees, mediation, and outside investigators. Consider committing a portion of that amount moving forward towards shoring up the institution’s response efforts.  
  • Train. Review training needs for those involved in investigating and reviewing incidents of sexual assault.

Myth #5: The number of reported incidents on our campus is low, so things must be okay.


Fact: Any changes made in the interpretation and enforcement of Title IX by the current administration will not change the fact that the problem of sexual assault still exists.

Consider that while in college:

  • One in five women will be a victim of completed or attempted sexual assault.
  • One in 16 men will be a victim of sexual assault. (Krebs, Lindquist, Warner, Fisher, & Martin, 2007)
  • Nine of 10 female rape and sexual assault victims knew the person who assaulted them. (Fisher, Cullen, & Turner, 2000)
  • More than 90% of sexual assault victims do not report the assault. (Fisher et al., 2000)

YET…40% of colleges and universities reported not investigating a single sexual assault in the past five years. (U.S. Senate Subcommittee Report, 2014)

Based on those statistics, it becomes clear that low reporting numbers are more likely indicative of an unhealthy campus climate. A campus community that is uncomfortable with reporting incidents of sexual harassment and sexual violence puts everyone at greater risk. The risks and costs associated with addressing campus sexual assault can have significant personal, reputational, organizational, and financial consequences for all involved, including the institution.

  • Personal: Incidents can cause long-term physical and emotional harm to students, staff, and faculty.
  • Reputational: Prospective students and their parents are aware of damaging headlines that can go viral within seconds due to social media and 24/7 news cycles.
  • Organizational: Administrators in “crisis mode” are distracted from their mission. Strained relationships and divisions may result in less efficient reporting structures.
  • Financial: The institution can suffer a bottom line impact due to claims and legal expenses as well as potential decreases in enrollment or alumni donations.

Suggestions:

  • Review reporting policies and procedures.
  • Regularly disseminate your reporting policy to campus constituents.
  • Track and monitor reporting data to identify systemic issues and problem areas.
  • Remove barriers to reporting.

Despite all the speculation surrounding Title IX, institutions should continue working towards achieving an inclusive workplace, protecting students and employees, preventing issues that lead to complaints and/or litigation, developing efficient use of resources, preparing for challenges in advance, and meeting compliance requirements. Creating and sustaining a thriving campus culture is the goal, and an institution’s commitment to debunking myths surrounding Title IX plays an important role in achieving it.

By David Sipusic, JD, Canopy Programs solutions consultant

Visit our Webinar page to view a recording of our May webinar, "What Business Officers Need to Know About Title IX Now."