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Title IX practice becoming more legalistic

Administrators working in Title IX offices at colleges across the nation have noticed a change in recent years: their jobs and the work that they do is increasingly reflecting that of a court system.

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

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

The Biden administration has placed many of the Trump 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 at educational institutions receiving federal funds. At colleges and universities, Title IX is supposed provide protective services to those who have suffered sex discrimination and to punish those who discriminate.

When the Trump administration conducted a major overhaul of the Title IX regulations in 2020, the change elevated the definition of sexual harassment to a much higher standard than ever before, along with adding lengthy prescriptive procedures that colleges must 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 subject to Title IX, but the practical impact was that those cases that are subject to Title IX became exponentially harder to facilitate.”

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

The Trump-era regulations provided a heavily proscriptive account: 2,000 pages of how to conduct a grievance proceeding. Before, Title IX coordinators had the ability to interpret the rules and regulations to create policies that they saw as best for their campus.

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

Critics of the 2020 regulations said the formal hearing now has a chilling effect on victims. In many cases, these hearings are required to be conducted in person, and increasingly legal counsel are being used as advisers during cross-examination.

“What we are seeing in these hearings in practice is that these advisers are becoming quasi lawyers and a lot of parties are bringing in lawyers to serve as their advisers, and they’re conducting questioning as if they’re in the courtroom,” said Alyssa Rae McGinn, vice president of investigations at Dan Schorr, a company that advises colleges on Title IX.

Creating a Chilling Effect on Reporting

Critics of the current regulations have argued that the 2020 approach raises the potential of retraumatization for complainants due to the lengthy and intensive formal proceeding process, which can take up to a year in many cases to settle.

Those reporting sex discrimination have the option to pursue an informal complaint process, which the respondent can choose to voluntarily join and reflects more of a mediation process.

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

Anika Awai-Williams, a lawyer and a former Title IX coordinator at Eastern Michigan University, said, “Students come to Title IX with fear, and so when you have the system look very much like Law & Order on television, it is debilitating.”

Currently, cross-examination can be conducted not by the parties themselves, but by the parties’ advisers, who can essentially be anyone, including a family member or a friend, so long as they do not pose an institutionally conflicting role, such as being a Title IX coordinator themselves.

Increasingly, many said, lawyers are being employed at these hearings during cross-examination.

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

“I can’t really share numbers, but I definitely saw less engagement in regard to the hearings … [A student said] I don’t want to do mediation or alternative dispute resolution or I don’t want to write them a letter. It was, can you just tell them that I don’t want to see them anymore?” she said. “That’s tough for them to do that. Anybody who’s felt and experienced harm, I feel that there is a constant concern that am I doing the right thing? Am I making the right decision all the time?”

According to the National Sexual Violence Resource Center, sexual violence is already largely underreported, with an estimated 90 percent of cases of sexual assault going unreported on college campuses. Additionally, one in five women is likely to experience sexual assault during college, an experience that many victims’ advocates say can drive students to fall behind academically, drop out of school and suffer mental health problems.

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

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

Although Sokolow said that it is ultimately up to the complainant to decide which process they want to pursue, he believes that the Trump regulations deter students from wanting to go through with the formal process, which is the only route that can establish disciplinary measures to respondents who are found responsible after an investigation.

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“I don’t like the fact that students feel somewhat coerced by the federal government into compromising the process they would prefer to pursue because they’ve got to go to something very much like a criminal court in order,” said Sokolow.

What’s Next?

The Biden administration is preparing to release its own revised Title IX guidance, a decision that was expected to come in April this year and has now been delayed.

When 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 are providing students with educational environments free from discrimination. In line with this goal, the department anticipates releasing the proposed regulations in the coming weeks.”

Title IX administrators are hoping the new guidelines will address issues that have led to Title IX looking more like a legal process then a disciplinary one. They want more flexibility and less prescriptive regulations, clear policies, and a policy that will, as Carter put it, “stand the test of time.”

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

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

After the Biden administration releases its proposed guidelines, they must undergo a process of public review before they go into effect.

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

“I want to see a better understanding that we are not in a court of law,” said Murrell. “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 conflate the two. The goal here is not punishment or compensation even, it’s about safety.”

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