After a Month of Title IX Turbulence, Questions Still Loom Large for Schools and Universities

Editorial by Ryan Thompson, Esq.
THOMPSON ESQUIRE PLLC

September 23, 2020 – It has been a little over a month since the federal government mandated that colleges, universities and K-12 schools be in compliance with the new Title IX Regulations, and so far, from this practitioner’s viewpoint, many of the questions and conundrums that institutions first faced still linger.

While some of us have been obsessed in these Regs from the moment they arrived on our virtual doorsteps back in May, others have set aside the 2,000-page document to perhaps read once the immediate concerns of setting up school amidst a nationwide pandemic were first addressed.

But now students are back on campus, and the cases are coming in. And Title IX Coordinators, College Deans, K-12 Principals and General Counsels are trying to manage the procedural minefield that these Regulations have helped set.

Some institutions that had previously been confident that they fully understood what these new Title IX Regulations require (and thus, what their new policies say) are suddenly realizing that these cases, under these new rules, are far more complex than they first appear on paper – even when it’s 2,033 pages of paper.

As I said months ago: “It seems like the Department of Education did not foresee the level of unintended complexities these Regs create. It's as if the Department designed a new and experimental airplane on paper, and then mandated all the airlines use it, yet has not only not tested the plane to see if it flies, but hasn't even put it through the flight simulator.”

But the time for simulation and preparation is now over. We have real cases, with real people, and real lives are at stake. And the more I analyze these Regulations, and the more I work with schools and universities trying to navigate them, the more procedural pitfalls, technical tripwires and tactical loopholes are exposed.

I still await answers from OCR’s OPEN Center on several of my questions from last month, including how to handle partial reports, and whether such are permissible to essentially allow process shopping. After all, these Title IX Regulations didn’t create one new process, they created two for most schools.

And we also remain curious as to whether unresponsive answers by a party/witness are considered adequate to satisfy OCR’s strict cross-examination mandate.

Some of us learned on August 13, just hours before the Title IX deadline, that applying common sense to the interpretation of these rules is not advisable, when OCR clarified its all-or-nothing position on cross-examination. To invalidate potentially hours of direct and cross-examination simply because a party or witness chooses not to answer a single final question seems illogical, inefficient and contrary to the truth-seeking goals we all should aspire to attain.

Despite now being required to essentially arrange fully functioning quasi-court systems on campus, complete with a presiding judge who must properly rule on the relevancy of evidence and cross-examination questions in real time, the Regs have also deviated and made these processes even more restrictive with respect to certain evidence and “hearsay” than our actual courts do. 

While perhaps some of the due process safeguards that the drafters may have originally written with well intentions may seem workable on paper, some of them also demonstrate a real lack of experience and knowledge of the realities that the parties, witnesses and role-players live within.

The idea that interim transcript and degree holds can no longer be imposed without completion of the process just means that engaging in delay tactics now becomes sound strategy for someone who wants to get to the end of the semester and withdraw or graduate without any consequence. What about cases that occur just days or weeks before graduation? With these Regs, the ability to cause procedural interference and find legal loopholes that stall the process is easier than ever.

We now risk reducing these crucial matters into lawyerly contests. And for some institutions that are also governed by state laws on these procedures, like New York’s “Enough is Enough” statute, where and when the legislation is preempted can be complex and cumbersome.

Again, it is my sincere hope that, regardless of how much some people may differ on procedural views or legislative opinions, we all do share the same common goal of having these processes ultimately seek and find the actual truth of the matter.

Hidden beneath all of this political infighting, institutional policy reform and due process debate is the very clear and basic purpose of what our Title IX investigations and hearings are designed to do: to elicit the truth. And to do so in a way that is least harmful to those involved.

So, as oddly ill-informed and unprepared as the federal government has appeared to be with this entire Title IX Regulation process, we all must accept what currently exists as law and operate in accordance. And for those of us who believe a new American president will be a definitive solution if elected, please keep in mind that, even if that is likely true, it would still take well over a year based on what legislative analysts tell me.

“Regardless of whether the 2020 Title IX Regulations are here for another year or two, or here for the foreseeable future, we must navigate these cases within their murky seas. And for those of us operating as Title IX Coordinators, hearing officers, decision-makers and investigators, we must swim in the neutral waters that objectively exist between the political tides and societal swells on either side.” – Ryan Thompson

Through all this Title IX turbulence, the need for schools and institutions to demonstrate their ability to properly handle reports, investigations and hearings has never been more critical. Some of the harshest critics of the Regs have claimed that these new Regulations are constructed in a manner that will encourage systematic failure, increase liability and litigation, and cause a chilling effect that will greatly reduce the number of reports. Critics have claimed that the Regs will permit schools to no longer address many incidents of sexual assault, dating/domestic violence, stalking and harassment.

And while I do not disagree with some of these criticisms, I think that, to the contrary, now is the time for schools and institutions to devote more resources and efforts to these processes than ever before (including cases that fall within Title IX jurisdiction and those cases that fall outside of Title IX jurisdiction). I believe that this new Title IX spotlight offers universities, colleges and K-12 schools the unique opportunity to rise to this occasion, become more proficient at how they handle these reports and these cases, and to truly build impartiality, neutrality, respect and dignity into these processes for all.

If we can do that now, amidst a pandemic, and under these current Title IX Regulations, just imagine how well we can handle these cases in the future when we have new, more intelligently designed laws to operate under.