University and College Procedural Justice Under Title IX Regulations

Title IX was effective on June 23, 1972, which is the federal civil rights law in the United States of America that was passed as part of the Education Amendments of 1972. The US law prohibits sex-based discrimination in any school or any other education program that receives funding from the federal government. Title IX applies to all schools, including colleges and universities that receive federal funding. Colleges and Universities depend on federally-insured loans that help student pay for post-secondary education, which makes it vitally important for these schools to comply with federally enforced standards of conduct especially based on sexual orientation. In this article, we focus on the uses of Title IX in colleges and universities across the United States of America.

The background of Title IX is to invest time and resources to universities that can develop a reformative approach to sexual misconduct on campus. Allegations of sexual misconduct can leave the universities liable for Title IX violations. Some researchers believe that constantly changing regulations on sexual misconduct by colleges and universities make it difficult for them to address misconduct allegations. Certain issues of confidentiality, privacy, legality of the claims are components that universities and colleges must adhere to protect the alleged victim of this misconduct. Certain flaws in the 2020 Regulations for Title IX are seen as imperfect by legal researchers. For instance, denial of due process protections to the accused students and the application of Title IX in the university setting by expanding when and how universities can use informal dispute resolution mechanisms, like mediation to resolve Title IX claims. Certain legal researchers have published their ideas on the Biden-Harris administration that seek to revamp Title IX which should consider the increased use of informal dispute resolution mechanisms.

According to ADR researchers, the Department of Education’s Office of Civil Rights (OCR) arguably prohibited universities from using informal dispute resolution when handling sexual harassment claims. The OCR expanded sexual assault to include sexual violence but inclined universities to state their grievance procedures that “mediation would not be used.” There is concern that the universities requiring complainants to work out problems directly with respondents, could in fact, cause trauma or unexpected harm to the victim or respondent upon resolving their alleged dispute. There are ADR researchers that discourage universities “from allowing the parties personally to question or cross-examine each other” using the rationale that their interactions could be traumatic or intimidating for complainants. The national call for action has put a spotlight on universities and colleges to provide balanced and fair due process to all complainants that have been subjected to sexual misconduct.

University and College regulations diverge from previous guidance through narrowed definition of sexual harassment; changed what constitutes notice to, and knowledge of the sexual misconduct; changed the institution based on a potential Title IX violation; and modified the formal hearing process, which includes the cross-examination requirement. Since complainants must show a burden of proof from preponderance of the evidence to clear and convincing evidence that this misconduct has occurred it has changed many procedural justice regulations within a university or college guidelines. Universities might be limiting investigations to misconduct that occurs during educational activities. The 2020 regulations require that sexual harassment be severe and pervasive and objectively offensive suck “that it denies a person equal educational access.” The regulations altered requirements for formal hearing processes which have drawn criticism to a formal disciplinary action that can be harmful for college students early in their career.

Changes have also occurred in permitting universities to limit the number of employees who are designated as mandatory reporters. The number and type of mandatory reporters has also changed: rather than specific categories, an institution can now decide whether to make all employees mandatory reporters or to designate some employees who can act as resources to students without triggering a reporting requirement. In today’s society, it is important to take the viewpoint of the students involved because their future is on the line and certain mandatory reporters, or counselors can make the difference in student’s attitudes involving sexual misconduct.

Researchers on Title IX offer suggestions on process of informal resolution processes in colleges through new institutional policy changes.

• Increase trained personnel that can handle sexual misconduct actions

• Increase the number of people who can report a Title IX violation

• Increase timely response and intervention of an alleged incident

• Create methods of informational mediation process

• Determine the severity of the alleged sexual misconduct

• Equitable solutions to an allegation or violation

• Create a pathway to prevent defamation or integrity damages to the college students involved Increase confidentiality of the internal process

• Find a solution that helps the student finish their degree or certification after an incident

References:

Health and Human Services. (2022) Title IX of the Education Amendments of 1972. https://www.hhs.gov/civil-rights/for-individuals/sex-discrimination/title-ix-education-amendments/index.html#:~:text=Title%20IX%20of%20the%20Education%20Amendments%20of%201972%20(Title%20IX,activity%20receiving%20federal%20financial%20assistance

The United States Department of Justice. (2022) Title IX legal manual. https://www.justice.gov/crt/title-ix#II.%C2%A0%C2%A0%20Synopsis%20of%20Purpose%20of%20Title%20IX,%20Legislative%20History,%20and%20Regulations