I'm confused about Title IX

March 25, 2022 7:07 PM

I'm trying to understand why faculty/staff are investigated by the same Title IX policies and procedures as students. Students perpetrators are apparently protected in part because of legal precedent that they have 14th amendment rights to education. But it doesn't seem like that would apply to faculty/staff who don't have a fundamental right to any particular job (tenure aside). Do you understand this?

This might be too esoteric for ask.metafilter, but maybe not. And, I know YANML.

It seems to me that my campus is using the Title IX process to protect the establishment and cause undue harm to students. I'm wondering whether this is just a smokescreen, or if I'm missing some key connection between the legal protection of students and investigations into faculty/staff.

I'm looking for either some explanation or probably more ideally, writings on this issue. Of course, if there was someone to talk to about this, that would be even more interesting.

Of course, the ultimate goal is not necessarily to understand this particular issue, but to improve the climate in my university. But, I've read most of this book and the relevant chapter in this book, and I'm still confused, because I didn't find in either a clear distinction between faculty/students perpetrators. I'm happy to read other books if anyone has a particular recommendation either on this issue or on reducing harassment and discrimination effectively in an R1 university setting. My background is STEM not the law, which makes this a bit challenging, so I might have missed it in those books.

posted by lab.beetle to Law & Government (6 answers total)

Title IX applies to all employees, not just students, including faculty & staff. There is plenty more guidance from the Department of Education through the Office of Civil Rights.

Rights derived from the 14th amendment would be a floor; the regulations and school policies based on the OCR guidances would be what is relevant to active administration. And organizations absolutely end up drafting processes that end up serving their powerful rather than the more likely victims. (Even when they don't intend to, this is a hard problem to avoid. And they have personal incentives not to avoid it.)
posted by mark k at 10:19 PM on March 25, 2022 [4 favorites]

Best answer: To add to @mark k's points:

Individual institutions must draft their own regulations that follow Title IX policies (and assorted mandates) that come from the Dept. of Education. E.g., in spring of 2020 the Dept. of Ed (under DeVos) scripted more policy mandates for Title IX processes. Our own Title IX team had about 12 weeks to try and wrap their heads around these expectations, figure out what in our regulations needed to change, draft those, get them approved in the proper ways... it was a challenge.

In our case (a SLAC), I wouldn't say that organizations "end up drafting processes that serv[e] the powerful," but (a) our processes must fit the kind of institution we are (NOT an R1, for example), with the kinds of human resources we have; (b) the new expectations from DOE created more incentives to make our processes more "judicial" and less educational...although, to be honest, that had already started happening for a lot of (societal) reasons. In this new process (and over the last 5 years), we've seen a lot more lawyers being hired, which of course ends up being an issue of which student has more resources. [That said, at our campus, we haven't yet seen that the presence of lawyers inhibits finding culpability or with setting reasonable sanctions.]

I'm happy to talk to you if you want; my background is not law, but I have several years of experience at my institution getting trained in Title IX and our own regulations, and sitting on a few hearings (for students).

The new regulations by the DOE ended up shifting our regulations significantly when it comes to students vs. faculty/staff. It used to be that students went through this documented, known process whereas faculty/staff investigations/sanctions were more of a black box process, done by our Dean of Faculty rather than by the Title IX personnel. Since Fall 2020, faculty and staff are beholden to the same processes as students (although students cannot sit on those hearing boards).

Sorry this got long.
posted by correcaminos at 4:49 AM on March 26, 2022 [4 favorites]

Everyone has a right to due process. For a public university, employees may have a consistutional right to due process. Even if Title IX were solely for students rights, you can’t have a quasi-judicial system with no rights for the accused. It just would not be fair, and its integrity and trust would be undermined.
posted by haptic_avenger at 5:51 AM on March 26, 2022 [2 favorites]

Response by poster: heptic_avenger: Your response feels a bit like trolling. I know that the student's legal rights include due process, but I never said that was my problem. My problem is my university's claim that as educators they are uniquely unable to sanction an employee that would be fired in many other employment settings. E.g. the problem is severe or pervasive but not severe and pervasive, the DeVos standard. Does or why does that standard apply to employees?

correcaminos: I'll send you a mail, I would really appreciate chatting.

mark k: that link is about who is protected from discrimination, not who is protected by the legal framework that protects student respondents because of their rights to an education. I'll keep looking through it though, thank you.
posted by lab.beetle at 7:21 AM on March 26, 2022 [1 favorite]

Ok, I think I understand your question better. employees of a public institution (or employees covered by Title IX because the school is federally funded) in fact have more/different rights than private at-will employees who can be fired for any reason. One of those rights is to have the regulation correctly applied. The federal T9 regulation preempts less specific federal law (like Title VII) and state law that use the less demanding defintion of harassment (severe or pervasive). I haven’t dug more into the history of the T9 statute and regulations, but it would seem really difficult to argue that employees accused of harassing a student cannot be governed by the same standards as accused students. Maybe there is some administrative law argument that T7 and T9 must be parallel, but not that employees and students must be treated differently. Anyway, I think Biden is close to announcing a new proposed T9 rule.
posted by haptic_avenger at 8:06 AM on March 26, 2022 [1 favorite]

You might want to contact various Title IX officers at peer institutions, along with grad student union officers, which are often pushing for reforms more than anyone else. I know the Harvard grad student union, for example, has been advocating to revamp the Title IX process.
posted by coffeecat at 9:32 AM on March 26, 2022 [1 favorite]