New Title IX Guidance

The DOE has released new Title IX guidance. Here is the official DOE Page.

Just from a quick scan, the thing that stands out to me is the focus on the language "sexual violence" instead of "sexual harassment."

 Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX. In order to assist recipients, which include school districts, colleges, and universities (hereinafter “schools” or “recipients”) in meeting these obligations, this letter explains that the requirements of Title IX pertaining to sexual harassment also cover sexual  violence, and lays out the specific Title IX requirements applicable to sexual violence.  Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX. In order to assist recipients, which include school districts, colleges, anduniversities (hereinafter “schools” or “recipients”) in meeting these obligations, this letter1explains that the requirements of Title IX pertaining to sexual harassment also cover sexual violence, and lays out the specific Title IX requirements applicable to sexual violence.

I'm not sure the purpose of this, whether this was just meant to cover a small component of Title IX, or to try to redirect the broader discussion (hopefully just the former). Either way, I don't really like the move. Title IX is much broader than just what comes to mind when we hear the term "sexual violence." Additionally, I think more clarification is needed on the harassment part than on the violence part. I feel practitioners are pretty good at distinguishing and punishing violence, but not so good at distinguishing and punishing harassment. There is far too much sexual violence, don't get me wrong, so focusing on that is a worthwhile endeavor and much of the guidance seems aimed at prevention procedures. But, I hope this is not going to take the spotlight away from the harassment and bullying components of Title IX - which still need a lot of clarification. 

Thanks to Jason Block (who you will be hearing a lot more from over the next couple years) for the tip. 

You can see some of our comments on the last DOE guidance on bullying here - plus, why I love ELA.

Comments

[Jason Block]

It's interesting that you bring up the harassment issue. Early reaction from the Foundation for Individual Rights in Education (FIRE) indicates that they're concerned about the same harassment definition omission. Their concern is rooted in the possibility of harassment policies impacting free speech. I think that perhaps the prevention resources aspect of the letter could have been released in a separate document; perhaps as an addendum to prevention programs OCR already has produced.

My understanding of the impetus for this document was confusion among institutions about the interplay between sexual misconduct and Title IX. This is a new frontier for practitioners and policy makers and comes out of recent court cases. I think the guidance does a good job a laying out what an institution needs to do to be in compliance. I was encouraged to see OCR lay out a clear standard of proof for sexual misconduct cases. I also think that the way the Department addressed the relationship between local law enforcement and the institutions was an important issue to discuss. For many practitioners, stepping on the toes of a police investigation can create animosity sometimes leading to threats of arrest of college officials. Requiring institutions to have Title IX coordinators to do investigations is also a plus. Some could argue that the Department should have been clearer about what form the adjudication body should take. Sometimes a conduct board is not the best vehicle to adjudicate these cases. However, I think they did the right thing keeping the form of the adjudication panel up to the schools. They did so with the caveat that the adjudication body be trained--this is key.

I was surprised that OCR applied these standards to K-12 institutions as well. I'd be interested to see what public schools do to become in compliance. Not having had much exposure to the K-12 realm, I wonder how much of an issue sexual misconduct is in post-secondary education. In addition, extending the school's jurisdiction to off campus may take high schools in particular, into uncharted and murky territory.