The U.S. Education Department this week has held a weeklong virtual public hearing as it reviews its regulations and other actions related to Title IX in order to implement President Joe Biden’s executive order. The process is expected to be highly charged and take several months.
On Thursday, the American Association of Community Colleges (AACC) presented its views on Title IX, which were based on AACC’s previous positions on the law’s regulations. Below are some of the major points made at the virtual hearing by David Baime, the association’s senior vice president for government relations and policy analysis.
1) It is the top priority of community colleges to allow all students to fully participate in all programs and activities. This includes ensuring against discrimination or harassment on the basis of sex.
Community colleges are wholeheartedly committed to Title IX’s mandate that, “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” This tenet is fully consistent with the colleges’ guiding principle, as open access institutions, of providing affordable and accessible educational and training opportunities to all members of society, particularly those who have been historically underrepresented in higher education.
2) The new regulations should take into consideration the significant differences in the characteristics of higher education institutions and avoid a one-size-fits-all approach, while providing clarity and rational flexibility.
Any new Title IX regulations should delineate the core principles of what it means to fulfill Title IX’s mandate to prevent and address sexual harassment but that also afford institutions flexibility in developing procedures that implement those established principles. This is important to community colleges because, in general, they have different characteristics from other colleges and universities. Perhaps the most important aspect of community colleges in this context is the fact that they are primarily non-residential institutions. In addition, many community colleges deliver all or part of their educational programs on a variety of remote locations away from the main campus, often in work-based learning environments or small facilities.
3) Title IX regulations should not require colleges to operate as criminal or civil courts of law in providing a fair process of review for survivors and respondents.
Title IX cases have the same objective as other campus disciplinary actions — to ensure that students behave appropriately and foster a learning and social environment that allows all students to flourish. Wherever possible, Title IX policies should mesh with campus-developed procedures that the institution generally uses to regulate and sanction behavior. A Title IX process that transforms the educational and academic nature of college disciplinary processes into a quasi-court system that colleges are ill-equipped to create and maintain, is likely to be problematic from the start.
The current Title IX requirement that proceedings include a live hearing with cross-examination, with appeal, has proven to be extraordinarily unpopular on community college campuses. This is due in part to its cost and complexity, but even more so because of its potential to discourage the filing of complaints. The live hearing requirement essentially ensured that Title IX proceedings would be entirely separated from other disciplinary procedures. New policies towards the institutional handling of Title IX complaints are needed.
4) In the rule-making process and in enforcement efforts thereafter, the Department should regard community colleges as reliable partners and productive participants in our collective efforts to achieve the purposes of Title IX, and not as opponents or barriers to compliance.
For many community colleges, efforts to comply with the shifting Title IX regulatory structure have been expensive and time-consuming. Admittedly, this is a difficult assessment to draw in the abstract, since even one case of discrimination on the basis of sex cannot be tolerated. Compliance costs related to creating and maintaining a legalistic and litigation-like process necessarily come at the expense of educational and related services that might otherwise have been provided to students. Title IX administrators at community colleges often carry a variety of other responsibilities out of necessity. This is the reality that community colleges face and every effort should be made to promulgate regulations that are not unduly expensive and, related to that, are sufficiently simple and straightforward such that they can be implemented with confidence by colleges of all scopes and sizes. Insofar as is possible, they also must be designed with an eye to reducing the likely need for future modification.
However, it may ultimately choose to rewrite Title IX regulations, AACC hopes that the department will engage in energetic, ongoing and supportive outreach to help institutions meet Title IX’s goals. A “gotcha” or punitive posture is antithetical to successful Title IX regulation, and yet that is a common campus perception by those charged with the responsibility of implementing the policies.
The federal government has an obligation to ensure that Title IX is enforced; colleges have a corresponding obligation and mission-interest to make campuses welcoming, safe and secure environments that promote the interests of the entire academic community. New regulations must be designed with this common interest in mind.