Higher Education Renaissance
Peter Lake is a Professor of Law who has never shied away from addressing the controversial topics that impact higher education with his trademark candid, unique, and often humorous approach. Eric Seaborg has created this podcast series to capture the insight of Peter Lake on the status of higher education. Eric will have Peter analyzing the key issues challenging the industry of post-secondary education and the future direction of our institutions across the nation.
Higher Education Renaissance
Title IX's New Chapter in Higher Education Justice
Have a topic you'd like us to discuss...just send us text!
The episode continues with an exploration of the tides changing within Title IX procedures in higher education. Witness the intricate dance of investigation strategies, where the single-investigator model is gaining favor. We uncover how the legacy of the DeVos-era guidelines persists in current practices and emphasize the mounting necessity for legal acumen in report construction. Peter Lake, with his wealth of experience, draws parallels between informal resolution processes and family court negotiations, offering a unique perspective on the delicate choices facing individuals in these situations. As we traverse the complexities of these regulatory shifts, we also consider the long shadow the Supreme Court may cast on the future of Title IX. This conversation is an essential compass for anyone looking to grasp the imminent changes and their potential impact on campus life and beyond.
The Title IX coordinator's job just changed in a big way.
Speaker 2:From MC1R Studios. This is Higher Education Renaissance with Peter Lake.
Speaker 3:With the new release of the Title IX regulations that we've all been anticipating. I thought it would be best for Peter to start out the podcast by giving us an overview of what the Department of Education has just put in front of us.
Speaker 1:The federal government intends to implement effective August 1st with no retroactive application. Now, whether that actually happens, and it is not clear to me where we'll be on August 1st, opponents are already lining up and sharpening their knives. The big challenge is that you really have to make some budget allocations now to be able to have any chance to be in compliance next year. And so if people don't move now, even if they intend to be ready and they have to be, they won't be.
Speaker 3:Talk to me first about the scope of this thing that prohibits discrimination not only on the basis of sex, but also sex characteristics, pregnancy or related conditions, sexual orientation, gender identity.
Speaker 1:Regulations are really specific about not only who's covered but for what. There's a section even on reasonable modifications of a program that goes down to you know microscopic detail about what someone might be entitled to. And there is a subsection specifically on lactation opportunities. And it's all a result of the department of ed having multiple issues that they've raised over the years, raising concerns about dealing with pregnancy that people don't know they have rights, that they don't know where to go, that the programs are not prompt and they're not well trained. Negotiations without justification. And they had settled a resolution with Troy University a while back and basically wrote the Troy Resolution into regulation. So it's very broad. Over the last couple of years they did a Babe Ruth. They pointed to the green monster and said I'm going to hit a home run right over the top of it and if you were paying attention you knew they were going to swing for that barrier. And so it's here now. There's never been this level of detail in federal regulations about pregnancy and parenting. This is a brand new standard.
Speaker 3:Sex characteristics. Is there an explanation for what characteristics that are not obvious to folks?
Speaker 1:I think they used a variety of terms that are LGBTQI plus community, to be as inclusive as possible for the forms of discrimination that people may encounter. And things that comes up is people will say, well, you don't look masculine or feminine this has come up with some trans people who will ask for a pronoun change and some will say, well, I can't use a male pronoun with you because you don't appear masculine enough to me, or something like that, and there are multiple ways that there could be characteristic discrimination. But the other thing is and frankly I've got victimized by this in my life a couple of times people thought I looked gay, so they attacked me for being gay. So people get discriminated even if they aren't in the community, if other people attack them because they believe they are.
Speaker 3:And you really don't know where that attack is going to come from.
Speaker 1:Oh, anywhere anytime. Yeah, I was on a visit with an official connected with the Department of Education and a campus visit and some college kids came out, two guys, both of us in heteronormative relations and these guys attacked us and threw a bunch of homophobic slurs at us and we thought we were going to get beaten up and we talked our way out of it. But they were.
Speaker 3:Well, let's talk about the coverage and protection of gender identity. Do you have insight on what they're trying to do here with gender identity? I mean, I know that they're obviously, with this, trying to protect that under Title IX, but then you've got a whole slew of other things as far as the athletes go and the locker rooms and things of that nature.
Speaker 1:Stepping back. It's so funny how it's back to the future because you know two of the big discussion points when Title IX was passed was toilets and teams. We're right back to 1970 on a couple of discussion points and you know the bathroom issues are going to be one set of challenges. You'll see it here in Florida because you know a public campus that segregates based entirely on origin at birth runs directly afoul of the new regulation. By the way, through the governor's office they've ordered the public schools in Florida to ignore the new regulations completely, and this has happened in other states. Now Attorneys general are meeting. I think they're trying to figure out who goes first and how they want to attack it. But they will.
Speaker 1:And with respect to athletes, because Title IX was built on the idea of trying to protect equal access to sports, on a 70s mentality of biological assignment at birth.
Speaker 1:You know they're being, I think, very methodical about how they want to drop regulations, specifically with respect to accepted conduct and sex-segregated sports, because you can have that.
Speaker 1:But what you're going to see is, I think, a very influenced regulatory drop late after the election from this department talking about trans athletes' rights, and you know whether that survives the polls is another thing altogether, but I think, out of fear that that may come down alone, a lot of institutions or states and I'm not suggesting I align with anybody or not on this, but I just, you know, predict it I think they're going to attack the current regulations, hoping they can defeat the trans athlete regulations before they ever chance to mature. And then meanwhile we talked before is the Supreme Court's watching all of this, and they've got Loper Bright, which we've talked about before, and they can put an end to this almost immediately by coming down with a decision that cuts regulatory power, and I mean they can drop a footnote in a case that sets up litigation very easily if they want to do it. So we're watching that like a hawk.
Speaker 3:Are you swaying one way or the other on where things are going to go with that?
Speaker 1:I wouldn't bet a lot of money at this track right now. And the biggest mistake you'd make if you went to the betting track with SCOTUS right now is betting with your hopes, wishes and instincts because you're going to get burned. So, boy I, I like the color, you know, of the uniform worn by that jockey. You expect to take a bath. You know the horse's name is cool, I'll bet on that. You're going to lose your money because you know Gorsuch surprised people with the Bostock case. And then you've got, you know, two law professors, one a former dean on the Supreme Court right now, comey Barrett, notre Dame, right, and you know they obviously know the implications of this. So I just wonder, you know, if you're going to get what some people think they might get. And they've shown the Supreme Court and the NCAA in Alston has shown a complete willingness to rewrite college sports. You know, with what you and I grew up with as college sports, you know that doesn't resonate with them.
Speaker 3:There isn't all of this stuff and I would say be careful where you place your bet it's like it's so interesting too, because you know, when title nine was coming away from sports and into the kind of the mainstream of administrating a campus, it was the protection against these, these predator athletes. You know that were, you know they just kind of ran the show. Things became noticeable Name, image, likeness and how this is all wrapped around. Title IX 100%.
Speaker 1:Yeah, I mean you can't disassociate one of the issues from all the others, and that's. You know, kind of where I sit, where I sit as I watch how the beach ball turns. You know, hey, if you're going to rewrite the rules of college athletics, you know why would you be. And hey, if you're going to rewrite the rules of college athletics, you know why would you be committed to a vision of college athletics circa 1972 or three? You know you'd be thinking more differently about this and game, game on. I mean, I think some of the more boring stuff in Title IX is actually the stuff that's more likely to get Supreme Court attention, like the due process issues.
Speaker 3:I know that we're going towards and you mentioned it right up front when you came on about Title IX coordinators and I noticed a lot in there that not a lot of folks, well, outside of higher ed nobody really notices it, but when you're in higher ed you notice it and a couple things and maybe you'll wrap them all up in the same discussion. But back to the option to use a single investigator model and that schools may choose to use this model. I'm confused by what that all means. Break it down for me if you don't mind.
Speaker 1:Yeah, 2020 was the big backlash against the so-called single investigator. So what is it? You know? Why would anybody backlash against it? And a lot of paper. Is it good? I give it a grade and it's only in exceptional circumstances that someone says that grade isn't accurate. And it's been used a lot in discipline in high schools and K to 12 for employees. It's actually a pretty common method of operating is to have somebody you know let's say, something happens at work, jench and the investigator calls you in. What happened? Now they said this, you say this, then we make a decision. That's a single investigator concept.
Speaker 1:It became white hot around application in Title IX starting after the 2011 letter. People were really concerned that the same person investigating shouldn't have the authority to be a final decision maker, and you know there was kind of a lot of pomposity around the idea that you could never have a good decision unless you separated investigator from decision maker. But truth is, there's a lot of places where that's done and it's worked for years, and the department most recently has made that point. So what are they saying now? They're saying well, if your state law or federal law in your jurisdiction permits it and not everybody does you can use single investigator for any type of Title IX issue that you want you could. Now whether people will do that or not is another story, because they know there's an embedded army of people out there that want to criticize and attack schools for doing it. I know there's at least one prominent plaintiff's attorney who basically said hey, you know, just wait, if people do this, I'll start suing him for damages. And he's already threatened people with lawsuits for things they haven't done yet, and you know he's had success. So people obviously are going to hear that kind of a message.
Speaker 1:You know, I think, what we're looking at. When it comes to particularly sexual harassment type stuff, it seems unlikely that people are going to have the courage to move back to a single investigator model for that type of sex discrimination anytime soon. That maybe some people will, but I think everyone will think twice Now. For other things, like athletic equity, they may actually stick with single investigator models and there are actually some pretty good reasons why that might be preferable even to the people who are involved. So let's say you're working at a college Ging and you don't like what your college did, you actually can use the new Title IX system as of August 1 to make a retaliation claim against your host institution.
Speaker 1:And the thing is, if it were me, if I had to do that, I don't think I want to go in front of a panel, you know. I'd rather go in front of a trained person and have a chance to negotiate and be sensible, because once you start putting it out to a group of people, everybody loses control of it and what could be a fixable moment turns into warfare. So I could see people moving in that direction potentially. But I think the DeVos-era regulations have put people in the frame of mind that, ok, maybe if you could use single investigator, for example, student-on-student harassment, you better be careful with it. You better think about bifurcation in some ways.
Speaker 1:And, more likely, where I think people might move if they're tempted, is they'll start using their investigators more aggressively to help determine credibility or probable outcomes, which they were forbidden to do under DeVos and that was common practice even before 2020. You'd have a panel over here or something, but they'd hear an investigator. So now you're the investigator. And well, gents, what do you think? You know you met everybody. Do you believe them? What are your recommendations? And, honestly, unless there was a good reason to deviate from it usually follow the recommendations of the investigator.
Speaker 3:I would think if you're a single investigator, you'd be a little nervous these days. Anyway, you're the person with the target on your back.
Speaker 1:Yeah, and the good ones are like the people who survive aerial combat in World War II how to maneuver and put themselves in the best position to make it hard to take them out. So you know, really careful investigators write tight reports, avoid the use of adverbs that aren't necessary. You know they look for the things that are demonstrable with no real contest and harp on those and there's a way to write an unreviewable report.
Speaker 3:Are these investigators now? Are they lawyers that have been hired? Is it falling into that model that you always talk about, where eventually, big departments, the leadership, will have JD backgrounds?
Speaker 1:Starting with 2020, reinforced by these regulations, you have to have legal report writing skills. I mean, they essentially have mandated the first year course in research and writing as part of it, so increasingly, people hire final decision makers or investigators with legal training. Or even if a panel like, let's say, your school uses a panel of decision makers, the chair is often an attorney, and so if the other people aren't attorneys, that person leads with the skills that are necessary to ask the right questions and put it into writing and even just turning a report around I mean, that's a lawyer's skill is to hear people talk and turn it into a report really quickly. You know journalists and cops do that, and lawyers.
Speaker 3:And they better do it right the first time right.
Speaker 1:That we live and die with how we create copy in our own world, and each world has its own copy dynamic. So a police report is not a journalistic op-ed opinion, and a Title IX report is different from those things as well.
Speaker 3:Back to the you know the other big issue, and that's the informal resolution process. Possibly, in lieu of having to do the court cases and the witnesses, the cross-examination, you see, can be more informal. You have that choice, is that correct?
Speaker 1:Well, you know, when you read this new document of 1,500 pages that came out, the first thing that hits you when you read it as it starts is no one likes Russian winners.
Speaker 1:You know, everybody's unhappy in a way and they want something else, what we technically call informal resolution. But a more prominent form of resolution which I think your average person would think of as informal, even though it's not styled that way, is the provision of supportive measures. Because people come in and they'll talk to their coordinators and say, I want no contact orders, I want my classes rescheduled, I want access to counseling. And the coordinator will say, well, do you want to file a complaint? And they'll say, no, I just want that. And increasingly that's becoming part of the practice, to the point now which is interesting in these new regs they now actually have this idea built in that you can go to someone who's neutral to modify your no contact orders and supportive measures. So it's starting to look like family court, where you cut it, you know, like a parental visit agreement, and then you go to a magistrate and say, well, I, you know I need to reform this because my wife's moving out of the country and I want the kids full time. And you know, that's again the way Title IX styles that. We don't call that informal resolution, but your average person would see it that way, because that's really what it is is it's. I don't want a hearing. I don't want bloodbath, just give me stuff that gets this person on the other side of me and we're managed and we move on with our lives.
Speaker 1:You see, increasingly people are seeking those kind of solutions. Now sometimes they want to go to a mediator or other informal dispute resolver, but I think a lot of the population still, you know, they think twice is if you go into one of these informal meetings, you start playing your hand in front of the adversary and it can come back to bite you. So you know, you start giving statements and then all of a sudden what you said shows up in a hearing later because you couldn't come to an agreement. And that's tricky. It is tricky. So you think, do I really want to dive into this pool Because I'm almost committed to it once I go in, you know, it's almost like, although there's no an absolute prohibition about forcing people into informal or forcing them to stay or forcing them to come to a resolution, you know, a sensible person realizes that if I've made an agreement to try to work something out and I don't work it out, it could make things worse, you know it's like everything is formal anyway.
Speaker 3:Yeah, like you said, yeah.
Speaker 1:So to me, where a lot of the informality of Title IX is lurking is in a place that's actually not denominated in formal resolution. It's in the supportive measure space, and my experience talking to people involved, they'll say you want a grievance? Hell, no, I want. Give me no contact orders, give me a class rearrangement. I want to get out of the space, move to something else. Just let me move on. We all want that. Now the challenge of that, I think, is going to be that the new regulations put a lot of emphasis now on environmental impact to other people. We may not have settled everything if we work it out just with ourselves. So you know, the British, the French and the Prussians met at Waterloo, but what did the Russians have to say about that? You know they're impacted by who wins that day.
Speaker 3:The winner of the day is not necessarily the winner.
Speaker 1:No, no, it's just not no no, it's like some of this rap stuff that goes on like two rappers get into it and they maybe they solve it between them, but then six other people are mad at them and it just there's a whole thing on the other side of front of you.
Speaker 3:So, Peter, if we skip over the Trump administration Title IX regulations, how do the current ones released by the Biden White House or the DOE compared to the previous Obama regulations?
Speaker 1:no-transcript. They want that to change, they want more reporting to come forward and, of course, on the other side of that are the people who say, well, maybe there's too much reporting, maybe some of it's inaccurate and causing a lot of drama and chilling effect. So we'll have to see. I could get hyper technical about this and really make everybody's eyes roll on the back of their head, but to be sort of observant on this, from a practical point of view it is similar to Obama era attitudes.
Speaker 3:Yeah. How about the expansion of the application in regards to conduct alleged that is outside the recipient's education program or activity? Am I understanding that to believe that you can still bring a Title IX case if one person claims a Title IX violation against another person based on something going to happen outside of the school?
Speaker 1:Yeah, I mean they've taken this pretty broad position on where activity program and benefit goes.
Speaker 3:Yeah.
Speaker 1:That includes now very specifically, where the college asserts disciplinary authority. So you know, if you can get in trouble for being drunk in public downtown, then that space suddenly becomes a space that Title IX just occupied. Oh yeah, and that's interesting because the Washington Supreme Court I think we talked about this in Barlow just basically took the position there's no tort duty to protect a student off campus. But that may not be the case with Title IX and some people assert very broad power over their students well beyond the physical boundaries of campus, and that could have implications for Title IX.
Speaker 3:Responsibility Is this all going to work its way out as cases start coming forward. Let's just say, hypothetically, this gets passed, it goes through. Are we sitting back and we're waiting for the types of cases that are going to come through, that are really going to more or less cement, with all this means? I mean a lot of it is a lot of vagary.
Speaker 1:A lot of Title IX is iterative, and we saw this the last time with 2020. No one had ever actually played the 2020 game before. It was all hypothetical, like Quidditch. One of the conversations that's hot in the field right now is will general conduct officers, like residence directors and student affairs directors, just push everything to Title IX if it has any kind of sex dimension to it at all, and so that becomes the new conduct office, broadly conceived and that's not the closest image. But is that where we're headed? And then will people over-report to cover themselves.
Speaker 3:So I'll just Does that tie into this creation of three categories of confidential employees who are not required to notify the Title IX coordinator about conduct? They can advise the person who's told them something, but they can't themselves notify. I'm confused about the three categories.
Speaker 1:Sure, well, it's a lot of blah, blah, blah, regulatory, to cut to the chase. It's like you know, if you talk to your minister, your lawyer, your priest, they're confidential, Right Okay. Unless you consent to share the information, they sit on it, okay. And then the school can designate people to play that role. So I could say athletic trainers are confidential, so you can go talk to them, they're not going to tell anybody. And then the third thing that they threw in which is interesting is there could be issues around internal review boards for research purposes, and so when people are doing IRB work, institutional research board work, they sometimes ask questions and they tell people we'll keep the information confidential. So you know, like the do you hate your boss survey, and they will do that. And for the and they say now, for purposes of the process they're engaged in, that stuff remains confidential, only shared with consent, typically in very unusual circumstances.
Speaker 1:It's gotten now that everybody goes to work wearing a badge. Your badge tells you I can talk to these people, but I can't talk to these people, and people are supposed to know who those are. They keep changing the badges around. The more significant thing is the employee notification requirements are very bright If you're a power person on campus corrective measures or you lead a department you're a mandatory reporter. If you're another type of employee maybe somebody working in buildings and grounds you can report. Your choice is either to report to Title IX or to offer information to a person that tells them how they can make a report. So you almost have to have a Miranda card with you at all times.
Speaker 3:So talk to me now about the effects on the Title IX coordinator per se. I mean the changes. I'm reading that they're saying that their autonomy now is decreasing.
Speaker 1:It may be I'm not sure it's a huge cutback but there are new requirements if the Title IX coordinator is going to file a complaint when the complainant doesn't want to do it.
Speaker 1:But in other ways the Title IX coordinator's role is expanded, and two really prominent ways. One is the Title IX coordinator can make decisions about when they see something, whether or not it should proceed at all through the system, in other words, whether it's sex discrimination, and so they become potentially the trump card on a lot of matters that might want to move forward, and my guess is that people will be talking with their coordinators more than ever about should this, can this proceed, and the coordinators have that authority. The other is they've been tasked with active monitoring, reporting. So they're going to be going out now and looking in the community to see where are the barriers to reporting, and then their employer has to require them to have the authority to fix that. So you know example let's say the athletic department is being a little bit obstinate in terms of wanting to share information. Coordinator determines that, goes to the president and says you know, we've got to fix this and that coordinator is a more powerful figure now. I think I see they're watching.
Speaker 3:They're watching. But that position now is more prominent than it used to be. In the very beginning it was just pick somebody. You're the coordinator Now. It's a big deal. There should be a participant within the leadership. You know that's on. That sits at that table. How would you advise the boards now?
Speaker 1:I think it really matters who you are and where you are, because you know in the public systems I mean, there are some places are already being told by their senior management do nothing If you fight them. It's very challenging. I think private institutions are in a different situation with this and have a lot of choices. I typically give the same advice all the time to boards on this is have really good people at an operational level who can lay out for you what they believe your institution needs and should be doing, as opposed to knee jerk stuff, because what I would, I think a big mistake would be. I just read the regs in 20 minutes and it makes me angry, so I'm going to call and tell my president you know, stop this, do that, don't do this and start to try to play Title IX coordinator when you're not really prepared to do it.
Speaker 3:The helicopter board member? I call them. Yeah, you know, they're just overly involved, yeah.
Speaker 1:There's always a Mike Tomlin out there that wants to step on the field and play with the players and get fined. And you know, when you're a coach, you've got to be coach. When you're owner, you've got to be owner, and is very significant here. But I also think it's important to hear the big messages, because every time there's a new iteration of Title IX we learn something. With DeVos we learned that we need to be more careful about ultimate conclusions that could ruin people's lives.
Speaker 1:About sexual harassment Big takeaway there here we're hearing a major message about take better care of your pregnant students and parents. You got to pick up the slack on this and you know who's opposed to future mothers and fathers. You know it's just that's a no-brainer that we should be taking care of people with having kids. That, I think, is a big takeaway message in this. The other I think big takeaway is we can always do better at listening to people who are having trouble with sex discrimination and let's improve our listening and responding processes so we're less likely to have, you know, larry Nassar type situations.
Speaker 1:And you know, don't forget, the department remembers this, you know. I mean, how long did that have to go on before somebody listened to young females who said this this isn't a medical procedure and this isn't necessary for sports. This is creepy, evil stuff and you know, again and again young people were turned away because no one was listening properly. So the big message is you're not going to let that through the gate anymore. You know you have this near level. If there are predators and people are trying to get this information up, you got to really listen carefully, because they might just be good, unfortunately covering their tracks. You can't just wait for everything to blow up and then respond to it.
Speaker 3:The process that was in place to have survivors to speak up was just never there. Yeah, you know, it was just never supported. I want to be positive about the intentions and it's sad that they become political footballs and then it changes the whole dynamic of an industry like education, because that's what it's done it's changed the industry. I mean, I'm going to be just waiting to see what they're going to do about this athletic gender identity issue. I don't have a feel as to where that could possibly go.
Speaker 1:You know I'm of the generation I remember watching Bruce Jenner and being of that generation. If you'd come to me and try to have a conversation about a trans athlete, I would have struggled to even understand what you were trying to communicate Exactly. I was raised in a culture where nobody talked about those things.
Speaker 3:No, you know, when I think back to Jenner and that was 1968, mexico City, one of the most volatile, important Olympics that changed Olympics going forward I think it really turned a tide in this country as far as Olympics goes, because people then start to fall down on the side of I love these guys because they won us a medal, but I don't like them because they represent this.
Speaker 1:Yeah, sports figures being major political impact goes as far back as Spartacus, because these people become very visible and prominent and absolutely can draw you into discourse at a political and social level, at the highest level of cultural dialogue. And I step back and I think you know people are asking really basic questions about college athletics what's fair competition? Who should get to participate? How should they be compensated? Who has an interest in the success of an athlete? Those questions really go in all sorts of dimensions. It raises a lot of issues and when you start to take for granted a certain set of rules that are implicit, you realize that a generation can go by and people will shake the tree, say, well, let's look at this through a different lens. I mean Dartmouth College basketball players as employees. It's fascinating.
Speaker 3:So when do you ever get out from under it?
Speaker 1:It's going to be an interesting summer and we're going to wait. Supreme Court will have to come out with Loper Bright by June at the latest. So we're just weeks away and I would imagine more news about potential litigation against the Biden administration's new rules, more people will start popping up. Lot of the major organizations have not released their positions on this yet, and so they're all trying to figure out. Like, what do I say about this? It's a little hard to know, because you know ACE got, for example. They wrote a letter. They got quite a bit of what they wanted. They didn't get everything. So what do you do? Do you stand up and cheer for this? Or how will a college attorney group answer this? What will a college discipline group say about it? But I think that's going to be interesting to watch and that'll give us a better idea of how the field's going to react.
Speaker 1:But I think everybody's in the same place right now. It's like there's so many variables in play that it's almost hard to know you know what direction to pick. There is such deep rooted feelings about what's happening in the world that people are willing to stretch to the limits of human behavior to make a point, and it's becoming more common than exceptional. I think a lot of people are at the point of frustration or ideation that they're moving towards very extreme ways of expressing themselves. And you wonder these days if to become an influencer, it's not simply enough to do something. You have to stage it up with the right preview and post view. And Edge Apocalypse just I wake up thinking about it and how, what it looks like and it's constantly changing in my head. Welcome to Edge-Apocalypse. Take care.
Speaker 1:Peter, all right, bye-bye.
Speaker 2:Bye. Higher Education Renaissance is produced by Eric Seaborg. Technical production by MC1R Studios. Artwork by Gin G Productions. We welcome your comments or program recommendations for future episodes at ericseaborg at gmailcom and thank you for listening you.
