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Slide #13 - Recommendations / Best Practices for Compliance

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Slide #13 - Recommendations / Best Practices for Compliance

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All policies should be more accessible to everyone at the school/university so that they are informed and aware of procedures.

Provide annual training to staff, faculty, and students to make accessibility a valuable option.

Stay informed with Title IX policies as the presidency changes, as that is when there is typically a change.

Understand federal guidelines and how they will be implemented to ensure policies and legal guidelines are being followed on your campus.

Read your school handbook for specifics to see what Title IX recommendations they follow for due process. For example, do they follow the single investigator model or not allow live hearings? These are essential things you should know when working with students.

Distinguish the difference between state and federal recommendations and laws. Depending on where you live and work, recommendations may contradict each other and make for controversy in Title IX compliance.

Advocate for regular audits within Title IX to assess the quality of campus due process for fairness and equitability.

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As stakeholders, being aware of your freedoms on college campuses is essential. The Foundation for Rights and Freedom of Expression (FIRE) has published a book, Guide to Due Process and Campus Justice, which outlines the rights of students to obtain fairness within their due process rights. It is still important for all stakeholders, especially educators, to be informed for students. Not only is the book a great source, but the FIRE website offers great information for those looking to be knowledgeable of all arguments on due process rights.

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The ACPA code of ethics maintains that professional student affairs educators must inform students about the conditions under which they may receive services (ACPA, n.d.). If students share their sex discrimination cases with me, I should make it known that I am a mandatory reporter, but I should also inform them of the due process procedures on campus and how they will work.

Citation: American College Personnel Association. (n.d.). Statement of Ethical Principles & Standards. ACPA. https://myacpa.org/competencies/

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Slide #10 University Operating Handbook - Administrative Law

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Slide #10 University Operating Handbook - Administrative Law

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University of Texas at Austin. (2022). Handbook of operating procedures. https://secure4.compliancebridge.com/utexas/public/getdoc.php?file=3-3031

The policies in the University of Texas at Austin’s handbook of operating procedures have very specific statements, responsibilities, and guidelines for intervening in sex discrimination cases.

Notably, the procedures are outlined very similarly to the Code of Federal Regulations but even go into more detail, such as live hearings, alternative resolutions, and appeals as part of students' due process rights.

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Plummer v. University of Houston - 5th circuit

Citation: Plummer vs. University of Houston, Volume 860 F.3d 767, (2017)

Link: https://law.justia.com/cases/federal/appellate-courts/ca5/15-20350/15-20350-2017-06-23.html

Brief Summary: Two students at the University of Houston were accused of sexual misconduct and were subjected to disciplinary processes according to policy. The students appealed to the 5th circuit and argued that the university did not allow students to have due process rights. The Fifth Circuit contended that universities and educational institutions do not have to follow all courtroom procedures, thus finding that the students received fair due process rights. This case is important because it establishes a standard for how Title IX due process procedures are dealt with on public university campuses.

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Slide #8 Source of Law: Federal Administrative Law

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Slide #8 Source of Law: Federal Administrative Law

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Citation: Grievance procedures for the prompt and equitable resolution of complaints of sex discrimination, 34 C.F.R. § 106.45

Link:

https://www.ecfr.gov/current/title-34/subtitle-B/chapter-I/part-106/subpart-D/section-106.45

Brief Summary: Section 106.45 of the Code of Federal Regulations outlines procedures for ensuring due process in student conduct cases. Within these regulations, students must be treated equitably and assumed innocent until proven guilty. There must be a reasonable timeframe for the investigation and decisions regarding the case. Furthermore, there are measures to take regarding complaints, notice of allegations, the privacy of students, evaluations and investigation of evidence, and appeals. All of these specifically have guidelines that a Title IX office or coordinator would follow at an educational institution.

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Citation: U.S. Congress. (1972). Education amendments of 1972, Title IX: Prohibition of sex discrimination. 20 U.S.C. § 1681. https://uscode.house.gov/view.xhtml?req=(title:20%20section:1681%20edition:prelim)%20OR%20(granuleid:USC-prelim-title20-section1681)&f=treesort&edition=prelim&num=0&jumpTo=true

Brief Summary: Title IX under the Education Amendments of 1972 outlines that individuals should not be discriminated against based on their sex or ”denied benefits” if it is an educational institution that receives federal government funding. Although it does specifically say the words “due process,” students’ benefits would imply a process to defend themselves against allegations that fall under Title IX, which includes sexual harassment and discrimination cases. Since this is a government institution, it would also fall under state authority, implying that they must follow the Fourteenth Amendment as well.

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Slide #6 Source of Law: Constitutional 

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Slide #6 Source of Law: Constitutional 

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Citation: U.S. Const. amend. XIV.

Link: https://constitution.congress.gov/browse/essay/amdt14-S1-3/ALDE_00013743/

Brief Summary: The Fourteenth Amendment contends that no state person shall be revoked of “life, liberty, or property” without due process of law. The “state” applies to any entity that must follow state authority, which would mean public universities and schools or local governments that must adhere to the constitution. In terms of colleges, students have a stake in their education, which is part of the liberties people are granted. Therefore, due process ensures that students can defend themselves with a fair process before disciplinary action is taken against them.

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This article presents the two political sides of Title IX rules and how they affect due process. Both in the Trump 2016-2020 presidency and now in the Biden administration, there have been new Title IX rules.

Some people believe that the Trump administration's rules of more prompt response to allegations of sex discrimination upheld due process rights more firmly or that they were too harsh and threatened victims not to come forward.

However, under the Biden administration, some believe that due process rights have been weakened because of the new proposed changes mentioned in the last padlet slide. On the other hand, some also argue that Biden’s policies ensure that more people will come forward as victims of sex discrimination cases and that due process will still be able to be followed with more of a balance.

Overall, this article presents all sides of the argument and allows the reader to decide based on your own opinion.

Link: https://www.insidehighered.com/news/government/2024/04/19/biden-administration-finalizes-title-ix-overhaul

Citation: Knott, K. (2024, April 19). New Title IX Rules Are Out. Here’s What You Need to Know. Inside Higher Ed. https://www.insidehighered.com/news/government/2024/04/19/biden-administration-finalizes-title-ix-overhaul

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This article presents issues with the new rules the Department of Education has adopted for universities to follow, should they choose to.

These advisements presented are:

Allowing a single-investigator model: This means that the Title IX coordinator can serve as the case's administrator and investigator.

Withdrawing cross-examination, expert witnesses, and live hearings.

Recommending “preponderance of evidence,” meaning that if the evidence is more than 50% clear, they can favor the side with more relative evidence.

Although these are helpful on the administrative side, the article points out that these rules undermine the validity of due process and the fairness of a trial. The article also points out that adopting these standards puts universities at risk of compliance, legal issues, and conflicts with the standards they are meant to uphold.

Link: https://www.insidehighered.com/opinion/views/2024/05/08/title-ix-regs-beware-weakening-due-process-opinion

Citation: Funk, M. (2024). With title IX regs, beware weakening due process (opinion). Inside Higher Ed | Higher Education News, Events and Jobs. https://www.insidehighered.com/opinion/views/2024/05/08/title-ix-regs-beware-weakening-due-process-opinion

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This resource explains why the American Association of University Professors approved and adopted due process as a means to protect professors and tenure. The report points out that, at times, faculty are punished without merit or evidence of the claim to protect the university's reputation and with the intention of resolving the problem quickly. However, due process ensures that faculty, institutions, victims, and academics are protected through fairness and procedures.

Link: https://www.aaup.org/report/due-process-sexual-harassment-complaints

Citation: American Association of University Professors. (1994). Due process in sexual-harassment complaints. AAUP. https://www.aaup.org/report/due-process-sexual-harassment-complaints

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This topic is important to the field of education because the due process procedures ensure fairness and justice to victims and alleged defendants of sex discrimination. Due process is the procedures and processes that a Title IX coordinator would follow for sexual discrimination cases to ensure that students, both the victim and the defendant, are dealt with fairly and reasonably when finding the verdict of the claims.  Additionally, this process allows universities to follow legal compliance with state and federal laws. By having due process procedures, students and university employees can trust that universities will protect them against discriminatory acts. Ultimately, by addressing these concerns of sex discrimination concerns appropriately, institutions are protecting the educational environment that is supposed to protect students and promote education success, establish equitably, and maintain a safe environment for all.

Here is an example of due process at UT Austin should someone file a sex discrimination complaint: (University of Texas at Austin, 2022)

1. File a complaint

2. Acknowledgment of complaint from Dean of Students within 5 days

3. Evaluation of Complaint

4. Notify Defendant with Written Notice of Formal Complaint

5. Investigate by gathering evidence in the form of interviews, responding statements, and witnesses (not limited to)

6. Live Hearing

1. Cross-examination allowed

7. Determination of ruling from a hearing officer

2. If found guilty, students, staff, and faculty have each are reported to different departments.

8. Option to appeal

Emerging Issue: In 2024, the Federal government released new regulations, which resulted in more protection for students and employees at institutions with “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity” (34 C.F.R. § 106.10). However, in Texas, Senate Bill 17 restricts institutions that receive state funding to give special assistance and accommodations to students based on specific individuals based on race, gender, sexual orientation, and ethnicity (Tex. Educ. Code § 51.3525). What this poses for institutions is unclear boundaries between the federal and state governments on how to follow due process procedures. Title IX coordinators may fear the risk of non-compliance or legal violations should they not have the best guidance.

References:

Grievance procedures for the prompt and equitable resolution of complaints of sex discrimination, 34 C.F.R.§ 106.10

Responsibility of governing board regarding diversity, equity, and inclusion initiatives, Tex. Educ. Code § 51.3525

University of Texas at Austin. (2022). Handbook of operating procedures. https://secure4.compliancebridge.com/utexas/public/getdoc.php?file=3-3031

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I am a student affairs professional at a Texas institution, currently enrolled in the Master's program in Student Development and Leadership in higher education. The topic of “Due Process for Sex Discrimination Cases on College Campuses” is for any Board of Regents, faculty and staff of the university, or students attending a higher education institution, as they are stakeholders in the well-being and success of the university. I chose this topic to be more knowledgeable about Title IX to educate students I may encounter dealing with sex discrimination cases. Additionally, this learning helped me distinguish the differences between the federal and state governments' guidance. Knowing how these two different levels of laws exist and how they affect the Title IX processes is important to educate myself within my role.