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Changing the Game:

Compliance with the New Title IX Regulations

No 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.” Title IX of the Education Amendments of 1972

"The new Title IX regulation is a game-changer. It establishes that schools and colleges must take sexual harassment seriously, while also ensuring a fair process for everyone involved. It marks the end of the false dichotomy of either protecting survivors, while ignoring due process, or protecting the accused, while disregarding sexual misconduct. There is no reason why educators cannot protect all of their students – and under this regulation there will be no excuses for failing to do so.”  Assistant Secretary Kenneth L. Marcus of the Office for Civil Rights, from the press release announcing the new regulations.

One of my favorite terms is “game change,” and I appreciate a good shake up of the status quo, provided the results are positive, effective, and appropriate.

As a college athlete, I played for the legendary Carole Kleinfelder, a lacrosse coach who made decisions and coached in a manner that was truly “game changing.” She has a keen strategic mind and the ability to recognize, and employ effectively, the unique skills and talents of her athletes. A basketball player, she saw the way basketball concepts would benefit our game play and included them in our game strategy. Her approach worked. During my four years on the team, we made it to the NCAA Division I championship finals three times, and May 20, 2020, marked the 30th anniversary of our NCAA DI championship win. We recently got together virtually to celebrate this anniversary with some of the current team members and coach. It was great to see everyone and remember what it was like to be teammates with these formidable women who are smart, driven, collaborative, and fun.

As someone who has worked in higher education as a Title IX professional for almost a decade, I was also intrigued by the experiences of the current players. While the conversation was focused on the events of thirty years ago, I could not help but wonder what impact Title IX has had on these current college student-athletes. At the time we won the championship, Title IX was 18 years old; as of today, Title IX is 48 years old.

Until recently, Title IX was mainly thought of as the “women’s sports law” because one of its earliest and most prominent applications was to ensure equity for women in college athletics. Title IX requires that schools provide students the same genuine and meaningful opportunities to compete on a team and benefit from those opportunities regardless of sex. Those athletic opportunities matter and contribute to the overall educational experience. When I look back, I think not only about whether we won or lost but also about a lot of other things: the pure excitement of being on the field, the thrill of playing at such a high level of competition and skill, the joy and devastation of competition, pride at being part of this community, the importance of learning from mistakes, working with others and being thrilled by their success, the benefits of thinking creatively in any situation, the importance of risk-taking, and that each person brings a unique and necessary skill set that makes the whole stronger.

These experiences have shaped me as a person and a professional well past college, and I recognize that I was fortunate to have been part of an athletic program that enabled these life-shaping moments. 

Nonetheless, when I think about how Title IX has impacted these current student-athletes, I am not only thinking about how Title IX has impacted their athletic experience. Title IX is about more than athletics. Sports are not even mentioned in the law, nor are the words "women" or "female." Title IX requires schools to make sure that students and employees, of either sex, are not being denied any of the schools’ opportunities, benefits, and programs, on the basis of their sex. This includes academics, extracurriculars, employment, among other things. Pretty reasonable expectations, right?

The prohibition against sex discrimination includes making sure that schools are appropriately responding to reports of sexual harassment because harassment is discrimination based on sex (either sex) that can effectively deny someone the ability to participate in the benefits, opportunities, and programs of an institution. Sexual assault and relationship violence are forms of sexual harassment, so schools must respond to allegations of these forms of misconduct. Again, all reasonable expectations, right?

For those of us working in Title IX compliance, we wish it were that easy. News organizations have recently been covering Title IX because new Title IX regulations that address schools’ response to sexual harassment and sexual violence were issued on May 6, 2020. These new regulations are a big deal in the educational compliance world, from K-12 through graduate schools. The regulations are detailed and present financial, staffing, and resource challenges. For example, they require higher education institutions to have a hearing process that is basically a quasi-judicial affair with cross-examination. Cross-examination will be challenging for all parties. Schools are scrambling to find the time, resources, and money during a pandemic and financial issues to become compliant with these new mandates by August 14, 2020. In addition, people are vocalizing profound and passionate views of the regulations that will make the outcome of compliance decisions that more scrutinized and the reactions thereto that more uncertain.

Title IX is about equity yet seems mythologically, and tragically, burdened by visceral and heated divisiveness. The divide is more apparent than ever. The quote from Assistant Secretary for Civil Rights, Kenneth L. Marcus, summarizes the Department of Education’s perspective of the changes and addresses the divisiveness. He states that the new regulations are “game changing” and designed to “end the false dichotomy of either protecting survivors, while ignoring due process, or protecting the accused, while disregarding sexual misconduct.” In reality, the release of these new regulations has put a bright spotlight on the divisiveness and has been met with fury, celebration, skepticism, and lawsuits, all responding to how people feel these new regulations will impact both schools’ response to allegations of sexual misconduct and the parties involved.

To be clear: Title IX is not the problem. As we walked through Title IX’s aim earlier, we noted that the purpose and goals of Title IX are reasonable: no discrimination based on either sex should be permitted. Rather, significant tension and issues have arisen as some schools have not responded appropriately to allegations of misconduct (ignoring reports or treating parties differently) and others have struggled with finding a compliance approach that not only meets the regulatory mandates but also meets the needs of their community. Underlying all of this are the inherent tension and pain of putting deeply personal matters through a detailed process. These cases are emotionally difficult and often high stakes, and a trustworthy and fair process is important. 

 

The divide began to widen starting in 2011 when the Department of Education began to increase the attention it paid to schools’ Title IX compliance. Some schools struggled to understand how to bring compliance to their particular institutions and to understand the parameters of the Office for Civil Rights’ involvement. Schools, the Office for Civil Rights, and parties on each side of the divide had different interpretations of what implementation of the regulations should look like. Interest groups on both sides developed and became highly active. 

 

Anger around Title IX is not new. Some people blame Title IX for the elimination of men’s athletic teams, particularly in the 1980s and 1990s. That blame is misdirected, however. Under the Title IX regulations, schools have options other than cutting teams to ensure equity. In fact, schools can successfully use Title IX to enhance their overall athletic program when they address and remedy inequity. That is right: Title IX strengthens schools. I have seen schools engage in game changing work to provide equitable and meaningful experiences to their athletes and athletic staff. They approached the management of the athletic department with a new focus and strategy, upending traditional views and systems of team additions, development, and support. They have complied with regulations, yes, but the steps they have taken are creative, strategic, and mission driven. This is true game changing.

Good compliance is compliance that strengthens an organization. Good compliance is more than checking the box; it is lived, holistic, and benefits the community. It starts out game changing and becomes the new normal.

Schools that are struggling with Title IX and equity compliance should approach compliance with the mindset of changing the game. The Title IX regulations are the cold outline of what is required. However, the strategy and actions of the school are lived, people-oriented, and meaningful compliance steps that can be used to enhance the experience of students, employees, alumni, and community. For example, compliance with Title IX athletic regulations could mean cutting a team of the sex that is over-represented; however, while that approach allows schools to quickly comply with Title IX, it is only one of three ways to demonstrate compliance. There are more robust and thoughtful solutions that are better for your community, program, or institution. Compliance steps that may help satisfy one of the other prongs of compliance could include: reallocating funds to support adding an under-represented sex's team; developing a policy where athletic expenditure requests first go through a Title IX assessment; engaging in the work required to demonstrate there is no unmet interest by the underrepresented sex; and creating a policy that no new club or other teams are added until the school can demonstrate that there is no unmet interest of the under-represented sex. These steps take work, but they generate helpful information and analysis beyond the focus on sex; they do not lead to team elimination and in the long term can result in overall improved processes, programs, and institutional reputation.

Be like my lacrosse coach. Change the game. There is no single format to bringing compliance to campus; each institution and campus is different. Schools would be wise to take the time to sit with the regulations and develop a strategic approach. What does lived compliance look like on their campus? What is needed to make that happen? Who is needed to make that happen- is there someone who should be involved because they have unique skills and abilities that have not been used before but would be amazing? Who is your Title IX coach, able to develop and lead a cohesive and collaborative team, getting everyone to be innovative, take risks, and find creative solutions? Who is at the table to make strategic decisions and investments? What are the hot spots and what steps need to be in place to simultaneously ameliorate any impact on the parties, ensure fairness, enable compliance, and result in an effective system that meets the needs of the community? Think strategically and include the people with the skills and abilities to make it happen. Include senior leadership; senior leadership needs to understand their role and where they need to provide support and authority.

As I stated earlier, good compliance is compliance that strengthens an organization. Good compliance is more than checking the box; it is lived, holistic, and benefits the community. It starts out game changing and becomes the new normal. Schools that can approach the new regulations in this manner are more likely to arrive at a new normal that not only complies with the regulations but also works for their community. 

Go on. Get out there. Change the game.

elizabeth@ecanninglaw.com

Providence, RI

©2020 by Elizabeth H. Canning