Trusteeship Podcast Episode 47: Title IX Regulations – What Boards Need to Know

Introduction:
Welcome to the Trusteeship Podcast from AGB, the Association of Governing Boards of Universities and Colleges. We cover everything higher education leaders need to know about the challenges facing our nation’s colleges and universities. More important, we provide the facts and insight you need to solve those challenges and to be the storytellers and advocates higher education needs.

Morgan Alexander:
On April 29th, the US Department of Education released the final rule on Title IX of the Education Amendments of 1972. As you may know, Title IX covers sex discrimination at colleges and universities, and its implementation has received tremendous attention in the past 20 years. Many higher education leaders are feeling whiplash as new presidential administrations overturn the current regulations and implement their own, which has led to uncertainty, confusion for students, faculty, staff, presidents, and boards. These latest regulations are expected to have far-reaching implications for colleges and universities due their subject matter level of complexity and financial requirements. The rule will take effect on August 1st, 2024, which is around the corner.

We have two experts here who will talk together about what the rule means for college, university boards and senior leadership. I’ll introduce them and then they’ll get started. Sally Mason is an AGB consultant and the former president of the University of Iowa. In addition to her work with AGB, she also serves as a board member at two universities. Peter Lake is also an AGB consultant and a professor of law and director of the Center for Excellence in Higher Education Law and Policy at Stetson University. He’s one of the foremost experts on higher education compliance law, including on Title IX. Thank you both for joining us. Take it away, Sally.

Sally Mason:
Thank you Morgan. And Peter, welcome. It’s great to have you here today for this conversation, and it’s an important one. I would really love it if you could begin walking us through what this means for us as board members. What do we need to be thinking about? How do we need to be thinking about this and what do the new rules and regs mean for board activities going forward?

Peter Lake:
Sally, it’s great to be here. And boy, there’s sure a lot to share. The first thing on my mind is that the Biden administration wants to gin up more reporting on campus. The new rules and regulations put a lot of emphasis on a broader reporting standard and more mandatory reporters and even re-tasking Title IX coordinators to look for barriers to reporting. And what that translates into is the distinct likelihood that we’re going to see an increase in reporting over the next year on some campuses. And I want to make sure people realize that an increase in reporting can be a false negative. In other words, it doesn’t mean that the campus is going down the drain with Title IX problems. It just means that the rules are encouraging, some cases even forcing people to share more information than they have in the past. So I think it’s really critical for senior leadership to be aware of the fact that there probably will be increased reporting, but it doesn’t necessarily mean that Title IX issues have gotten dramatically worse. It’s just we’re getting more information because of the change in rules.

Sally Mason:
That’s good to know. And this has happened before. I know when I was president, we went through a similar revamping of the Title IX rules and regs. We did see something exactly like that. And as president, as I was reporting out the kinds of things that were being reported to us, our board got alarmed at that point in time, not surprisingly because it seemed like all of a sudden we were seeing a lot more of this type of activity and certainly not wanted activity occurring on our campuses. And in fact, it was because we were encouraging reporting. And we were making it much more possible for people to report. So talk a little bit more about that and in particular about mandatory reporters on campus.

Peter Lake:
Yeah, the new regulations redefine who the mandatory reporters are. It basically includes just about everybody that works on campus. I think we’re going to find that the training requirements to get people to understand these new rules might be fairly onerous, especially for campuses that haven’t had a broad swath of mandatory reporters in the past.

And something else I’ll throw in too, Sally, is that I think the new rules will encourage people to report even when they would rather not. In other words, we may get a lot of reluctant reporters who feel it in order to protect their jobs, have to share things. And I think they’re going to grumble about it. I don’t think that everybody’s going to want to feel that they have to run to Title IX for things that they don’t feel are ultimately sexual harassment issues and may well not be, but I don’t think they’re going to want to take the chance that they’re making a mistake. And then the Title IX coordinator I think is going to get inundated with a lot more information, so it may require staffing assistance to be able to manage all of it.

Sally Mason:
What about board members? Are they considered mandatory reporters at this point in time? Because as a president, I know that from time to time complaints, often anonymous, would be sent to board members. The presumption always was that they would follow up. Well, what’s your opinion here?

Peter Lake:
I think just basic good fiduciary duties would say that material probably needs to be shared. But here’s the tricky thing, is that if you’re a more hands-on trustee and getting a little more operational, then you could potentially start walking into some of the space. The Biden administration identifies for mandatory reporters. That’s more caution, I think, which we consistently give to trustees and board members to be careful about operational interactions because it could trigger a level of responsibility under Title IX that you might not otherwise have.

Sally Mason:
Yeah, yeah. Do you think board members ought to go undergo some training as well, or at least see what the training that’s occurring on campus is like?

Peter Lake:
I believe that board members should have a solid sense of what’s happening. And I’ll tell you why, because there’s guidance from 2015 that’s been rescinded by the Department of Education, but it put a lot of emphasis on the fact that the Title IX coordinator should have direct access to senior management. Not the board, but president or chancellor level. And because the board manages the president or chancellor, et cetera, I think that supervising indirectly to know what’s going on is very helpful.

Sally Mason:
I think that’s really important. I think it’s great that you as an AGB Consultant can do these kinds of things for boards too. I think that kind of information is something that they all need to be aware of. And I come at it obviously with two different hats on. Having been a president and formerly someone who was a mandatory reporter, with my trustee hat on, I have to ask myself the question, “What are my responsibilities now?” And I think your caution is certainly something that all board members should pay close attention to because yes, we are always encouraging board members not to get too far into those weeds, but at the same time, I always say I had very high need to know things. I don’t necessarily have a high need to do everything.

Peter Lake:
Sally, it kind of transcends into something else I wanted to talk about, which is major.

Sally Mason:
Please.

Peter Lake:
A couple of things I think that board members will see will be fights that will be associated with the new scope of Title IX. I expect reproductive rights issues to become foremost. And particularly for some public institutions, there could be a stand down over federal law versus state law that’s actually already occurring. We’ll probably talk a little bit more about that as we go on.

Bathroom access and athletic participation will be hot-button issues. We’re not expecting athletic regulations to come out until the end of the year, but the debate is already on because people can see where the train is heading. Expect a lot of controversy over due process. The new regulations permit the end of a live hearing, they change cross-examination rules potentially and even introduce the controversial idea of a potential single investigator as a single decision maker. The due process wars will continue and I think these will hit all the way up to a board-level pronoun usage.

And then generally speaking, I think LGBTQIA+ rights are on the table. All you have to do is read a recent affidavit that was filed by professors in a case down in Texas, and you’ll get a feel for exactly what kind of controversies are out there regarding protection for the LGBTQIA+ community. So I think all of this stuff will eventually land somewhere on board leadership desks. Some people are going to be asking for boards or senior leaders to take positions on these, whether they want to or not, but expect the pressure to respond to that particular tranche of issues because of the new regulations.

Sally Mason:
What are the potential consequences for failure to comply with the new Title IX regulations or any of the Title IX regulations for that matter?

Peter Lake:
Sally, the complexity of this is almost mind-boggling, and what I’ve been preaching is situational awareness. You have to know your sector, public-private, private sectarian. You have to know your state. Are you a red state? Are you a blue dot in a red state? Is it purple? And what we’re going to see is I think significant variations on day-to-day implications depending on where you’re situated. Already we’ve seen a number of states, almost half of the American states have now lined up to sue the Biden administration to stop implementation of the regulations, and that that matters.

In some states, the senior leadership, for example, in Florida, has told people to stand down, not even to do anything to prepare for August 1st at all. And so at public institutions in Florida, the situation is rather challenging. It could lead to a federal state’s showdown that would be reminiscent of the 1960’s civil rights moments when certain states were refusing to comply with federal mandates under Browning board. It could be that dire.

Now, let’s say you’re a religious private. There’s still an opportunity to take advantage of exemptions in Title IX. I think some folks will be considering what their posture looks like in that situation. Some of this stuff hits the private schools, even in states that have hard public mandates, I think being aware of where you are. Hopefully we’ll get a chance to talk about something. I hate to have to share reports, but I think a little bit of a court watch is in order. This summer, there’s some big stuff that may happen in the next couple of months, and I think board members should know that they would want to know in real time what’s happening on a couple of core issues out there.

Sally Mason:
Give us a snapshot of that. I’m obviously curious as to what your perspectives and opinions might be on that.

Peter Lake:
There’s one thing I am keeping an eye on with these new regulations in particular. They beefed up the retaliation provisions. And the Department of Education has basically baited the hook, and without explicitly saying so has put it on the table that the institution itself could be the basis of agreements for retaliation. And watching operationally with Title IX coordinators, there’s a lot of negative energy directed at Title IX operatives. It’s a tough job. People often change the job very quickly. Two, three, four years, they’re in and out. And it’s not inconceivable that retaliation claims will start to gin up in a greater number after this. And those, as lawyers know, the retaliation claims are sometimes the more difficult ones for institutions to manage. And it can be bad press and bad PR.

Another good reason why—a little basic knowledge of Title IX operational understanding and making sure that senior leadership presidents and chancellors are connected to their Title IX coordinators is good advice. That’s no question that’s coming out of these new regs.

Sally Mason:
When I was president, I had a Title IX coordinator, she reported directly to me. Over time, as offices, equity offices and EEO offices and DEI offices arose, oftentimes the Title IX coordinators were folded into those offices. As many of those are being dismantled now, what’s happening with Title IX coordinators? Has it become much harder to figure out who they are and where they belong in the institution? What’s your thinking there?

Peter Lake:
That’s a conversation I have almost weekly, Sally.

Sally Mason:
Okay.

Peter Lake:
And it’s again, very situational. So in some states, entire groups of DEI operatives, including Title IX coordinator types, have been essentially eliminated or restructured out of jobs. And some cases there’s been some outsourcing. I think increasingly people are wondering what is left of Title IX if there’s anti-DEI work as well going out there because it is so closely associated with that work. And I’d say that’s one of the major org chart challenges of the day. And I think it’s actually a worthy conversation with a president or chancellor and a board is, what’s the instinct on restructuring this? If it’s not done well, what ends up happening is that people who developed an expectation of some kind of a service don’t get it. And you know what they do, Sally. If they can’t find somebody to complain to, they start writing presidents and board members.

Sally Mason:
Absolutely.

Peter Lake:
They go right to the top these days. It’s a consumer expectation issue. This is one of the things that’s so challenging with this, is that every set of regulation sets a new tone and expectation levels for consumers. And the changed things, they’re hypersensitive to small changes and not always pleased with it. That was something I noticed when I went through the huge document the Department of Ed dropped is, everybody, and I mean everyone was complaining about Title IX regulations. The consumers are not happy. They’re unhappy for different reasons, but to me, that sends a clear signal that the consumers are asking, “Is this working? How does it work for me?” And if they don’t have a clear sense of how their institution’s going to respond, they’re going to push those issues right to the top of the food chain.

Sally Mason:
Institutions, big institutions especially have compliance offices in their research office. They have compliance offices that deal with disabilities and student affairs. And then we had timeline coordinators, and that was a whole different set of compliance. Talk about how any or all of these intersect with each other.

Peter Lake:
The truth is, in practice, a lot of DEI work or EO work is so intersectional it’s almost indistinguishable. So for example, the modern Title IX coordinator is now encouraged to work with disability services directly. We’re required to in K-12. We’re encouraged in higher ed. But you really can’t do the job now as a Title IX coordinator if you’re not conversational and really fluent. For example, Title VI, disability law, age discrimination, I can tick off all the metrics. Although the Department of Ed has never really said it, and I wish they had the courage to just admit what they’re doing, is basically your Title IX coordinator is the embedded federal compliance officer on campus for general EO purposes and a first point of contact.

Going back to what we talked about earlier, Sally, I find sometimes that people have a race issue or a national origin issue. They may try to translate it into a Title IX issue. So with this new reporting world that we’re in, some of it’s going to channel into new Title IX complaints, and that requires the coordinator and others to be very connected to other EO operatives on campus and have a good solid sense of how those particular metrics work and how to protect the institution, its staff, students, and faculty.

Sally Mason:
Great. Well, things are not getting simpler, that’s for sure. What have we not talked about at this point in time that you think it’s important for boards in particular to know?

Peter Lake:
Well, I think one thing is policy agility. Every time there’s a change in regulations or a court case, you may have to be able to change your policies to come into compliance time. And Sally, you and I know the business well. Compliance time and college time are not on the same clock all the way. Some campuses, to change a word in a policy takes six months to a year of moving through various processes. And I have a tremendous respect for shared governance, et cetera, et cetera. But in compliance time, you do need to be able to move quickly in some cases, sometimes in a matter of months or even weeks to meet objectives. And I think that particularly around Title IX, board members need to know this.

Sally Mason:
I know there’s been some shifts here. There’s a shift from actual notice and deliberate indifference standards. Talk about that. Explain that to us.

Peter Lake:
The net result of what has happened with the change in reporting standard is to encourage, and to some extent, force a greater level of reporting. The old standards basically turned on actual notice, which was heavily driven by people making complaints. But today, the standard has modified somewhat. And it’s not even technically a constructive notice standard. It’s broader than that. The department has used what I would call educational language that I think relates to active listening standards. In other words, they’re expecting our employees to be able to listen even for what hasn’t been specifically articulated, and share that information up the chain of command for further review or potential investigation. We’re not just going to wait for people to come in and file a written complaint. We’re going to be listening. And what I’m telling people at the baseline is when in doubt, talk it out with your Title IX coordinator. And that’s the new standard functionally on campus. So again, expect more reporting, but a lot of that’s going to be fluff and chatter. It won’t be real Title IX issues.

Sally Mason:
Okay. Listening skills are certainly highly variable from person to person. So that adds another degree of complexity to all of this, I think. How about a few more comments about the hostile environment and sexual harassment? Has any of that changed with these new rules and regs?

Peter Lake:
Several things have changed. And again, for technical operative training, there’s a lot more training that’s going to have to be done to investigators and decision-makers to understand how to apply these rules. And so you know what that means, Sally, that’s budget. And that’s where do we get money today with everything being what it is.

But I think one of the major changes is that they are thinking now about hostile environment, not just resolving grievances among two people or three or four, but thinking about what we call impacted individuals. There was a resolution agreement recently from the department that really illustrated this. This teacher did something unforgivable in class, making students strip down to their underwear in class, and fired. And the department said, “Congratulations on firing this person. This is exactly what you needed to do. But what you didn’t do was go around to the students who didn’t make complaints, but were in the class and see what the impact was on their educational experience.” And they insisted that we think more environmentally, not just the people who are standing right in front of us, the roommates or the co-workers who are missing work or having problems because of what they’ve seen or heard. And I think that’s probably the single biggest shift. It’s a bit reminiscent of the Obama era, but the big difference now is that it’s very clearly in a regulatory standard in a way that it had not been until now.

Sally Mason:
Interesting. Interesting. This has been very enlightening. And obviously your expertise, you’re really up to speed on these things. It would be hard for me to imagine institutions being able to get themselves up to speed without help. And maybe you could talk a little bit about that too.

Peter Lake:
Sure. Well, in fact, I can kind of see it. I can feel it actually, is compliance fatigue. People are exhausted by this, and it’s mentally exhausting to try to keep up with the scheme of regulatory twisters. So I think for board members taking a deep breath, realizing the mission of Title IX really hasn’t changed. We’re here to combat sex discrimination. It’s important in a leadership level to keep that energy going.

When I was the Title IX coordinator, Sally, my team when I first met them, was defeated. And I said, “Look, folks, we’re here with a mission and we can find success in this mission even if there are challenges.” I think it’s really important to stay the course and have a study. And with this, the technically correct legal answers aren’t necessarily the ones that work the best in the court of public opinion or business. When you talk about law, it’s important to talk to your lawyers and take hard legal advice, and of course, direction from central command if you’re in a system. But it’s good to have conversations at a leadership level. Because unless we can inspire people to a mission, they’re not going to really do it.

For example, I heard the hesitancy on active listening. That is a major educational undertaking. And you’re absolutely right, not everyone’s going to master it. They may not even become very competent in it, but how can we work to inspire people to be that level of interactive and be a little better at it? That’s board leadership at its core, is setting a tone in that way. So we’ll get through this. This too shall pass. But I’m expecting a very dynamic and frankly fatiguing period over the next six to eight months as major political forces fight over college campuses and have made Title IX a battleground.

Sally Mason:
Yeah, it appears that boards need some instruction in this, and certainly a lot of knowledge about this. But just as importantly, presidents, and leadership teams also need this kind of instruction. It’s not enough for the president to just have a Title IX coordinator and for that Title IX coordinator to be doing their work. But the entire cabinet really needs to be aware of what this is all about and how important it is to the institution.

Let me come back to a question that I sort of raised at the very beginning because I know that some of our board members are going to be asking themselves. So what are the penalties? There’s lawsuits, obviously, that will be filed against the university if they’re not in compliance with these sorts of things. Oftentimes there are individuals that are initiating the lawsuits. Sometimes it’s a group, sometimes maybe something else. But what would the federal government potentially do if an institution was found to be out of compliance to Title IX in a very real or large sense?

Peter Lake:
Sure. I mean, the department’s been reasonably active opening up investigations against institutions. Now, of course they don’t have the resources to come after every school that’s out of compliance, and they don’t intend to either. I’ve heard from the railroad tracks that they look for institutions that they feel are not really in the spirit of compliance, that they’re not going down the tracks the way they should see fit.

But one way they’ve weaponized federal law against campuses, and I think this is a good crossover point, is the Clery Act, Clery report. And what’s happening with Title IX because it lands in the summer will actually be part of our annual security report due in October. And if the Biden administration persists, I guarantee you they’re going to be reading October 1 reports to see if we came into compliance the way they expected us to. And the Clery system permits fining. We saw this staggering fine that just came against Liberty. But where we used to see fines in the tens of thousands of dollars now, fines at the million dollar range are no longer inconceivable. And this has, I think, been one of their shifts to what I call tactical nuclear weapons.

Theoretically, they can pull federal funding. And Sally, I mean, I think a lot of us are wondering out loud if certain states stand down the Title IX regulations and they uphold in court, will the department actually threaten the withdrawal of Title IV funding from a system? I mean, it’s never really happened, but people like to throw nuclear weapon options around. But it’s the tactical nukes are the ones that I find a little more terrifying because it can be both a brand and a financial issue.

And then of course, you mentioned litigation. And as you know, I practice law as well as talk about it. And I can tell you point-blank that a lot of people use regulatory compliance one way or another as a weapon against an institution in litigation. It may not always be effective, but they attempt to at least use that as a leverage. And it sometimes has the effect of at least the elongating litigation against institutions, which in turn turns into expense and insurance busts. So a lot of things are on the table with this.

I will say that some folks I think have kind of a fatalistic approach to this. They figure, “We’ll just keep cooking along doing what we’re doing and hope for the best.” But given that we’re in the throes of what I’ve been calling edge apocalypse, there’s so many things pressing on universities at this time that I worry that if we’re not taking care of the liver, the heart may go or the lungs or whatever, eyesight. These are all connected to the body. So long answer, but yeah, there’s some things the department can do to get our attention.

Sally Mason:
Well, and certainly our students’ voices have been loud in recent years on many issues, and this is one that they can become very passionate about not surprisingly. Well, Peter, any last words of advice? I love your optimistic outlook on this despite the fact that it seems daunting.

Peter Lake:
Well, challenge is the food that leaders feed on. And that’s I think what truly distinguishes boards in many ways from other operators on campus. It’s our job… I say ours, the board’s job, to set the tone for the positive future ahead. And I see a renaissance on the other side of this. I think that we will get through these challenges and move to a place where things are more sustainable and less controversial. But I think having a good sense of your community and what the expectations are is a huge driver for legal compliance here, what you’ll do in the future.

And then probably the last thought going out the door is that we live in an age where any major political issue can become a college issue. And part of the reason there’s so much ramped-up energy around Title IX is that society as a whole struggles with the issue of sexual violence. And I think board members need to realize that these issues are front-page political issues as much as they’re legal. And therefore, as I said before, what counts in the court of public opinion isn’t necessarily what we argue in court. It takes a certain crossover training to have that instinct.

Sally Mason:
Well, Peter, thank you. Thank you for sharing your wealth of information with us today. I want to encourage boards out there, especially that if you feel the need to know more and want to have a more in-depth conversation, Peter is certainly willing to make himself available as a consultant to do a board retreat or session or whatever might be useful with that. And I want to turn it back to Morgan at this point in time to wrap us up and send us on our way.

Morgan Alexander:
Yeah. Thanks, Sally. I really want to thank you both. It’s a tough conversation to have sometimes, but it’s really important. And given that August 1 is the implementation date, boards don’t have a lot of time to think about this, so they need to be doing it now. So thank you both so much for sharing your time and expertise.

And for our members who want to know more about their responsibilities in Title IX and an overview, AGB has a couple of resources that will include in links that you can find so you can know more and prepare for what comes next. Again, thanks to both Sally and Peter for this conversation. It’s been really enlightening.