Post Election Title IX – The Toothpaste is out of the Tube
As 2016 comes to an end, and institutions look forward to 2017, every institution should also be evaluating its compliance efforts with Title IX and related laws and regulations. All of you in the trenches on campuses across the country are left wondering what post-election Title IX is going to look like for institutions of higher education. I am not going to try and read the tea leaves as to what will happen in this area; however, I can narrow down the realm of possibilities.
•OCR continues with the same amount of emphasis and aggression in enforcing its 2011 Dear Colleague Letter and subsequent guidance through investigations. I predict this to be the most unlikely possibility given the GOP platform released at the convention.
•OCR guidance remains in place, but efforts shift away from enforcement.
•OCR guidance is removed altogether.
•There is new guidance issued that completely negates the current guidance in this area.
A few things to remember in considering these possibilities. First, much of what is contained in the DCL has been codified in VAWA and therefore it is now law not just guidance. That means that it will be more difficult to undo, so to speak, because it would have to be repealed. In addition, whether or not the guidance is enforced, institutions are still legally obligated to comply with VAWA. Second, if Trump becomes a one term president, a democrat is elected in four years, and enforcement shifts back to what we have experienced since 2011, the look back period for OCR during investigations is typically 3 years. It therefore behooves institutions to continue with the “new normal” that has been created in this area. Third, lack of enforcement by OCR will likely lead to more and more disputes being played out in the court system. That means it is even more important to stay abreast of legal trends in this area.
The bottom line is that the toothpaste is out of the tube. All of your efforts in preventing and addressing sexual misconduct, relationship violence and stalking are not all for naught. Institutions have put in the hard work to revamp policies and processes; there is a heightened focus on the safety of students on college campuses as a result of increased media attention; and communities are more educated on the obligations and expectations of institutions in addressing these issues. Whether post-election Title IX includes continued OCR enforcement efforts, or not, will not and should not negate the efforts institutions have made to provide a safe campus for learning, living and working for its students, faculty and staff.
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