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UNM Findings Letter: The Growing Micromanagement of Title IX Compliance
Last week on The Torch, my colleagues examined several alarming aspects of the April 22, 2016 released by the U.S. Department of Justice (DOJ) concluding its investigation of the University of New Mexico鈥檚 (UNM鈥檚) handling of sex discrimination complaints by students.
Today, we shift focus from the burden that DOJ鈥檚 findings will likely have on the speech and academic freedom of students and faculty, to the burden they will place on university administrations struggling to keep up with the ever-more-specific requirements of Title IX compliance imposed by federal agencies.
After its exhaustive investigation of UNM鈥檚 Title IX enforcement practices鈥攊ncluding scrutinizing (among many other aspects) its trainings for staff, students, and faculty鈥擠OJ determined that UNM was out of compliance with Title IX 鈥渋n key respects鈥 and that the university 鈥渕ust do more鈥 to address sex discrimination.
鈥淭his letter,鈥 wrote DOJ, 鈥渃onstitutes notice of the Department鈥檚 findings, and of the minimum steps that the University must take to bring policies, practices, and procedures into compliance with federal law, and to remedy past violations.鈥
DOJ heavily criticized the sexual assault prevention trainings UNM provided to students and employees during the period investigated. DOJ, along with 鈥渆xperts in sexual assault prevention and training,鈥 reviewed UNM鈥檚 trainings and found that they were 鈥渓acking in content and depth鈥 and that they 鈥渄id not reflect current research or align with best practices in the field.鈥
DOJ highlighted several specific failings, including the following:
- UNM did not dedicate sufficient personnel to 鈥渟upport the development and dissemination of sexual harassment prevention training.鈥 DOJ noted in particular that 鈥淸t]he need for sexual harassment prevention training at a school the size of UNM is too great for a part-time position.鈥
- UNM鈥檚 trainings were 鈥渄ated in both content and delivery methodology, in ways that limited their effectiveness.鈥 DOJ described and cited to specific sources for 鈥渕ore current methodologies鈥 that it presumably finds more acceptable.
- UNM 鈥渄oes not consistently use evidence-based curricula, evaluation, or pilots for any of its sexual harassment prevention training.鈥
The implementation of up-to-date and effective sexual assault prevention training is undoubtedly invaluable to the safety and well-being of any campus community. But what raises concerns here is the context of DOJ鈥檚 criticism and the use of that context to convert the agency鈥檚 understanding of 鈥渂est practices鈥 into required practices for colleges and universities.
The agency delivers its evaluation as part of an investigation of the policies, procedures, and practices that, in DOJ鈥檚 estimation, render UNM non-compliant with federal law. The findings letter outlines the 鈥渕inimum steps鈥 UNM must take in order to achieve compliance. The clear implication is that the content, dissemination, and evaluation of sexual assault prevention trainings must meet the agency鈥檚 notions of acceptably-current and appropriately-resourced in order to comply with Title IX.
This represents a significant step beyond what is required by federal law and regulations with respect to sexual assault trainings at colleges and universities.
Under the (VAWA) and its implementing regulations (which the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act)), to offer all incoming students and staff 鈥渃ulturally relevant, inclusive [sexual violence] prevention awareness programs,鈥 as well as maintain ongoing prevention and awareness campaigns. While certain information must be included in the trainings (definitions of prohibited conduct and consent as it is defined by the local jurisdiction, information on school policies and procedures, and so forth), the Department of Education (ED), which promulgated the regulations, does not mandate specific content or means of distribution. Indeed, in response to a public comment encouraging ED to require an emphasis on technology in prevention programs through the VAWA implementing regulations, , 鈥The Department cannot require the specific content of an institution鈥檚 prevention training, although we strongly encourage institutions to consider including information on existing technology so as to better inform their audiences.鈥 (Emphasis added.)
The UNM findings letter, on the other hand, appears to require the 鈥渃ontent and depth鈥 of trainings to align with 鈥渂est practices鈥 as understood by unnamed experts and that the university meet an unspecified ratio of training staff to students. This rings of the kind of substantive directive that ED states it could not make in the VAWA regulations. However, the practice of imposing substantive requirements on colleges and universities through investigative findings and interpretive guidance鈥outside of the statutory or regulatory authority to do so鈥攊s by now a fairly familiar practice by ED and DOJ.
In 2011, remember, ED鈥檚 Office for Civil Rights issued a 鈥淒ear Colleague鈥 letter to colleges and universities nationwide, announcing new requirements for campus adjudications of sexual misconduct under Title IX, including the use of 鈥減reponderance of the evidence鈥 as an evidentiary standard. Last week, my colleague Azhar Majeed recalled the 2013 joint letter from ED and DOJ concluding its Title IX investigation of the University of Montana and introducing a broad, vague definition of sexual harassment that the agencies put forward as a 鈥渂lueprint for colleges and universities throughout the country.鈥 With the potential for multi-year investigations and federal funding on the line, colleges and universities have plenty of incentive to heed DOJ and ED directives on Title IX compliance, whether or not they derive from statute or regulation.
Setting aside questions regarding the merits of DOJ鈥檚 critique of UNM鈥檚 trainings or what makes sexual assault prevention training effective and successful, a central problem here is the use of agency enforcement authority to increasingly micromanage content, practice, and even institutional resources in the Title IX context. If the UNM findings letter is any indication, there is little about a college or university鈥檚 handling of sex discrimination on campus that will remain locally controlled in coming years.
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