McLennan Community College last week hosted Peter Lake, a national expert in higher education compliance, to conduct training sessions on a variety of issues — including Title IX.
Over lunch with Tribune-Herald staff writer Phillip Ericksen, Lake described what he calls “Compliance U,” and how university officials across the United States are struggling to keep up with a more regulated environment — one Lake calls “the new normal” in higher education. Lake said his experience at MCC was nothing but positive and educational.
Lake is a law professor and Charles A. Dana chair and director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law in DeLand, Florida. He is a former Title IX coordinator and the author of “The Four Corners of Title IX Regulatory Compliance: A Primer for American Colleges and Universities.”
Which Title IX issues should community colleges be aware of, because of the largely transactional relationship with their students?
You get more stalking, domestic violence, exploitation, the newly added things referred to as Title IX but actually come in through the Clery Act. But you still get a lot of garden variety harassment, not as many of the “he-said, she-said” drunken party cases that you might see in a residential college, but they’re still there. There could be something happening at home or in the neighborhood, or a person sitting in the parking lot waiting for me.
You also get something that trails towards workplace harassment issues because a lot of the training in externship or internship. Let’s say you go to the job site, and the internship supervisor is not behaving appropriately. That becomes a Title IX issue. I see some of that in four-year residentials, but I see a lot more of it in technical colleges, medical programs and community colleges.
What was the reaction to the watershed 2011 “Dear Colleague Letter” that instructed colleges and universities to investigate and adjudicate sexual violence cases under Title IX?
Fear. Stun. It was written in a language a lot of people didn’t speak — lawyer English. A lot of people sat there and thought, “This is really scary, and I don’t know how to interpret it.” I think the initial instinct was to run to the lawyers and legally trained people and say, “What is this and what do we do with it?”
We tried to warn people in February 2011 at a conference about the coming of the federal compliance crusaders. People were saying, “Why were we doing this?” They couldn’t process it; it didn’t seem real to them. Although Title IX was the most visible movement, the government was moving simultaneously in other things like disability law. All at once, colleges were finding themselves in the grip of federal regulatory mandates at a level of intensity they had never experienced before. Most people were just completely unprepared for it.
It’s also a culture shift because they started asking us to create systems where people would report this to a new employee who had never existed. You know how it is in athletic programs. If there was an issue, you took it to coach. In a residence hall, you took it to a director. In an academic department, you took it to the chair. You didn’t have a central command of that stuff. It’s taken some time for people to get used to the idea. There’s a new person in town, a new system and a new way of operating that’s compliance-oriented.
Based on your experience in Title IX, have you seen university employees turn their nose up at Title IX coordinators, thus reinforcing the “silos” of higher education?
You saw the silo issue really come to the forefront after the 2007 Virginia Tech shooting. We realized people weren’t cross-talking to each other. I think a lot of higher education was deliberately built in silos. I think it’s a willful business strategy that was functional in one era and not anymore. What you run up against is a culture of, “We always did it this way. This is how I was trained.”
Take the Penn State child molestation scandal. In those days, if you weren’t sure what you saw, maybe you don’t say anything at all, or you take it to the coach. Today, you take it to the Title IX coordinator. To get to that place, it’s almost as if we needed national incidents to expose problems with the way culture had operated in the past — that people just instinctively operated that way. These days, I don’t see a lot of people who say, “Stay out of my world.” I think those people wouldn’t be making the jump into the compliance world. If you’re not willing to be transparent and collaborative now, your job future is very short.
How do you characterize the shift in college football, where coaches are now prioritizing education and prevention regarding sexual and physical assault? It wasn’t always this way.
I think what you found was a lot of instinctive behavior that was very common in another era coming in conflict with the era of regulation, compliance and transparency. Football coaches used to be gods. You didn’t take anything outside the program. You’d lose your job. I can’t imagine anyone going above Joe Paterno’s head or Bear Bryant’s. How you ran a successful football program was with a certain level of independence from things. Now, a lot of coaches are running to their boards and presidents saying, “I need Title IX. If I’m going to get my people on the field, and we’re going to win games, I’ve got to have a Title IX system.”
A pivotal point of the federal guidance stated a university investigation must find a “preponderance of evidence” to find someone accused of a Title IX violation responsible. Critics have argued the standard should be raised to “clear and convincing,” or “beyond a reasonable doubt,” which is used in criminal courtrooms.
What underlies it is something almost ironic — a lot of schools were using preponderance of evidence, so when the change came there was no change at all. It still was for some, but not for others. You really have civilians running these college courts. When you say to them, “preponderance,” or “clear and convincing,” lawyers are confident that the lawyer-meaning will be conveyed. I don’t know if educators process legal standards the way lawyers think educators process legal standards. I’m not one to criticize the Office for Civil Rights. But I think one thing in retrospect: that if they had included more educators in the initial dialogue in the creation of the guidance, they would’ve anticipated some of the operational issues I encountered as a Title IX coordinator. I can hand an investigative matter to an investigator for the preponderance of evidence standard, and what I get back is not what a sitting judge would understand that means. I have to train to the legal standard. And I’m not sure it fits that well in an educational context.
Honestly, I think a lot of panels using preponderance of evidence are actually operating something that’s closer to clear and convincing, or even beyond a reasonable doubt. When you see what they actually do in their investigative reports, you can see them hesitating on things more consistent with a stricter standard. With the lack of experience and training, they’re not able to see that. I think this makes for good political discussion, but operationally, I don’t think it would change outcomes all that much. It may give people a sense of fairness, which is always important.
What is the dynamic between administrators and lawyers who play such key roles in compliance?
The professional lawyers can run them in circles. Campuses are moving towards more professionalized systems run by legally trained people. Administrators may say, “Is that a challenge to have such a highly legalistic system of managing a campus by lawyers who may or may not know our culture? Will we get the educational outcomes we want?” I don’t know. We’re still in a fairly early debate stage in this.
I’ve read that colleges and universities are expanding their Title IX staffs out of love for their students and the elimination of harm, rather than simply for compliance. If these regulations are rolled back from Washington, D.C., would campuses alter such policies?
What I’m noticing is a lot of schools have made Title IX their own thing. They feel the consumers now have come to expect this, and it’s part of their mission and values. Brigham Young University just went through this. They said, “This is who we are, so we’ll keep doing this.”
Even in Texas, there’s a lot of discussion about state laws needing to change. If the federal government pulls back, a lot of the states will step in the middle. A few people out there think if the federal pedal is taken off the gas, they can dial it back a little bit. But I think the received wisdom is to do that at your own peril. The potential for something explosive to occur that could be damaging to your brand and your students is so great, that to dial it back to 2010 isn’t really going to happen.
We’re in a pitchy moment with a federal government like this. In four or eight years, there will be another administration. I jokingly say, “What would a President Pence say?” Because you just don’t know. Anything seems like it could happen right now. These poor folks in the trenches are thinking, “I’m told to go over here, go over there. What am I supposed to do? How do I draw a steady line when the regression analysis is the dots are all over the place?” It’s bewildering for people to think to follow it. That’s where we come in, to help people find their center in a world where the center is increasingly hard to find.
There are hundreds of federal Title IX investigations across the nation being run by an admittedly understaffed Office for Civil Rights. How can the backlog be corrected? I’ve heard possibly of campuses doing self-assessments and submitting those to the federal government.
The challenge right now is, because of all the litigation, a lot of institutions are very timid to self-assess, for fear they’re handing plaintiff lawyers grounds to sue them. One thing I’ve been pushing under Clery and Title IX is that we need some sort of good-faith standard — some level of protection — if you’re going to engage in a self-evaluative effort. Evidence usually protects you. If there’s been an incident and you do constructive remediation, that can’t be used against you. One of the barriers here is the law itself. We don’t easily facilitate, “I’m sorry.” We disincentivize institutions from doing self-assessment. I think the combination of a model of self-assessment with some oversight could actually be very effective.
When OCR did this through guidance, they didn’t create the metrics that actually encourage businesses to self-assess and protect them when they do it. I think we have a lot of legal work to do. I think the rules are pushing self-audit versus narrative in litigation, which is probably one of the worst ways to get constructive change in a campus.
You mentioned at MCC that Title IX issues could be decided in the courts. Could there be a Supreme Court decision regarding the federal guidance and related matters?
I think there are a variety of Title IX-related matters almost inevitable to hit the Supreme Court sooner or later. On the question of how quickly they want to get into it, my guess is they’re probably hesitating to see if Trump gets another appointment to the court. That might tip the balance. I think some of these opinions could be five-to-four, six-to-three. There’s a lot of meta-judicial politics going on. There are due process issues, academic freedom, administrative autonomy, First Amendment, associational freedoms.
There’s even one interpretation of Title IX I’ve speculated on, but most people groan when I say it: if Title IX gives you a right to a process where you can prove someone sexually assaulted you, shouldn’t you have a right to a process that could clear your name? To prove the act was consented to? I don’t know how you could easily turn that claim away under Title IX.
At many schools now, faculty members are required to report potential Title IX violations they may hear from students, even if students confide in the professors. Conversations on this issue have been lively at the American Association of University Professors.
Jennifer Lake, Peter Lake’s wife and publicist: We faced that very issue in a training session on a campus. Every faculty and staff member, from custodian to president, were required to report anything they heard that would be considered a Title IX violation, except for confidential resources, such as the counseling center. An English professor said, “I have journaling in my classes, and people share things with me, and I’ve counseled students for years. I might have suicidal students or those who have been sexually assaulted. You’re infringing on my right as a professor to have these open conversations because they trust me.”
Then, a chemistry professor stood up and said, “This is totally out of my skill set. I have no business, and quite frankly, neither do you, colleague, because you don’t have a counseling degree. You haven’t taken a 40-hour rape crisis training like advocates do, so why do you think we’re giving good advice? I thank God every day we have Title IX to turn to, and I don’t think any of us should operate out of our skill sets.”
That was my light-bulb moment, in a way, to talk about those issues when you have faculty pushback.
I thought one of the more important Pepper Hamilton recommendations to Baylor was the updating of “for cause” language within contracts — specifically including failure to report misconduct. Employees can now be fired for breaking the policy or the law.
If you’re under contract, you can be not renewed for something you’ve done. Unless you specify cause, it’s hard to terminate people. You can’t really play Calvinball with employment contracts. When the government says, your responsible employees mess up, you’ve got to deal with it. That could include the need to show OCR that you have been willing to terminate or suspend people for failing to do their job. That could put large classes of employees in opposition with their administration. We’re finding a lot of people are coming up with more textured solutions. Instead of blanket designations, they’re more deliberate about creating limited reporters here, responsible employees there, in addition to so-called responders, which is an implied reporting class in the guidance.
The existence of matter implies existence of antimatter. Honestly, some people just aren’t good mentors or first responders. Great in the classroom, perfectly suited for the job, but as an EMT? I’d rather walk myself to the hospital. Not because they’re bad people, they’re just not particularly good at it.
When universities are embroiled in such issues, how can they respond from a public-relations standpoint while considering federal privacy laws?
We do play with one hand tied behind our back because there are privacy laws. A lot of the really critical laws are medical and FERPA. Without consent or an emergency, we’re stuck.
I do see narratives, and the lawyers know this. They can file a complaint and say things that we can’t demonstrate are false until we get to court. Unless we’re willing to go to trial or further in the process, that information will never come out. It so often doesn’t. Of course they’re hamstrung by the fact we don’t know what they know. So (plaintiff lawyers) are looking to see what’s there that we’re not telling them. It’s an interesting game. This is where a self-assessment model derails in litigation, because it’s not really designed to be a self-assessment. It’s a cat-and-mouse game.
It used to be that lawyers and president were told, “Don’t say anything, and if you do, keep it short and sweet.” Now it’s clear: to be a leader or a lawyer, you have to actively engage the narrative world. Those skills aren’t taught in law school. A lot of people aren’t very good at it. The firms that have gotten better at it become more well-known. I’ve actually watched the lawyers that do this evolve. They’re getting better at it. The PR firms are the same thing. I think the standard theory on Title IX used to be, “Stay as far away as you possibly can.”