Navigating the Title IX Landscape: What Faculty Need to Know


Higher Education has become a tricky environment in which to operate as an employee, especially for faculty. Changing enrollment and funding sources have changed the work environment, including quality of institution leadership and how discipline of faculty, including tenured faculty, is metered out. Such changes become more of an issue in this time of ever-changing social attitudes and sensitivities, which many times can lead to complaints of harassment or discrimination made against faculty members for their comments made in the classroom or elsewhere. Many times, regardless of the validity of complaints and allegations, colleges and universities use such complaints as a basis to terminate a faculty member, including tenured faculty members, due to the tighter financial situation or concerns over public perceptions and their effect on enrollment. Title IX and other related harassment policy complaints against faculty and other employees are arguably the leading path toward tenure termination today and the related law and regulations are on unstable ground.

Title IX and its Far-Reaching Implications

Title IX is a federal civil rights law, passed as part of the Education Amendments of 1972, that prohibits sex discrimination in any educational institution receiving federal funding. The implications of Title IX are far-reaching, extending to admissions, athletics, and other educational programs, as well as covering sexual harassment and sexual violence. Its umbrella of protection spans to all members of the educational community: students, faculty, and staff.

Faculty Rights and Responsibilities under Title IX

Faculty, however, have increasingly been the subject of complaints by students under Title IX. The related investigation process of those complaints can have profound implications, not only for employment status but also for personal and professional reputation, making it imperative for faculty to understand their rights and responsibilities under Title IX.

The first concern is that many colleges and universities allow for “administrative leave” for a faculty member accused of violating Title IX policies. Such actions are routinely taken against faculty due solely to a complaint – effectively presuming the accused guilty. This “administrative leave” is really a paid suspension, which otherwise violates American Association of University Professor (“AAUP”) guidelines (which allow for suspension only when the health or safety of the faculty member or others is at risk). Arguably, such action is at a minimum a breach of contract for a tenured faculty member. Nevertheless, investigations follow the complaint; they are rarely fair to the accused, and can result in serious disciplinary action, including termination of employment if a faculty member is found to have violated a Title IX or related harassment or discrimination policy.

That is why understanding faculty rights is important – especially due process rights for the accused, which are currently at risk of being diluted once again. Let’s discuss the recent history of such rights and the related process.

The Evolution of Title IX: Changes under the Trump Administration

In recent years, Title IX implementation has been in flux. Significant changes under the Trump administration in 2020 clarified the definition of sexual harassment to conduct that is "so severe, pervasive, and objectively offensive" that it effectively denies access to an educational program or activity. The changes also introduced real due process rights for the accused, including live hearings with cross-examinations, requiring a presumption of innocence of the accused, and narrowing the scope of the law to incidents occurring within the school's "education program or activity." Indeed, under these current rules, if any allegation is unrelated to the college or university and its events, or occurs outside of the United States, then by definition it cannot be a Title IX violation.

Anticipated Shifts: The Biden Administration’s Proposed Title IX Rules

However, fast-forward to 2023, and we are on the cusp of another significant shift in the related law and a dilution of tenured faculty rights. The Biden administration recently announced its proposed Title IX rules, signifying a departure from the Trump-era regulations. While the new rules were originally expected this month (June 2023), the release date has been pushed back to October 2023 due to the high volume of public comments received on the proposed regulations.

These anticipated regulations hold key revisions including extending Title IX protections to cover sexual orientation, gender identity, and sex characteristics. They also propose replacing the Trump-era definition of sex-based harassment with a broader standard, diluting due process rights by, among other things, making live hearing and cross-examination requirements optional, and extending institutions' responsibility to off-campus conduct in certain circumstances. Other changes include requiring institutions to provide supportive measures to individuals affected by any type of sex discrimination, expanding the rights of parents and guardians in Title IX processes, and enhancing rights for students and employees who are pregnant or have pregnancy-related conditions. In sum, the proposed changes seek to provide more rights to the accuser and less to the accused.

The Complexities and Potential Challenges

Educational institutions likely won’t be updating their policies and procedures just yet. While these changes are significant, they are not yet finalized, and there is a regulatory process to follow before they become the new norm. Once the proposed rule is officially published, a 60-day public comment period will follow, before the rules are finalized and published. In the meantime, the 2020 regulations remain in effect. And remember, an election will occur in 2024, making this area of law all that more fluid.

Navigating the complexities of Title IX can be daunting, especially with potential changes on the horizon. This uncertainty and the way in which higher education institutions have been using Title IX and related complaints as the basis for tenure termination, have been unsettling to many tenured faculty – the employment relationship is on unstable ground right now.

But know that we are following these possible changes and have experience with AAUP principles, related law and regulations, and tenure termination issues. We will continue to provide updates as they become available and as always, we are here to assist with any specific Title IX issues you may have as we end the current school year and prepare for the 2023-2024 academic year. Remember, knowledge is power, and staying informed is the best way to ensure your rights are protected.

If you are facing similar concerns or if you have questions about Title IX or another Higher Education Employment dispute, please feel free to contact us here. We have many years of experience handling such matters and will be able to assist you in resolving the dispute.

To learn more about these topics, you may want to review our information provided on these pages: Higher Education, Title IX, Employment Law, Faculty/Student Issues, Discrimination and Sexual Harassment.

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