Commentary

‘Interim’ Guidance on Title IX Creates Confusion, Not Clarity

September 24, 2017

The U.S. Department of Education announced on Friday that it was rescinding substantial guidance on Title IX issued during the Obama administration.

When your car's navigation system runs you in circles, you ignore it. Guidance loses the quality of being guiding when it is bewildering.

A widely debated 2011 "Dear Colleague" letter has now been "archived," along with other substantial guidance from 2014. In its place, the department has offered "interim" and "substantial" guidance in the form of a seven-page "Q&A on Campus Sexual Misconduct." The department also said it would open a notice-and-comment period to engage in formal rule-making. So it has now taken steps to revise Title IX enforcement — with the stated intention of more changes to come.

It remains to be seen if a strategic retreat from previous guidance will be any less of a burden on higher-education institutions, or if procedural fairness in Title IX enforcement on campus improves or becomes an operational quagmire.

Whatever occurs while we wait for final rules, the department should brace for a barrage of questions — first and foremost: What should we do now? The role of "guidance" itself will most likely create confusion until final rules are in place.

First, Betsy DeVos, the education secretary, has stated that "rule by letter" is dead, yet there are some confusing signals in last week’s guidance. It is presented as both interim and substantial, suggesting that there might be more guidance to come. So it appears "Dear Colleague" letters may be here to stay in some form. If this new guidance is truly "interim," should colleges simply wait for final regulations that may take many months to finalize, or for further guidance of some sort?

And how do we explain the fairness of outcomes to "parties" who may be expelled under rules following, or not following, "interim" guidance? Many features of the interim guidance are permissive: For instance, we can continue to use "preponderance of the evidence," but should we if the intention of the department is to require us to change that standard? In this way, the department has offered colleges choices that will cause operational headaches.

Second, the department — with not a hint of irony in a document stressing fairness — has indicated that it (1) will not rely on the rescinded guidance in its enforcement efforts, but (2) will not revisit resolution agreements currently in place. This is either unfair or incoherent. There is no compelling reason to even articulate the former if guidance is only guidance and not a rule. But if guidance is like rules, then the department has contradicted itself or worse, as it might violate the law if it had used guidance in that way and refuses to correct the error.

Third, some guidance has been rescinded, but does that mean that we are being guided not to use it? There is a big difference between the Department of Education offering its own navigation program and its forbidding us from using an older version. Last week’s guidance creates a conundrum by offering choices — on appeals, on whether to have single investigators, on standard of proof, etc. If institutions make a certain set of choices, they will end up doing much of what was guided in the rescinded documents. And, what if state laws have incorporated much of the rescinded guidance?

Fourth, for all the fanfare, at this point very little has changed. A great deal of the rescinded 2011 and 2014 guidance, was based on earlier, nonrescinded guidance (especially, but not exclusively, from 2001). And Obama-era guidance from 2015 has not been rescinded; some of it relies on previous guidance, including aspects of the rescinded guidance. Crucially, most major aspects of previous Title IX guidance — like the role of the Title IX coordinator — remain intact.

In the coming weeks, colleges will spend a gazillion dollars hiring law firms to offer opinion letters on what just happened, tracing line by line through lengthy guidance documents. The most likely conclusions: Not much has changed except the tone, focus, and intentions of the regulators, and having choices while in limbo can be legally risky if institutions end up making the "wrong" choices.

So what will colleges do? My bet: Soldier on, doing what they have been doing, and wait. When your car’s navigation system runs you in circles, you ignore it. Guidance loses the quality of being guiding when it is bewildering. And administrators are not so easily frightened as they were back in 2011, so the impact of implicit threats has diminished.

Messages can be as important as rules or guidance. Back in April 2011, colleges received the unmistakable message that they had been bad. We were scolded — and essentially threatened. There is a familiar feeling in the new interim guidance; the Department of Education intends to regulate procedural fairness because we have failed yet again. The department has new leadership, but we are still hearing the same basic message — disappointment, mistrust, the big stick is looming.

The Department of Education does not trust the institutions it regulates. When institutions make mistakes they deserve reprobation; but castigation should flow from a fundamentally fair process and be meted out situationally, not categorically. Higher education as a field deserves fundamental fairness in the construction of regulatory narratives.

Consider this one line from the interim guidance: "Schools should ensure that institutional interests do not interfere with the impartiality of the investigation." I think I know what this means: Don’t put institutional reputation ahead of fairness in an individual matter. But regulators should be very careful when saying such things. Institutions are not mere bystanders to their own educational processes. They have a stake in whom to teach; that is not interference, it is education.

The time for higher education to assert its rights to be treated in a fundamentally fair way draws nearer with each new guidance document. Lawyers may benefit most from what has happened and what may come;: The interim guidance may stimulate litigation against institutions, and ultimately, final regulations will be hard legal rules. One way or another, Title IX is off to court.

I suspect the Supreme Court will eventually unpack the multitude of legal issues surrounding Title IX and may well remind us that due process is contextual and is what is due. Lawyers may have dominated the dialogue and cornered the fairness market, but in the marketplace of ideas, there are visions of fundamental fairness not crafted by lawyers. In the meantime, most institutions will be guided primarily by the instincts of good educators — which, surprisingly enough, might inform the rule of law in the not-so-distant future.

Peter F. Lake is a law professor and director of the Center for Higher Education Law and Policy at Stetson University College of Law.