Would the Education Dept.’s New Title IX Rules Really Save Colleges Money?

As the Education Department tells it, colleges and schools could collectively save hundreds of millions of dollars over the next decade under its forthcoming sexual-misconduct regulations.

That’s because the proposed rules — at least, in their draft form — would lower the bar for when colleges must conduct sexual-assault or sexual-harassment investigations under Title IX, the federal gender-equity law.

The logic is simple, according to Betsy DeVos, the education secretary: If campus administrators were conducting fewer investigations, colleges wouldn’t have to spend as much money on them.

The cost analysis was reported on Sunday by The New York Times. The analysis, designed to study the effect of the department’s proposed Title IX rules, was included in a draft of the regulations that the Times reported on last month.

The department estimated that each college conducts an average of 1.18 sexual-harassment investigations a year. That would fall to 0.72 annual investigations under the new rules, a drop of 39 percent. A department spokeswoman told the Times that “the substance of our proposal will not be built on any supposed financial impact and has played no role in Secretary DeVos’s decision making.”

How would the proposed rules curb the number of sexual-misconduct investigations? For one, the regulations would codify a narrower definition of sexual harassment — where one-off comments might no longer trigger formal institutional responses — and would encourage colleges to adjudicate more complaints through mediation.

In addition, colleges would be held accountable only for formal sexual-misconduct complaints filed through official channels; formal complaints would be ones “made to an official who has the authority to institute corrective measures,” not someone like a resident adviser. And colleges would no longer be obligated under Title IX to deal with allegations of off-campus incidents.

A Clear Answer: No

So would the changes reduce the number of investigations? And would colleges actually save any money?

To start, it’s worth considering what colleges spend money on to comply with Title IX and respond to sexual misconduct, said Courtney H. Bullard, a former legal counsel at the University of Tennessee at Chattanooga who now works in private practice.

There are the administrators who staff the Title IX offices. There are the training and education programs for students and employees. And there are the federal reviews and lawsuits that institutions face.

Sure, Bullard said, if there really were fewer campus investigations, well-resourced colleges with large Title IX units might not need as many full-time investigators. But that’s not the reality on most campuses, which are already scrambling to handle sexual-assault prevention and response with limited resources, she said.

For Scott Schneider, a lawyer in Austin, Tex., who used to be associate general counsel at Tulane University, there’s a clear answer to the question of whether colleges would save money: no.

Less-severe misconduct is already handled informally on many campuses, Schneider said, so a new rule encouraging mediation probably wouldn’t prompt a major shift. He also doubted that colleges would simply stop investigating off-campus incidents.

Schneider described the numbers cited by the department as “dubious.” Still, he doesn’t believe the department is using the data as a rationale for the regulations; the cost analysis is “a drill they have to go through,” he said.

If anything, he said, as the courts continue to weigh the claims of accused students, colleges might have to uphold higher due-process standards when handling the cases, like hiring retired judges to run campus hearings. That could add costs, not reduce them, he said.

A ‘Cynical Set of Assumptions’

To Catherine E. Lhamon, the department’s goal appears to be relieving the burden on colleges rather than maximizing student safety. Lhamon led the Education Department’s civil-rights office during the Obama administration and oversaw its more-aggressive enforcement of Title IX on campuses.

But the cost-cutting estimates rely on “a pretty cynical set of assumptions,” Lhamon said. Federal officials appear to be concluding, she said, “that students will stop complaining and stop seeking relief from their schools.”

“If that’s the intent — to discourage students from coming forward — and that intent is in fact realized,” she said, “that would result in some cost savings.” But that approach is “inconsistent” with the mission of the civil-rights office, which should strive to protect student safety in educational settings, she said. She’s also confident that students will continue to report incidents of misconduct.

These days, students and others on campuses have high expectations for their institutions when it comes to responding to sexual-misconduct allegations, said Josh Richards, a lawyer in Philadelphia.

The Title IX regulations may set a new floor for campuses, he said. But colleges’ policies aren’t typically driven by the legal floor. They’re driven, he said, by the demands and expectations of the campus community. Many Title IX officers on campuses have said they are continuing to follow the policies they put in place during the Obama era.

Colleges might save a little money over the long term in one way, though. The Trump administration’s Education Department appears to be scaling back the scope of its sweeping investigations into colleges for potentially violating Title IX, Richards said.

Navigating such reviews can involve teams of expensive lawyers responding to the department’s requests and many hours of staff time compiling documents. That’s been a substantial financial burden for colleges in recent years, Richards said. Perhaps campuses could cut costs if federal investigations were no longer as stringent.

Sarah Brown writes about a range of higher-education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at sarah.brown@chronicle.com.