Readers of the blog know that I recently presented at the ATIXA West Coast Conference in San Francisco, California. My presentation was on Title IX and employee rights—an issue I realized when I worked at OCR that many institutions were not thinking about as much as they should. It was a great experience to share my thoughts on the subject with a room full of engaged Title IX and HR administrators from K-12 and higher education institutions. Among other topics, we discussed policy issues, tenure and academic freedom concerns, and unique retaliation issues in cases involving employees. I know not everyone was able to make it out to San Francisco, so I wanted to share some highlights of the presentation here. My colleague Emily Tulloch and I will also present a complimentary 30-minute webinar on this topic on December 10, during which we will address these issues more thoroughly. We hope you will join in on the conversation then! For now, keep reading for some of the key points.
Some of the educational institutions I investigated at OCR used a different policy when dealing with employee-on-student sexual misconduct complaints as opposed to student-on-student sexual misconduct complaints. As we will discuss more on our webinar, your institution needs to be a well-oiled machine to handle distinct policies in this sphere. What if a responding party is both an employee and a student? Students work for their schools, teachers take classes, and the lines between can be blurry. When a collective bargaining agreement comes into play, things can get even stickier. It’s possible to have varied policies, but it definitely takes work. An easier approach is to have one policy for any situation in which the reporting party is a student alleging sexual misconduct, regardless of the status of the responding party. There is much to think about on the why and how of doing so, which we will look forward to addressing on December 10.
Tenure and Academic Freedom Concerns
Teachers and professors have unique protections that can be tricky to navigate when processing Title IX complaints. Tenure for K-12 teachers and professors often makes termination seem unachievable. You also must apply your Title IX rules in a way that allows protections for academic freedom, free speech, and other rights. How do you navigate these minefields?
With respect to tenure, you keep calm and follow the rules. Remember that simply because it is difficult to terminate a tenured employee does not mean that you should throw up your hands and say, “Well, there’s nothing we can do.” Termination or other disciplinary action of a tenured professor can be pursued if appropriate. Remember, too, the mantra we all know and love when it comes to Title IX: Even if you can’t discipline a responding party there are still many other things you can do to address alleged misconduct by a tenured employee.
Similarly, with academic freedom and First Amendment concerns, because OCR has long said that Title IX does not reach curriculum or curricular materials or impinge on Free Speech rights, you must consider whether your investigation or response should be limited based on the rights of the responding party. We will talk through some examples and considerations during our webinar, but suffice it to say that although this consideration can involve a tricky analysis, it is possible to achieve the right result.
Whether in private practice or at OCR, I have seen time and time again the same scenario play out when an employee is responding to a sexual misconduct complaint. The employee is found “not responsible” for misconduct, has ongoing responsibilities to the student who is the complaining party (such as teaching or advising), and the employee fears that the student will just complain again if their interaction continues. So, what does the employee do? Cuts off or limits interaction with the student to “protect myself.”
What is the concern? Title IX prohibits retaliation, and that can (but does not always) include limitations on interactions after a complaint is done. It can be difficult for employees to understand that rebounding from complaints made in good faith comes with the territory of employment in schools and other workplaces. But rebuilding the relationship after a complaint is essential in many circumstances. We will discuss more about how to prevent retaliation while helping employees feel supported and protected in our webinar on December 10.
And More . . . .
During our webinar, we will address these and other issues, including the interplay between Title IX and its employment-law counterpart, Title VII; communication issues when employees are accused of sexual misconduct; and mandated reporting issues. You can register for the webinar here. We hope you can join us! Please comment on this post with any questions you would like us to try to address, or email them to firstname.lastname@example.org before the webinar. We would love to hear from you!