UNM Findings Letter: The Growing Micromanagement of Title IX Compliance

Last week on The Torch, my colleagues examined several alarming aspects of the April 22, 2016 findings letter released by the U.S. Department of Justice (DOJ) concluding its investigation of the University of New Mexico’s (UNM’s) handling of sex discrimination complaints by students.

Today, we shift focus from the burden that DOJ’s findings will likely have on the speech and academic freedom of students and faculty, to the burden they will place on university administrations struggling to keep up with the ever-more-specific requirements of Title IX compliance imposed by federal agencies.

After its exhaustive investigation of UNM’s Title IX enforcement practices—including scrutinizing (among many other aspects) its trainings for staff, students, and faculty—DOJ determined that UNM was out of compliance with Title IX “in key respects” and that the university “must do more” to address sex discrimination.

“This letter,” wrote DOJ, “constitutes notice of the Department’s findings, and of the minimum steps that the University must take to bring policies, practices, and procedures into compliance with federal law, and to remedy past violations.”

DOJ heavily criticized the sexual assault prevention trainings UNM provided to students and employees during the period investigated. DOJ, along with “experts in sexual assault prevention and training,” reviewed UNM’s trainings and found that they were “lacking in content and depth” and that they “did not reflect current research or align with best practices in the field.”

DOJ highlighted several specific failings, including the following:

• UNM did not dedicate sufficient personnel to “support the development and dissemination of sexual harassment prevention training.” DOJ noted in particular that “[t]he need for sexual harassment prevention training at a school the size of UNM is too great for a part-time position.”
• UNM’s trainings were “dated in both content and delivery methodology, in ways that limited their effectiveness.” DOJ described and cited to specific sources for “more current methodologies” that it presumably finds more acceptable.
• UNM “does not consistently use evidence-based curricula, evaluation, or pilots for any of its sexual harassment prevention training.”

The implementation of up-to-date and effective sexual assault prevention training is undoubtedly invaluable to the safety and well-being of any campus community. But what raises concerns here is the context of DOJ’s criticism and the use of that context to convert the agency’s understanding of “best practices” into required practices for colleges and universities.

The agency delivers its evaluation as part of an investigation of the policies, procedures, and practices that, in DOJ’s estimation, render UNM non-compliant with federal law. The findings letter outlines the “minimum steps” UNM must take in order to achieve compliance. The clear implication is that the content, dissemination, and evaluation of sexual assault prevention trainings must meet the agency’s notions of acceptably-current and appropriately-resourced in order to comply with Title IX.

This represents a significant step beyond what is required by federal law and regulations with respect to sexual assault trainings at colleges and universities.

Under the Violence Against Women Reauthorization Act of 2013 (VAWA) and its implementing regulations (which amended the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act)), schools are required to offer all incoming students and staff “culturally relevant, inclusive [sexual violence] prevention awareness programs,” as well as maintain ongoing prevention and awareness campaigns. While certain information must be included in the trainings (definitions of prohibited conduct and consent as it is defined by the local jurisdiction, information on school policies and procedures, and so forth), the Department of Education (ED), which promulgated the regulations, does not mandate specific content or means of distribution. Indeed, in response to a public comment encouraging ED to require an emphasis on technology in prevention programs through the VAWA implementing regulations, the agency stated, “The Department cannot require the specific content of an institution’s prevention training, although we strongly encourage institutions to consider including information on existing technology so as to better inform their audiences.” (Emphasis added.)

The UNM findings letter, on the other hand, appears to require the “content and depth” of trainings to align with “best practices” as understood by unnamed experts and that the university meet an unspecified ratio of training staff to students. This rings of the kind of substantive directive that ED states it could not make in the VAWA regulations. However, the practice of imposing substantive requirements on colleges and universities through investigative findings and interpretive guidance—outside of the statutory or regulatory authority to do so—is by now a fairly familiar practice by ED and DOJ.

In 2011, remember, ED’s Office for Civil Rights issued a “Dear Colleague” letter to colleges and universities nationwide, announcing new requirements for campus adjudications of sexual misconduct under Title IX, including the use of “preponderance of the evidence” as an evidentiary standard. Last week, my colleague Azhar Majeed recalled the 2013 joint letter from ED and DOJ concluding its Title IX investigation of the University of Montana and introducing a broad, vague definition of sexual harassment that the agencies put forward as a “blueprint for colleges and universities throughout the country.” With the potential for multi-year investigations and federal funding on the line, colleges and universities have plenty of incentive to heed DOJ and ED directives on Title IX compliance, whether or not they derive from statute or regulation.

Setting aside questions regarding the merits of DOJ’s critique of UNM’s trainings or what makes sexual assault prevention training effective and successful, a central problem here is the use of agency enforcement authority to increasingly micromanage content, practice, and even institutional resources in the Title IX context. If the UNM findings letter is any indication, there is little about a college or university’s handling of sex discrimination on campus that will remain locally controlled in coming years.