Title IX And Your Legal Counsel

As activists and legal advocates warned, the Trump administration has already done significant damage to civil rights designed to protect students. The news that the U.S. Department of Education is cutting back its investigations of claims is only the most recent example of just how little students and their advocates can rely on federal oversight. The withdrawal of Obama-era guidance on accommodations for transgender students and claims that gender discrimination in education is a matter of states’ rights have redrawn battle lines forged under the previous administration. While campus activists propelled that sympathetic administration to action through an unprecedented number of Title IX complaints submitted to the Office for Civil Rights, the blatant hostility of Donald Trump, Betsy DeVos and Jeff Sessions is forcing activism back to the local level.

While efforts to oppose the administration’s attacks on Title IX and other enforcements against sex discrimination are vital, I am also welcoming a renewed focus on local accountability. Now that many more colleges and universities have dedicated Title IX offices and staff, it is time for activists to take a hard look at what it takes to make this work successful. For activists working with (and against) relatively well-resourced institutions, I suggest putting the spotlight on an overlooked but exceedingly powerful entity: your university’s legal counsel.

Unlike the highly visible offices of presidents, provosts and even Title IX coordinators who are routinely the target of student demands for accountability, university lawyers are often spared this external pressure, and only the most seasoned student activists even know such an office exists. This invisibility is structural and deliberate; unlike administrators, lawyers do not hold office hours, and many legal offices have an unofficial policy of not meeting with students. Those of us pushing colleges and universities to act in accordance with their values must start fighting this invisibility or we will continue to misgauge where the actual levers of power reside.

So, let’s take a moment to power map. Institutions that can support in-house legal guidance receive counsel on virtually all decision making -- think faculty governance, real estate acquisition, financial aid and student conduct, for starters. A legal office evaluates everything from demands for sanctuary to unionization efforts to Title IX-related policies, with the aim of mitigating the college or university’s exposure to risk, be it legal or financial (and these often go together). The senior counsel is likely one of the institution’s highest-paid employees, and this position usually has a direct line to the president. This powerful office serves the institution; its obligation is to the university itself.

Therefore, the legal office has a fundamentally different aim than a Title IX office, which serves students, administrators and faculty members affiliated with the institution. A Title IX office is charged with making sure that incidents of gender discrimination are addressed promptly and equitably. This means, in part, facilitating a complaint process that balances the rights of all parties while resolving alleged policy violations related to Title IX. Ideally, this process is within a college or university’s Title IX office.

Given that, it is not difficult to imagine how a Title IX office might find itself at odds with the university’s legal representatives. To be sure, legal counsel is responsible for ensuring that the institution is in compliance with all manner of federal and state regulations, including Title IX, and so, in that respect, the offices’ aims align. When it comes to the specifics of individual cases, however, there will undoubtedly be competing risks with which legal counsel must contend.

Perhaps most obvious is the student or faculty member who retains a lawyer and threatens legal action. This instantly becomes the competing, more immediately pressing, risk of litigation. Litigation is costly; well-resourced colleges and universities hire external litigators when they go (or are taken) to court, which means institutions are paying an additional fee on top of their in-house expertise. This “threat” does not incentivize a Title IX office to re-evaluate its aims in the same way; its responsibility remains equity, especially in the face of litigation. When confronted with such power imbalances, the Title IX office is required to work toward restoring parity. Legal counsel, in contrast, works to inoculate the institution from financial and legal harm. Equity -- especially when it is clear one party will not or cannot attempt to rectify the imbalance of their own accord -- becomes a secondary concern.

Beyond the specifics of individual cases, climate and legal trends also influence a legal office’s risk assessment. By now, the backlash to colleges and universities taking Title IX seriously is in full swing, as groups like Save Our Sons and the Foundation for Individual Rights in Education help popularize the argument that Obama-era guidance on addressing sexual assault often inherently violates students’ due process. Accused students with sufficient financial resources are increasingly lawyering up upon receiving a complaint, and lawyers are capitalizing on the narrative that Title IX protections imperil procedural fairness.

This climate only reinforces a Title IX office’s original aim to make sure that gender discrimination is resolved promptly and equitably, of which due process is a fundamental component. But for a legal office, this climate tips the scales towards one risk -- legal action from an accused student or faculty member -- and away from another -- failing to uphold what is required under Title IX in every individual case.

Of course, all institutions must do the hard work of resolving competing aims. But when it comes to putting Title IX to work at the local level, numerous resignations of Title IX coordinators suggest which offices’ aims prevail when push comes to shove. While the documentary The Hunting Ground popularized a narrative about colleges and universities callously putting their brands and sports teams before their students, a far more mundane and inherently structural problem also necessarily curtails a robust implementation of Title IX. University legal offices and lawyers are not by definition malicious, but there will inevitably be cases that incentivize legal counsel to advise universities according to how best to avoid the immediate risk of litigation.

That can happen even when the law is on a university’s side, and even if it means sacrificing equity in a particular instance. And, because victims and survivors of sexual assault have largely turned to OCR for justice while respondents (the accused) have largely turned to the courts, avoiding litigation can mean bending a process for respondents and sacrificing equity for complainants simply because respondents are more likely to threaten suit. These are the instances in which a legal office -- by virtue of its role within the university -- necessarily imperils a Title IX office’s ability to ensure equity.

Thankfully, this problem is not insurmountable. Campus activists can take stock of their university’s legal representation to see whether campus lawyers have expertise in Title IX. This is a reasonable ask given that lawyers continue to play a role in Title IX implementation. They can work to make the relationship between legal counsel and the Title IX office transparent, to ensure that offices share a commitment to equity. Perhaps most important, they can call on presidents to weigh legal guidance and decide that weathering risk is worth institutional principles.

Campus activists have long made use of a vital tactic: holding the university to its stated values. For Title IX, this will mean ensuring that institutions commit to putting equity above risk even and especially in the face of legal action.