New Requirements, More Costs

Community college officials say new federal regulations requiring costly new processes for handling sexual misconduct complaints are burdensome and unnecessary for largely commuter campuses.

June 10, 2020
 

Community colleges are allocating precious time, energy and resources to meet new federal standards for handling campus sexual assault and harassment. Lawyers and associations representing the colleges say the new requirements are impractical and unwarranted at the mostly commuter campuses and come at a time when the institutions can least afford it.

Colleges and universities across the country are trying to meet the U.S. Department of Education’s Aug. 14 deadline to implement the new procedures as they also respond to the pandemic and make preparations for the fall semester. Meeting the deadline will be particularly challenging for community colleges, many of which are experiencing budget shortfalls.

The new procedures fall under Title IX of the Education Amendments of 1972, the federal law that prohibits sex discrimination at institutions that receive federal funding. Community college administrators say current Title IX structures and staffing levels at their institutions are far less than required in the 2,000-page regulation issued in May. They believe the new requirements don't take into account the differences between traditional four-year, residential institutions and two-year commuter colleges that are more likely to serve young working adults and older students and less likely to get numerous reports of sexual assault.

David Baime, senior vice president of government relations and policy analysis for the American Association of Community Colleges, or AACC, said the burden the new Title IX regulations puts on two-year colleges is magnified by lack of funding. Recent and past state budget cuts have progressively eroded funding for community colleges, as have steady declines in enrollment over the last five years, according to data from the National Student Clearinghouse Resource Center.

“Community colleges tend to be overlooked when Title IX is thought of,” Baime said. “The compliance burdens can even be more acute for our colleges because of their resource situations.”

He said the Education Department’s new requirement that colleges allow students involved in sexual misconduct cases to participate in live hearings and cross-examinations is especially “daunting” to community college leaders.

"It goes without saying that maintaining a safe and secure environment in which all students can fully participate in all our programs is the first priority in this area for our CEOs," he said. "There is, however, a strong feeling across our campuses that the final rule is not the best way to achieve this."

The requirement has also been widely criticized as being potentially traumatizing by advocates for victims of sexual assault, but some federal appeals courts have upheld it as a standard of "fairness" to be provided to all students accused of misconduct.

JP Sherry, general counsel for the Los Rios Community College District, the second-largest community college district in California, said the district does not currently have the infrastructure to conduct live hearings.

The live hearing process will require community colleges to train and assign additional staff members to handle Title IX procedures even though the new regulations significantly reduce the number of reports community colleges are likely to see using Title IX, said Bill Mullowney, general counsel for Valencia College in Orlando, Fla. The regulations require colleges to use the Title IX process for misconduct that occurs on campus or within the scope of an educational program, but Valencia does not have residence halls or many on-campus social activities and is unlikely to get the volume of actionable complaints that universities do, Mullowney said.

“The student body tends to be older. A lot of them work full-time. They’re parents,” Mullowney said. “Not to say that we don’t have issues, but the intensity is a little bit lower. We still have to comply with the law just like everybody else.”

Jaslin Kaur, student engagement organizer for Know Your IX, a national advocacy group for survivors of sexual assault, agrees that community colleges often lack the resources and infrastructure to adequately respond to Title IX complaints -- and that the new regulations won't change that. She said community college students busy with work and childcare responsibilities and commuting back and forth to campus are less likely to know the protections that Title IX affords to them. The new regulations further reduce those protections, Kaur said.

“They’re mandating a different infrastructure for schools to get on board with, but the infrastructure itself is missing so much,” she said. “They see a federal mandate and they have to implement this … but there’s many ways that that’s a failure to the student body.”

According to an outline of the regulations provided by the Department of Education, all questioning in the live hearing process is to be done through “advisers,” who may be attorneys. The colleges must pay for and provide advisers for students who do not have them, which means each college would likely have to retain at least two advisers to represent individual students during the hearing process. Mullowney said Valencia officials are considering situations where a student on one side of a complaint hires a high-cost attorney to represent them during a live hearing and the other student has an adviser provided by the college. Would the college need to retain an experienced Title IX attorney to make the process fair on both sides?

“That’s going to be a big challenge and cost,” Mullowney said.

The new regulations also require three separate officials to work on different aspects of a Title IX complaint -- a coordinator to receive the report, an investigator to look into it and a decision maker to determine results and sanctions. The new regulations abolished the single investigator model that previously condensed these responsibilities in one role. This puts an extraordinary strain on community colleges with limited staffing, Mullowney said. Smaller campuses often designated their human resources manager or student affairs official to serve as their Title IX coordinator, he said.

Alex Baldino, the director of compliance and Title IX coordinator at Portland Community College in Oregon, said he is the only full-time Title IX coordinator among the state’s 17 publicly chartered community colleges, and his role also encompasses other civil rights issues, such as racial discrimination complaints. Even though Portland is the largest community college in the state, with 34,331 students enrolled in 2019, Baldino said PCC only received “a couple” of sexual misconduct complaints each year that would result in a live hearing process.

“The grievance process is going to take the largest investment of funds when we’re already low on funds,” Baldino said. “Because we don’t have dorms, because of the jurisdictional elements, we’re not going to have as many cases to get there. We’re going to have to spend a lot of money to build out a system that won’t receive as many cases as a university.”

In 2018, two-year public colleges in the U.S. recorded 713 reported criminal sexual assaults, while public four-year colleges said they had 8,660 reports on campus, according to the Department of Education's Campus Safety and Security survey. Crimes covered by the Violence Against Women Act and now included in Title IX under the new regulations, including domestic violence, dating violence and stalking, were reported more often at community colleges than the types of sexual assault covered by Title IX. Relationship violence was reported 2,064 times in 2018 at community colleges and 9,884 times at public four-year colleges, according to the survey.

Of 300 open investigations of Title IX violations by postsecondary institutions being conducted by the Education Department's Office for Civil Rights, or OCR, just 11 involve community colleges, according to a public database of such investigations. An investigation is typically initiated after a civil rights complaint is made to OCR.

Karen Smith, general counsel for the Oregon Community College Association, said the new regulations are especially challenging for smaller and more rural institutions. Tillamook Bay Community College and Oregon Coast Community College each enroll fewer than 1,000 students and have not had more than one sexual misconduct case in the last decade that would rise to the level of requiring a live hearing process. Both colleges are currently facing furloughs, layoffs and state budget cuts due to the coronavirus pandemic, Smith said.

“The training that will be required for the investigators, decision makers, potential advisers, are overly burdensome compared to the number of cases that require those types of hearings, and will take resources away from our other important work,” Smith said. “This will not be a time of hiring right now. They will have to look at current employees, at a reshuffling of job descriptions to meet the requirements now.”

Kaur was the president of her campus’s Women’s Student Association when she attended Nassau Community College in Long Island, N.Y., from 2015 to 2017. She said the college's hourlong required training that reviewed sexual assault resources did not adequately inform students where they could go to report misconduct or seek help. Community colleges’ inability to invest in better communication with students about their rights and resources under Title IX is a failure by the college, but also the result of funding deficiencies, she said.

“When we’re not making sure that community colleges have that funding, we’re failing survivors,” Kaur said. “They’re strapped for cash, truly … It’s a lot to ask for colleges across the board. The timing itself is so painful, especially during a pandemic. We’re not making accommodations for how our public schools, two-years in particular, are going to grapple with this.”

Sherry, general counsel for Los Rios, said the regulations give colleges an “incentive” to use existing student conduct processes and avoid triggering Title IX when complaints do not fit within the law's narrow purview. Mullowney said unless a complaint “fits squarely” in the Department of Education’s new standard for misconduct that activates Title IX, colleges such as Valencia will try to handle it through a separate process to avoid the new regulations’ complexities. The new regulations also offer opportunities for students to “nitpick” colleges’ processes if they are unhappy with the result and file complaints in federal court, subjecting institutions to even more costs for legal defense, he said.

It all almost seems like the regulations are forcing community colleges to engage in “mindless compliance” rather than ensuring the purpose of Title IX, which is to take sexual misconduct seriously and help students who are discriminated against or abused, Mullowney said.

“We actually thought that we provided a very fair process,” Mullowney said. “The focus was on helping people … This is really just about the process that we follow in these now very carefully defined cases. Regardless of the traffic, you have to have all the bells and whistles set up, even if no one knocks on the door.”

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