July 21, 2021

The Department of Education released today a 67-page Q&A document related to Title IX Regulations On Sexual Harassment.  That's 67 questions (with answers, as muddled as they may be) about sexual harassment that don't even include "Does 'harassment' have one 'r' or two?"

Note that it is not a good start when the 67 questions (with answers) only take up 32 pages, with the other 35 pages dedicated to footnotes, appendices, and general information. 

I feel guilty poking fun at anything related to Title IX and sexual harassment, especially as it occurs way too frequently, on college campuses.  At my own institution, we have debated for years scenarios that could create a quid pro quo relationship between student and employee, and I have probably been one of the few not willing to take the risk associated with such quid pro quo.

However, anytime the government seems to think it can help, the result is always more confusion and regulation that doesn't help anyone (with the exception of lawyers). 

Try and unpack this question and answer?

Question 17: Is a school required to respond to allegations of sexual harassment if the only employee or school official who has notice of the harassment is the alleged harasser?

Answer 17: Not under the 2020 amendments. At any school level—elementary, secondary, or postsecondary—the school does not have notice for purposes of Title IX if the only official or employee of the school with actual knowledge is the respondent.⁵¹ The preamble explains the reason for this is that the school “will not have [an] opportunity to appropriately respond if the only official or employee who knows [of the alleged misconduct] is the respondent.”⁵²

So, if I have harassed, please keep it to myself so that the institution doesn't have the hassle of addressing the harasser? I'd like to say that "privacy" is a given among harassers, but nothing surprises me anymore.

Sometimes, trying to unpack one answer isn't helped when it refers you to a different question, whose answer refers you to yet another different question, i.e. the Family-Circus type path of Question 42 to Question 51 to Question 37, which by the way references a 60-day time frame, most of which would be consumed trying to navigate those series of questions.

The answers often seem really brief when one might expect more depth, or much longer than seems necessary.  Take, "What does the Department expect from schools regarding prevention of sexual harassment?"  I would propose the answer is "everything." Or, at least a detailed list of specific actions, something that might justify 2 or 3 of the 67 pages.

Instead we get the following:

"The 2020 amendments focus on 'setting forth requirements for [schools’] responses to sexual harassment.'³ However, the preamble also says that 'the Department agrees with commenters that educators, experts, students, and employees should also endeavor to prevent sexual harassment from occurring in the first place.'⁴ OCR encourages schools to undertake prevention efforts that best serve the needs, values, and environment of their own educational communities."

What the hell? Shouldn't ALL educational communities have the same needs, values and environment when it comes to preventing sexual harassment? Does the faith-based institution get a different standard than the community college, which gets a different standard than the research institution? 

However, if this isn't enough for you, dear reader, you can also review the 974-page full transcript of the five days of public hearing that prompted this Q&A document.  There's no way I'm reading all of that but one can learn a lot by searching for words through the "find" function: 431 "harass" in the 974 pages; 40 "responsibility" in the 974 pages; 617 "education"; 105 "equal"; and, thank God, "academic freedom" only 11 times.  Any more and I would have been Springsteen's main character from "57 Channels”: "I can see from your eyes, Friend, that you're just about gone."