Lauren Starnes, J.D., Consultant, TNG Consulting, LLC
Picture this: you receive a complaint from a student who is a member of your school district or institution’s student newspaper alleging Title IX sexual harassment that involves a fellow member of the student newspaper staff. You meet with the complainant, and they request a mutual no contact order (NCO) as a supportive measure and file a formal complaint. You send out the Notice of Investigation and Allegations to the parties. You work with the student newspaper’s faculty advisor to implement the NCO, including reassigning editorial groups and workspaces, and generally making every effort to minimize contact between the parties. Word travels fast and rumors swirl. Before you know it, the student newspaper’s editor-in-chief is in your office explaining that because of the complaint, they have already removed the respondent from their position as editor of the politics section and reassigned all their current assignments to other members. The editor-in-chief then states that the rest of the editorial board has voted to remove the respondent from the organization.
Does this sound familiar? If so, you are not alone. How do you manage the editor-in-chief’s preemptive actions in the above-described hypothetical? What about the faculty advisor who wants to remove one or both students to keep the peace? Or the fraternity or sorority who wants to remove the respondent-member? Or the student government association that votes to remove the respondent from their elected position as president of the organization?
Generally, an organization’s options to address these kinds of situations depend on the type of organization. For example, institutions host a fraternity or sorority under the umbrella of a national organization. Fraternities and sororities may follow the procedures the national organization has in place for removing members. Those organizations are not run by the institution. They are hosted by the institution.
By contrast, a school- or institution-sponsored organization, such as a student newspaper, yearbook, student government association, mock trial team, or pre-med society, needs to follow the institution’s protocol for student organizations. The student organization’s constitution and/or bylaws should include institutional protocols for removing a member to ensure the organization does not violate institutional policy and Title IX. Those protocols need to honor the protections of applicable Title IX regulations.
Under the 2020 Title IX regulations “education program or activity” includes locations, events, and circumstances, including any building owned or controlled by a student organization recognized by the institution, where the institution has substantial control over the respondent and the context of the sexual harassment.[1] The 2020 regulations require institutions follow the Title IX grievance process before imposing any disciplinary actions or sanctions that are not supportive measures.[2] Supportive measures are non-disciplinary, non-punitive services that are designed to restore equal access without unreasonably burdening the other party.[3]
Based on the regulations, we can deduce that: (1) student organizations such as the student newspaper in our original hypothetical are part of an institution’s education program or activity, and (2) institutions may only use supportive measures absent a finding after the Title IX grievance process or an emergency removal.[4]
ATIXA recently asked the Office for Civil Rights (OCR) whether a school-sponsored, student-organization could remove a student accused of sexual assault from the student organization before a finding of responsibility. In its response, OCR primarily cited sections from the Preamble of the 2020 regulations that address supportive measures; however, OCR’s response noted that although the Preamble clarifies OCR’s interpretation of Title IX, it is not legally binding on recipients.
Specifically, OCR clarified that the regulatory language does not state that a supportive measure cannot impose any burden on the other party.[5] Rather, the question of whether a supportive measure unreasonably burdens a respondent is a fact-specific inquiry that considers: (1) the nature and purpose of the student organization in which the respondent is participating, and (2) whether removing the respondent from the organization as a supportive measure would result in the respondent forgoing the benefits and opportunities of the student organization.[6] OCR also noted that the Department of Education did not include a blanket ban prohibiting all removals from extracurricular activities; rather, the grounds for such removals are narrow and fact-specific.
Considering this information, would the editor-in-chief’s actions in our student newspaper hypothetical violate the regulations? Likely, yes. The regulations require that recipients treat all parties equitably and that no disciplinary sanctions or other actions occur before an investigation, hearing, and finding occurs. Here, the editor-in-chief has summarily removed the respondent from their leadership position within the organization, removed them from their current assignments, and plans to remove them from the organization entirely, all based on an as-yet unproven allegation.
Considering OCR’s response, it is difficult to think of a hypothetical where removal from a student organization would not be an unreasonable burden unless the emergency removal criteria are met. This is because a student joins a school-sponsored organization for many reasons–the organization may relate to their major, prospective career, or post-graduate program, desire to engage with the school or larger community or to simply learn a new activity or skill—all of which provide some sort of benefit or opportunity to the student. Further, unlike a class with multiple sections or a residence hall with many similar rooms that institutions may use to minimize contact between the parties, a student organization is unique to the institution. Institutions rarely (if ever) have more than one student newspaper, pre-med society, student government association, or environmental club.
Now, let’s turn back to our student newspaper hypothetical. When you explain to the editor-in-chief that they cannot take any of those actions, they will almost certainly be disappointed and angry. They may accuse your institution of condoning sexual harassment and allowing perpetrators to roam free on your campus. They may assert that the respondent’s continued presence will impact morale within the newspaper. Or they may argue other staffers don’t want to work with the respondent and may resign in protest if the respondent remains. What should you do? First, explain that the current Title IX regulations limit the institution’s response. Emphasize that due process and equal access are throughlines of the current regulations. Outline the risks of non-compliance for both the institution and the student organization. Then explain what the editor-in-chief can do. For instance, they can work with the Title IX Coordinator and the faculty advisor to implement the NCO, minimizing all direct and indirect interaction between the parties at the student newspaper. You can also offer to meet with the student newspaper members to review reporting, the grievance and investigation processes, and your institution’s retaliation policy. The parties’ attendance at the meeting can, of course, be voluntary. Could the editor work with the respondent to take a voluntary leave of absence from the newspaper staff? Yes, if the respondent is open to it to keep the peace until the Title IX process is complete. But the decision is the respondent’s to make voluntarily, and the editor cannot coerce the respondent.
Meeting and providing Title IX training to student organizations before they face a complaint and/or investigation is also a great prevention technique. Members of student organizations, including faculty advisors and any organizational leadership, should know what to report, how to report, who manages Title IX complaints, and how the grievance process operates. Managing student organizations—or any closed group—amidst allegations of sexual misconduct between members is difficult, but acting proactively can help to mitigate some of the risks and conflicts that commonly arise.
TNG is here to help implement Title IX protocols for your institution’s student organizations. Contact TNG to learn how: inquiry@tngconsulting.com.
[1] 34 C.F.R. 106.44(a)
[2] 34 C.F.R. 106.44(a)
[3] 34 C.F.R. 106.33(a)
[4] See 34 C.F.R. 106.44(c)
[6] Preamble at 30231