Talking Stick - November/December 2017 - 52

hereas, in the
past, practitioners learned of
the historical
legal cases, laws,
and resultant
policies via their higher education law
courses and through experience on the
job, recent history has demonstrated
a degree of change not seen since the
time when the legal drinking age in
the U.S. was raised in 1986 or the
Americans with Disabilities Act was
levied in 1990. More recently, the
profession has had to navigate federal
and state policies related to service and
comfort animals, the Affordable Care
Act (ACA), changes to the Fair Labor
Standards Act (FLSA), firearms on
campus, the legalized use of marijuana, Title IX regulations, and many
others.
Adding to the challenge of keeping up with these changes is the fact
that differences in campus cultures
and system policies have meant that
models of interpretation and resulting
action are a moving target. Campuses
as a whole, and housing departments
specifically, are forced to be more proactive and to be educated about legal
issues involving equality, citizenship,
and employment so that they are able
to pivot around anticipated changes
and the accompanying fallout.
The following is a snapshot of some
of the more pressing issues facing
higher education at the end of 2017.

TITLE IX OF THE
EDUCATION
AMENDMENTS ACT
Title IX is the amendment enacted
in 1972 stating, in the most broad
terms, that no U.S. citizen should be
discriminated against on the basis of
their sex as part of any education pro-

TALKING STICK

gram or activity that receives federal
financial assistance. In its lifetime it
has been used to focus on a number
of different kinds of sexual discrimination including, most recently,
sexual assault response and transgender discrimination.

The nature of
housing and
residence life, with
its mission to serve
students with
safe, inclusive,
and welcoming
communities,
puts staff and
their practice
front and center
in navigating both
Title IX regulations
and honoring the
spirit and context
of the law.
While the spirit of the amendment
has always been clear, its broad nature
has left it open for interpretation. That
changed, somewhat, when in 2011 the
Office for Civil Rights of President
Barack Obama's administration issued
a "Dear Colleague" letter that spurred
colleges and universities to re-evaluate
office orientations and protocols in
an effort to address issues of sexual
harassment and assault on college
and university campuses. Staffed by

specially trained investigators and educators, efforts focused on mandatory
prevention education and the reporting and thorough investigation of all
reported incidents of sexual assault, as
well as the adjudication of cases. Later,
these efforts would be accompanied by
a highly visible public relations campaign led by Vice President Joe Biden
and amplified by groups such as It's
on Us. In addition, in 2014 the Department of Education issued additional
guidance on the application of Title
IX to transgender students. Primary
implications included rights to access
based on gender identification, as well
as clarification of existing civil rights
protections. These were, arguably,
motivated by issues contesting access
to single-sex environments based on
gender identity.
Even as campuses modified policies
and procedures to meet these updates,
there remained some debate. Campus
lawyers explored questions about what
constituted "standards of proof" and
"a preponderance of evidence." Some
states issued guidelines that contradicted the federal directives related to
the rights of trans students and staff.
And, as time passed and the 2016
presidential election drew near, campuses considered whether or not they
should adopt a wait-and-see approach,
wondering if a new administration
would reverse course.
Shortly after the 2016 presidential
election, that notion began to play itself out. Leaders of the Department of
Education (Secretary Betsy DeVos) and
the Department of Justice (Attorney
General Jeff Sessions) each vocalized
concern with the consequences of
how Title IX was interpreted by the
past administration. Specifically, they
focused on what was believed to be a
lack of due process for respondents
to sexual assault complaints and the
legality of interpreting Title IX in support of transgender student protections and access. While the regulatory

Talking Stick - November/December 2017

Table of Contents for the Digital Edition of Talking Stick - November/December 2017