When then-President Barack Obama rocked the education world with his “Dear Colleague” letter in 2011, Kara Larsen wasn’t paying much attention.
The revolutionary guidance on sexual discrimination protections in schools had little to do with her job at the Office of the Attorney General in Washington state.
Little did Larsen know that a decade later, the federal civil rights law known as Title IX would consume her summer.
It was June 2020 and Larsen had just started a new job at the University of Rhode Island as assistant vice president of enterprise risk management and Title IX coordinator.
New Title IX laws issued by the Trump administration had upended the Obama-era standards for how schools dealt with sexual discrimination.
Larsen spent the first few months of the job combing through hundreds of pages of federal documents and attending virtual webinars explaining the legal nuances as she worked to ready URI for the changes.
“It was, of course, challenging,” said Larsen, an attorney who had previously specialized in employment benefits and health care law. “It was a new subject for me. But that’s what lawyers do; we read the regulations and we learn.”
Now, those same lawyers, including Larsen, are trying to learn a new set of rules. The Biden administration in June proposed sweeping changes to the gender equity law, reversing many of the Trump-era changes around who is protected and from what, and how schools should handle the complaint process when problems arise.
Though still in the early stages of the process – with ongoing public comment before administrative approval and a congressional review – schools and attorneys are readying for what’s coming.
Some predict trouble ahead.
“We’re headed for a huge political and judicial log jam,” said Steven M. Richard, a partner at Nixon Peabody LLP in Providence who leads Title IX and education practices. “It’s a quagmire.”
Richard’s biggest concern was not with what is being changed, but rather the see-saw pattern of requirements changing from one presidential administration to the next. Richard, who represents several Rhode Island higher educational institutions in Title IX lawsuits, said the ever-changing interpretation of the law makes it hard for schools to keep up.
There are also trainings for staff and students – expanded under the Biden proposal – and a process for investigating and taking action on complaints.
The latter was what most concerned John R. Grasso. While the current law set forth by the Trump administration lays out a quasi-judicial hearing process, including cross-examination, for Title IX complaints, the new Biden proposal would give schools more flexibility in how they settle these complaints. Formal hearings and cross-examination would no longer be required, and a single investigator can examine the facts and make a decision.
Grasso, a criminal defense attorney with his own Providence practice, said this would violate due process.
“It’s ridiculous,” said Grasso, who has represented students accused of Title IX complaints – known as respondents – from many Rhode Island colleges and universities. “Without the opportunity to access evidence and challenge it in a somewhat real-life hearing, any confidence and trust in the process that remains will be lost.”
Grasso didn’t think the change to a single-investigator model, if approved, would mean fewer Title IX complaints. But it would make it harder for him, as the attorney representing respondents, to win those cases.
“Eventually, I think the system will preclude people like me from being useful to young men or women accused of Title IX violations,” Grasso said.
Anthony F. Cottone, chief legal counsel for the R.I. Department of Education, offered a different take. He welcomed the changes, which would make it less traumatic or intimidating for the students – some as young as elementary school-aged – to speak up about gender discrimination or harassment.
“It’s especially important in elementary and secondary school to have flexibility [in adjudication] because of the age and vulnerability of the victims,” he said.
The Biden proposal also widens the protections to include gender identity and students and employees who are pregnant.
Cottone said the changes could increase the number of complaints made to the district alleging Title IX violations. But that wasn’t a bad thing in his view.
Larsen, meanwhile, was unsure the new laws would make much of an impact at URI, as the university has had relatively few Title IX complaints.
Indeed, official violation numbers did not change drastically after the Trump laws took effect, dropping from seven in the 2019-20 academic year to five the next, Larsen said.
And while the newest set of laws includes many big changes, she felt the university was well positioned to adapt, in part because it already goes above and beyond the minimum training requirements for students and employees.
