Addressing common misconceptions about the new Title IX regulations

The Department of Education finalized its new Title IX regulations less than two weeks ago, and already, a lot of misinformation about them has been published in various forms of media. We can’t address it all here, but we wanted to at least clarify some points that many commenting on the regulations are getting wrong.

Often, misinformation about the law proliferates because people don’t have the time or energy to check original sources. Commentary doesn’t always include citations, and sometimes people think they won’t be able to read or understand legalese anyway. On the second point, they’re usually wrong. So when in doubt, readers: Be skeptical of any source that doesn’t quote and link to the regulations themselves, and go back and read them yourselves.

Without further ado, here are some commonly shared incorrect or misleading statements about the regulations:

The regulations mandate that sexual harassment cases be treated differently from racial harassment cases.
The regulations require that federally funded educational institutions — all but a few colleges and universities across the country — respond a certain way to sexual misconduct, and these requirements do not all apply in non-sexual misconduct cases. ED isn’t instructing schools to treat non-sexual misconduct cases differently, per se; it just can’t create obligations for how institutions handle non-sexual misconduct allegations in Title IX regulations, because Title IX governs sex discrimination only. Under the new regulations, institutions will no longer be required or encouraged to provide respondents in sexual misconduct cases fewer free speech and due process rights than they have been providing respondents in non-sexual misconduct cases.

With respect to the definition of harassment, for example, critics argue that sexual harassment will have to reach a higher threshold before schools can and must punish someone engaging in sexual harassment compared with racial harassment.

[T]here are many sources of misinformation out there, including individuals and organizations that should know better.

It’s easy to see where this misinformation comes from: In the spring of 2013, the Department of Education promoted an unconstitutionally broad definition of sexual harassment — “any unwelcome conduct of a sexual nature,” including “verbal conduct” — although it publicly backed away from this definition just months later. As FIRE explained at the time, the Supreme Court of the United States established the legal definition of student-on-student (or peer) sexual  harassment in the 1999 case Davis v. Monroe County Board of Education: conduct “that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”

Moreover, in its 2001 Revised Sexual Harassment Guidance, issued by President Bill Clinton’s Department of Education the day before President George W. Bush was inaugurated, ED’s Office for Civil Rights addressed requests “to provide distinct definitions of sexual harassment to be used in administrative enforcement as distinguished from criteria used to maintain private actions for monetary damages.” It declined to do so, explaining that “schools benefit from consistency and simplicity in understanding what is sexual harassment for which the school must take responsive action. A multiplicity of definitions would not serve this purpose.”

The new regulations’ definition of hostile environment harassment tracks the Davis standard: “Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” So if critics have a problem, their problem is with the Supreme Court, or perhaps with the Clinton administration, not with the current Secretary of Education.

In any case, courts have been applying the Davis standard to racial harassment cases for almost Davis’ entire existence. When ED instructed institutions to punish “any unwelcome [speech] of a sexual nature,” it didn’t make the same instruction with respect to racial harassment. As a result, institutions were left with the impression that they should be punishing a far broader spectrum of sex-related speech than race-related speech. The new regulations simply clarify that both types of harassment should be assessed according to the Davis standard.

FIRE would be very pleased to see the regulations’ procedural safeguards guaranteed in all serious, non-academic misconduct cases.

Similarly, with respect to the standard of evidence, schools are already treating sexual and racial misconduct cases differently, and the regulations explicitly allow institutions to treat them the same way. In a 2011 “Dear Colleague” letter, ED mandated for the first time that all institutions governed by Title IX use the “preponderance of the evidence” standard in adjudicating sexual misconduct cases — but again, it made no such mandate with respect to race-related cases.

As a result, most colleges maintain a bifurcated system where sexual misconduct cases are dealt with differently from all other cases, including racial harassment cases. Some schools, inclined to require “clear and convincing evidence” for a responsible finding, have been using a higher standard of evidence for non-sex-related cases than for sex-related cases since 2011. ED’s rescission of this 2011 mandate and finalization of the new regulations gives institutions a path (and ED has encouraged institutions) to use the same standard for both types of cases.

Finally, with respect to the adjudication procedure aside from the standard of evidence, the same is true. Many institutions already provide live hearings for non-sexual misconduct cases, but not for sexual misconduct cases. This may be in part due to a 2014 report by the White House Task Force to Protect Students From Sexual Assault, which encouraged schools to use a single-investigator model for sexual misconduct cases. Under the new regulations, these schools will give students facing non-sexual misconduct cases and students facing sexual misconduct cases more similar opportunities to defend themselves and challenge the evidence against them in a meaningful hearing.

FIRE would be very pleased to see the regulations’ procedural safeguards guaranteed in all serious, non-academic misconduct cases. (In fact, FIRE has worked with legislatures to enact bipartisan legislation that provides consistent, robust safeguards in campus proceedings whenever there is a potential penalty of 10 or more days of suspension or expulsion on the line.) But for now, the regulations at least help ensure that respondents in sexual misconduct cases possess many safeguards they are often granted already in non-sexual misconduct cases.

Much more HERE 






Could Homeschooling Really Grow by 500 Percent?

There are about 2.5 million homeschooling children in the United States today. But what if there were 8 million more kids homeschooling in the fall?

There is reason to believe this could happen.

An EdChoice public opinion poll suggests that more than half of parents with school-age kids have a more favorable view of homeschooling after the onset of the COVID-19 pandemic. A Reason Foundation Facebook poll conducted by Corey DeAngelis suggests that about 15 percent of all children could be making the switch to homeschooling in the fall. And a May 14, 2020, Real Clear Opinion poll of over 2,000 registered voters found that as many as 41% of parents are more likely to homeschool this fall.

It seems certain that parents and students will consider many different “new” options this year.  This can only be more so as reports are making parents think twice about sending kids back to schools that will be mandating temperature checks, hand sanitizer, face masks/shield, social isolation, and staggered classes upon reopening. In France, some children are being told to draw their own 6 foot by 6 foot chalk squares where they can “enjoy” their recess.  In England some teachers have suggested “spraying pupils with disinfectant”.  All of this suggests that this coming school year will be anything but “back to school” as usual.

According to the National Center for Education Statistics (NCES), there are about 57 million school-aged children in the United States. Of these kids, about 50 million were enrolled in public schools, and 7 million were enrolled in private schools. In 2017, Education Week estimated that the number of children enrolled in public charter schools was 3 million.

If we use the lower percentage of possible “switchers” in the Reason poll, then about 7 million public school students, 420,000 public charter school and about 1 million private school students will be homeschooling later this year. That would be a whopping 8.5 million more homeschooled students. Adding the 2.5 millions of current homeschoolers gives us over 10 million students homeschooling this fall. 

10 million kids homeschooling in the United States? Wow. That would be a jump of about 500 percent. If these polls are even remotely close, we are looking at major shifts that will have effects rippling all over in interesting and hard-to-predict ways.

For example, with fewer students in school, schools might have fewer teacher positions leading to possible staff reductions. Furloughed teachers might find work tutoring out-of-school kids or finding jobs with the new spate of start-ups taking advantage of the new demand of parents for out-of-school learning opportunities.  Entrepreneurial start-up Outschool is looking to hire 5,000 teachers to meet the new demand. States seeing decreased revenue from taxes due to the economic impact of the shutdown measure might be glad to see less students showing up in the hallways so that their government budgets might be spared some of the per-pupil funding. Most of these costs would be borne by families which might put some pressure on policy makers. Tax credits would be one way to recognize this financial burden. Ten million homeschoolers equals a total “savings” of about $127 billion at the average per pupil funding rate of just over $12,000.

What might this mean for children?

For the 10 million plus kids who would be learning outside the four walls of the public, private, and charter schools there could be a lot more freedom and a lot less pressure. They and their parents will choose their own curriculum. They and their parents will choose their own flexible schedules. They will do education in a more life-integrated way, on their own timeline and on their own terms. Kids will have more time to play. To read. To explore things that interest them. To learn more at their own pace. To socialize in healthy ways, with less negative peer pressure and school-related issues like bullying.

Some have lamented this possible increase, worrying that more homeschooling will be bad for children.   But the numbers show that the opposite is more likely true.

Vanderbilt University Dr. Joseph Murphy’s comprehensive literature shows that homeschooling produces individuals who are at least as well educated and well socialized as their public or private school counterparts—a lot of research shows even better results. Homeschooling grads are more politically tolerant than their public or private school counterparts, says Dr. Albert Cheng’s empirical study. Dr. Lindsey Burke found that a majority of research point to superior academic outcomes for homeschooling. Homeschooling is diverse contrary to the assertions of others that homeschooling is only done by “ white conservative Christians”.

Harvard Law School graduate, author, Supreme Court clerk, and homeschool graduate Alex Harris says, “education was woven into everything we did in my family. There was always something to read and talk about around the dinner table. My parents never seemed to miss an opportunity for instruction. They were particularly adept at identifying what I was most passionate about, and then using that as a tool for teaching . . . They wanted us to love learning.”

What’s not to like about that?

Who could have ever imagined that we would experience a global pandemic that would put 1.5 billion children in 190 countries out of school? Who would have imagined that entire countries and states would virtually shut down their economies?

If that can happen, why couldn’t there be 10 million kids happily homeschooling this fall?

Even if some or even many of the new homeschoolers transitioned back to regular schools when things calm down and return to some normalcy – 10 million homeschooled children would have a significant (positive) long-term impact on how America does school.  Based on how homeschooling has stacked up so far, that would be just fine for the kids, their families, and their country.

SOURCE 





Australian universities face an existential dilemma from loss of income

Time for efficiency reforms

Australian universities are "some of the most creditworthy entities in Australia and the world", ratings agency S&P Global says in a report on the effects of COVID-19 on this country's higher education.

This should put universities in a good place for what will be a punishing 12 months to come. The Group of Eight conservatively estimates a revenue downturn of $2.2 billion for 2020.

Already universities with small cash buffers, among them La Trobe University and Central Queensland University, are flagging redundancies.

S&P Global says universities have healthy balance sheets and low debt levels. But that's putting it kindly.

Critics of the university sector refer to lazy capital tied up in buildings and land holdings, which in some cases are used for only the 28 weeks a year when students are actually on campus.

And without shareholders to keep an eye on costs, payrolls have expanded in a heavily unionised workforce.

Robert Leeson, a professor of economics at Notre Dame university in Perth and biographer of the classic-liberal economist Friedrich Hayek, says Australian universities would benefit from some "creative destruction" of their own, reducing the ranks of middle management and making them more efficient.

As the post-coronavirus reality begins to bite, some policymakers are arguing for structural reform in higher education.

National lead partner for education at KPMG, and a former vice-chancellor at the University of Canberra, Stephen Parker, says the last real reform in higher education was 30 years ago when education minister John Dawkins let colleges of advanced education merge with universities.

S&P Global analysts said there was an appetite in Canberra for university reform.

Its recent report said: "We anticipate that when the pandemic is over, there will be greater political pressure on Australian universities to diversify or reduce their reliance on foreign students."

Some industries facing revenue shortfalls after COVID-19 are talking about mergers to get economies of scale and a more stable revenue base. But Australian universities are already large by global standards.

The vice-chancellor of Monash university, Margaret Gardner, doubts that growth by merger is the future for Australian universities.

She says she can't see the policy setting that would underpin mergers. In any case, universities are already very large. Monash has nearly 70,000 students, making it massive by comparison to British and US universities. Professor Gardner says in some senses it is already "merged" with other universities – through joint research projects with domestic universities and by collaboration with overseas institutions.

Also working against mergers is the fact that universities define themselves by their relationship to local communities.

Monash has a strong identity with communities in Melbourne's south-east, not the least because of the massive health market it serves with research and clinical services.

Gardner agrees that universities are going to change but says "the notion that Uni X merges with Uni Y is a very big question that intersects across community and government interests."

If consolidation through mergers is off the table, one way to get greater efficiencies would be a series of more simple alliances doing things such as shared back office, joint tenders for research or submissions to government.

Professor Parker points out the great universities of California are part of a state alliance.

The former vice-chancellor of Deakin University and interim vice-chancellor of the University of Western Australia, Jane den Hollander, says alliances are already on the agenda of university councils.

All five universities in WA are members of the Forrest Research Foundation and this might be a good model for sharing costs and ideas, she said, without losing the structure of individual universities.

Another arrangement might be a federated model that brings together universities with a shared "market type", for example Geelong in Victoria with Newcastle and Wollongong in NSW.

"I'm interested in what regional universities do. Universities are to some extent the first pillar of the community," she says, echoing Gardner. "The big question is not just what happens in the capital cities. How do we nurture the regional role of the university?"

There are some long-established alliances, for example the Regional Universities Network or the Australian Technology Network, but these are more to do with marketing than local communities, shared resources or cost-cutting.

Working with business

The most likely university model for collaboration is with business.

This growth-oriented strategy is well established. Long before the government started pushing universities with tools such as performance funding to produce job-ready graduates, business has been moving onto campuses.

Monash University works with GlaxoSmithKline on pharmaceuticals, the University of Newcastle works with Brambles on printed solar collectors, and Sydney University is partnered with Telstra, Microsoft and Rio Tinto.

Edith Cowan University has 12-week work-integrated attachments for science students, and the University of Queensland commercialises research via its spin-off company UniQuest. UniQuest's first patent application for what was to become the Gardasil cervical cancer vaccine was lodged in 1991.

The University of NSW Torch Innovation Precinct ("We invite you to join us moving from mining and manufacturing to mass innovation and mass entrepreneurship"), which opened in 2016 and is focused heavily on China, is a "good model for driving growth", UNSW vice-chancellor Ian Jacobs says. "It's not going to release spare cash. But it covers its costs and it means we can do additional research."

Professor Jacobs says he has been "hammering" the link between university and business for five years. Universities get cash flow and job-ready graduates and businesses get intellectual property.

COVID-19 has also proven the possibility of some cost savings. UNSW Sydney thought it was at capacity three years ago, the vice-chancellor says. Now that idea is "up for review".

Collaboration, between universities or with business, looks like the best option for universities trying to maintain growth in the face of falling international enrolments.

SOURCE