The Department of Education released a controversial set of regulations establishing guidelines for sexual assault and harassment investigations earlier this month.
The regulations come after a two-year public comment period and were published by the Office for Civil Rights as part of Title IX federal gender discrimination laws. Notable changes include the requirement of universities to allow both parties the right to advisor-led cross-examinations, the allowance for universities to decide the standard of evidence to use in proceedings and changes to mandatory reporting standards.
The new measures also narrow the definition of sexual harassment and the geographic limits in which universities are obligated to pursue complaints. Critics and sexual assault advocacy groups argue that the new regulations deter reporting and broadly protect alleged perpetrators at the expense of the well being of alleged victims.
“This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process,” U.S. Secretary of Education Betsy DeVos said in a press release last Wednesday.
The University of Minnesota is currently evaluating ways to implement these changes within current guidelines already adopted by the Board of Regents and the Office of Equal Opportunity and Affirmative Action.
Responses to the changes
Some critics rebuke the changes for harming those who have experienced sexual misconduct, while others say the new guidelines bolster due-process protections.
Emily Ralph, policy director for SAFER, a nonprofit sexual assault education advocacy group, noted the vagueness surrounding the new mandatory reporting process standard.
Title IX coordinators will no longer be obligated to pursue investigations following multiple informal complaints against a single alleged offender. Ralph noted that mandatory reporting rules were pivotal in recent high-profile sexual abuse scandals at Penn State University and Michigan State University.
Ralph also criticized the live cross-examination requirement and the elimination of the single-party model in proceedings. She said the new model is less trauma-informed than the previous guidelines. Under the new measures, any case would require that at least three separate officials — a Title IX coordinator, an investigator and a decision-maker — are involved.
“There really are no models that I know of that are out there in which people have successfully shown that it is, you know, going to not create harm to a complainant to participate in this live cross-exam,” Ralph said.
Ralph estimates that this may lead to a decrease in reporting due to unfavorable conditions for complainants.
Maeve Sheridan, University of Minnesota alum and regional director for sexual assault advocacy group It’s On Us, is a survivor of sexual violence who said she wouldn’t have felt comfortable coming forward under the new statutes.
“I’m a very tenacious person. … But [reporting] was truly the hardest thing I’ve ever done,” Sheridan said. “I think having someone fully cross-examine me would have really been the biggest thing that would have had me like, ‘No way. I can’t do this. I’m 18.’ I was 18 — I don’t think I could have stood up to that.”
The new regulations have received support from several due process advocacy groups including the Foundation for Individual Rights Education, a non-profit, nonpartisan organization for the due-process protections the regulations afford to those accused of misconduct.
“We have been largely supportive of due process protections for students regardless of the context,” said FIRE legislative counsel Tyler Coward. “We think that, anytime a student faces a serious accusation that could result in a lengthy suspension or expulsion, there ought to be robust due-process protections to ensure that people aren’t being removed from the school that they’ve been enrolled in.”
Coward supported the advisor-led live hearing/live cross-examination model, saying it would bolster the rights of both victims and alleged perpetrators in proceedings.
“That is consistent with long standing American jurisprudence,” Coward said. “… Many of these instances in the Title IX contexts arise behind closed doors and the only two people that know what happened are oftentimes the only two people in the room. And so when those credibility, issues are at stake, that’s when these these cross examination rights are particularly important.”
What this could mean for the University
The University already has set guidelines on responding to sexual violence and officials are working to align with the new regulations.
Currently, the University uses the “preponderance of evidence” standard when determining whether the Sexual Harassment, Sexual Assault, Stalking and Relationship Violence administrative policy has been violated.
The new federal changes allow universities to choose between using this standard or the more rigorous “clear and convincing” standard as a burden of proof, though they must use either standard consistently for all complaints.
According to the University policy, current reporting obligations require prompt reporting when prohibited conduct by a University member occurs “during University employment or education program or activity,” and applies regardless of whether the conduct was directed at a student or employee. The new guidelines have made obligations unclear.
“There are lots of changes that have essentially reduced the obligation of the university to respond to reports of sexual misconduct,” said Ralph, who has also served as a Title IX coordinator. “This has kind of muddied the waters in terms of what’s required in a higher education setting now.”
The University of Minnesota Board of Regents’ “prohibited conduct” policy already includes rules regarding sexual harassment, assault, relationship violence and stalking.
According to Association of American Universities survey data released late last year, nearly one-fifth of University student respondents experienced harassment or behavior or comments that negatively impacted the respondent’s daily functioning. More than one-third experienced “harassing behavior,” or behavior that did not disrupt the respondent’s daily life.
On May 6, AAU President Mary Sue Coleman urged the Department of Education to delay implementation of the regulations until the COVID-19 crisis had passed in a press release.
The University’s Title IX coordinator and director of the Office of Equal Opportunity and Affirmative Action Tina Marisam said that officials are evaluating possible changes and plan to broadly consult with the University community in implementing them.
“We aim to implement the new regulations in ways that promote fairness, transparency and effectiveness in our sexual misconduct response processes,” said Marisam in a statement to the Minnesota Daily.
The deadline for colleges and universities to implement necessary changes is Aug. 14.