Pulling Back on Title IX Enforcement

ATLANTA -- (Note: This article has been updated from a previous version to correct references to the responsibility of individual campuses to adjudicate sexual assault allegations.) Several months ago, activists stormed Georgia’s statehouse in a fierce campaign against legislation that would have required college officials to forward reports of sexual assault to police and limited colleges’ powers to investigate assaults.

The measure -- which seemingly conflicted with Obama-era federal guidance on colleges’ handling of those cases -- was halted. But Tuesday morning the state higher education board here approved new sexual-misconduct policies that many advocates for students who have been raped or assaulted say would make it more difficult for survivors to get justice on their own campuses.

The new rules give the University System of Georgia’s central office much greater oversight, removing some responsibility from campuses. In many instances, the new rules changes the responsibility of individual colleges in investigating allegations of campus rape.

Some of those advocates who fought so deeply to derail the mandatory law enforcement-reporting bill suspect that the Board of Regents and others in the university system have been influenced by the same state lawmaker who introduced that legislation.

Representative Earl Ehrhart is a powerful and outspoken Republican. As an appropriations subcommittee chairman, he has considerable control over spending on public higher education. He has also expressed disdain for the 2011 Dear Colleague letter from the Obama administration that pushed colleges toward tougher enforcement of Title IX of the Education Amendments of 1972. Ehrhart believes that directive to be federal overreach and has gone so far as to sue the Education Department over it.

Ehrhart has shared his views with Education Secretary Betsy DeVos, and he is a proponent of the narrative that false accusations are rampant on college campuses.

Georgia’s board first approved a systemwide policy last year, with an eye toward tweaking it as needed. With the Tuesday vote, the board has split the sexual-misconduct policy in two, one part containing the definitions and processes for reporting sexual assault, the other moved to the system’s existing policy for student disciplinary proceedings.

All student violations, including rape, will now be judged through the same procedures, lending a sense of consistency, Kimberly Ballard-Washington, an associate vice chancellor who led the policy rewrites, said during the meeting. Prior policy gave the campuses discretion on how they responded.

Ballard-Washington's office will field all complaints of sexual violence on campuses if a student could be suspended or expelled, and talk with respective colleges to determine how it should assist in the investigation of a case. Two new investigators will also be hired to work across the system of more than 300,000 students. Adjudication of cases will continue to be handled at the campus level.

Lacking in the policies is a specific time frame, though the Obama-era guidance specifies that investigations should span no more than 60 days. Ballard-Washington said that the system wanted to do these complex investigations "right" even if it contradicts that part of the guidance.

The policies will be rolled out over the next two weeks as the system's 28 institutions begin their fall semesters, which Lisa Anderson, a lawyer and executive director of Atlanta Women for Equality, a legal nonprofit dedicated to advocating for women facing sex discrimination, called a scarily short timeline. Research shows that sexual assaults are more likely to occur early in the fall semester, a time experts call the "red zone."

Proposed language in the policies shifted constantly in recent months, with suggestions pouring in from system employees at every level, documents obtained in a state public-records request show.

A system representative also created “talking points” for the new policies that reference Ehrhart’s bill -- House Bill 51 -- the documents show.

“Primary goal of HB 51 was consistency of treatment for all ‘felony’-level cases. New policy accomplishes that goal. It establishes increased oversight of investigations by the system office and provides a consistent approach for handling all conduct and sexual-misconduct matters through the same procedures. Campus officials will steer away from any semblance of a criminal proceeding,” the document reads.

“The current direction is to treat the sexual-misconduct cases in a manner similar to pre-2011 -- allowing the campus to address misconduct issues and protect the parties and address any possible dangers to campus.”

Ballard-Washington, who presented to the regents, did not touch on these themes, though other parts of her remarks mimicked the talking points.

A spokesman for the Georgia system, Charlie Sutlive, did not allow Ballard-Washington in an interview to address the system’s opinions on the 2011 Dear Colleague letter.

But in a separate interview, C. Thomas Hopkins Jr., chair of the board, said issues materialized soon after the guidance was released, and that the Dear Colleague letter “went beyond what was necessary” to eliminate sexual assault.

“Due process is the bottom line,” Hopkins said. “There’s a lot of things happening on college campuses. How they’re seen by the accuser and the accused, well, there has to be some way to figure out what really went on.”

Nothing in the policy adjustments is specifically linked to Ehrhart’s legislation, said Tricia Chastain, the executive vice chancellor of administration. Conversations during this year’s legislative session did prompt officials to examine whether the quality of investigations could be improved, she said.

Ballard-Washington also was cut off by Sutlive when a reporter asked about Ehrhart’s involvement with university affairs; Sutlive said Chastain’s comments sufficed.

Hopkins called Ehrhart an “excellent legislator” who is heavily involved in higher education. The regents respect his opinion, and his suggestions over all are appropriate, he said.

In an interview, Ehrhart maintained that he has been contacted by swarms of families of the falsely accused, all of whom sought his assistance and reforms. He said he believes he has reviewed at least 50 Georgia cases, with the records provided to him to by students and their parents. He refers to the campus adjudication process by a common insult among those critical of it: "kangaroo courts." His critics say he is undercutting the rights of rape victims and defending rapists.

As an answer to his critics, Ehrhart said he is simply doing his job, and should they take issue, they should run for office.

“It’s fascinating on my side of the street. It involves some conspiracy, some deep dark thing, but on their side, it’s responsible advocacy. Like for me it’s some Kafkaesque thing -- that’s absurd,” he said.

Ehrhart said he contacted the regents twice about the policy, mostly to advocate for education around sexual assault prevention for students.

In April Ehrhart, along with the Georgia system chancellor, met with DeVos. Ehrhart said he discussed due-process rights with the secretary, his chief concern.

Ehrhart’s meeting with DeVos worried some Georgia students, specifically those who had clashed with him over his bill. Now he had a line to share his views with a powerful federal figure, they said.

Ballard-Washington could not clarify when, if at all, the drafts were formally introduced to the public prior to Tuesday’s regents’ meeting. She said that campus officials had seen and collaborated on the policies, with the earliest conversations happening last winter.

A version dated early July did leak to news media, but a request by Inside Higher Ed to view the newest iteration prior to the meeting was denied. Even when the Board of Regents’ agenda was initially posted after Friday, at first it did not include the potential policies.

Matthew Wolfsen, a fifth-year Georgia Institute of Technology student who works on sexual assault prevention for the student government there, followed the formal requirements, a request in writing, to speak about the policy at Tuesday’s meeting, but was turned down. Ballard-Washington, who sent him the email with the denial, said that decision fell to the chancellor and regent chairman.

Still, advocates were not deterred, filing records requests for the drafts and detailing their thoughts to the regents about why the policies fell out of step with the federal Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act.

Some definitions in the new policy did not match those in the Clery Act, for instance, as pointed out by S. Daniel Carter, president of Safety Advisors for Educational Campuses, but many were altered prior to the regents' vote. The definition of dating violence, for instance, lacked criteria for determining the existence of a romantic or intimate relationship, per Clery.

Asked by a regent if the policies complied with Title IX, Ballad-Washington said emphatically, "Yes."

Grace Starling, a law student and activist who led the fight against Ehrhart, said in a recent interview she was concerned about possible Clery violations because of the steep fines, the ceiling being nearly $55,000. She said the idea of a systemwide director to handle complex Title IX cases was not a poor one, but that the person in that job needs a degree of independence Starling wasn’t positive they would receive.

“I’m pretty appalled at the administration of Georgia schools right now. They’re failing [students] and afraid of having their jobs threatened rather than doing their jobs,” Starling said.