College Groups Blast DeVos Title IX Proposal

Higher ed lobby says new regulations governing campus handling of sexual misconduct complaints would create a quasi-legal system that would burden colleges and infringe on the rights of students.

January 31, 2019
 
Education Secretary Betsy DeVos

Top higher education groups are lodging major criticisms of new regulations proposed by Education Secretary Betsy DeVos dealing with campuses’ handling of sexual misconduct allegations. The DeVos Title IX rule, those groups say in comments submitted by Wednesday's deadline for feedback on the new rules, would impose a quasi-legal system on colleges that would raise new issues involving fairness, cost and liability for institutions.

Many college officials had welcomed a reset by the Education Department’s Office for Civil Rights under President Trump after years of complaints about overreach by the office under President Obama. And for the past two years, the office has narrowed its approach to overseeing investigations of civil rights violations on campuses.

But college groups say the Title IX sexual misconduct rule released by DeVos late last year would prescribe their responses to complaints at a level of detail never before attempted by the department.

Survivor advocates and other activists have been critical of the secretary's approach to Title IX from the beginning and blasted details of the proposed rule after they leaked last year.

Now the associations representing colleges and universities, which have so far remained quiet, have also come out hard against the new regulations and urged DeVos to make serious changes.

Most organizations submitted detailed feedback only in the last week ahead of Wednesday's deadline. The department will be tasked with reviewing tens of thousands of those submissions before issuing a final rule.

More than 96,000 comments were submitted by the deadline -- many of them from advocacy groups long critical of DeVos. But the position from the higher ed lobby could be especially influential in the shaping of a final rule.

DeVos embarked on the process of writing the rule in 2017 after declaring that previous guidance from the Obama administration had resulted in a failed system for students, particularly those accused of misconduct.

“We need to move to a place where we are educating and ensuring those horrible situations don’t occur,” DeVos said Wednesday. “But when they do, we need to have a process and a framework that is fair for everyone and results that can be counted on by everyone involved.”

The proposed rule she released in November would add new requirements designed to protect the rights of accused students, including a right to a live hearing with the ability to cross-examine accusers -- a major demand for groups that pushed for more protections for accused students.

Language in the proposal also would limit the types of cases colleges would be required to investigate. They would be responsible only for misconduct that occurred within campus programs and only when officials at an institution had received a formal complaint, a significant departure from guidance under the Obama administration.

The rule would also allow colleges to set their own standard of evidence for findings of misconduct -- as long as it is consistent with standards used for other kinds of campus-based misconduct. The Obama administration had recommended colleges use a standard known as "preponderance of evidence," while its critics argued a tougher "clear and convincing" standard was more appropriate for findings of serious misconduct.

Activists have said the rule would weaken protections for victims of sexual assault or harassment. The college groups say that it would also infringe on institutions’ expertise and create new potential liabilities while conflicting with existing state laws.

Ted Mitchell, president of the American Council on Education, wrote in a letter signed by 60 organizations that the rule makes the faulty assumption that colleges are a reasonable substitute for the criminal and civil legal systems.

The rule, Mitchell wrote, “consistently relies on formal legal procedures and concepts, and imports courtroom terminology and procedures, to impose an approach that all schools -- large and small, public and private -- must follow, even if these procedures, concepts, and terms are wildly inappropriate and infeasible in an educational setting.”

The imposition of live hearings for all misconduct cases, ACE argued, would significantly draw out the time to complete investigations. And the requirement for cross-examination would create a “trial” atmosphere that could potentially violate procedural fairness for accused students as well as deterring survivors from pursuing complaints, the group said.

Mitchell wrote that a broad standard requiring that any evidence directly related to alleged misconduct be shared with both parties is impractical, could violate privacy and would lead to litigation. And he said the new hearing systems could lead to a “cottage industry” of student advisers either hired by students or appointed by colleges who would treat misconduct hearings as an adversarial process.

Current federal guidance allows colleges to use multiple models to adjudicate misconduct complaints, including the use of outside investigators who interview both parties and any witnesses before making a recommendation to campus decision makers. That kind of model would be banned under the proposed DeVos rule, but ACE and other college groups urged the department to maintain that flexibility for campuses.

The proposal, said Mary Sue Coleman, president of the Association of American Universities, “subjects universities to an unprecedented amount of federal control when it comes to how to investigate and adjudicate allegations of sexual harassment. This approach stems from a faulty premise: that the entire existing adjudication system has failed students.”

Eloy Oakley, chancellor of the California Community Colleges system, said in a letter to the department that the proposed rule would create new barriers for victims and make campuses less safe.

"Taken together, they will have a significant chilling effect on sexual harassment victims’ ability and willingness to bring forward allegations of sexual harassment," he wrote. 

What Colleges Say the Rule Gets Right

Higher ed groups didn’t entirely pan the proposed rule. ACE praised the proposed removal of a requirement in previous federal guidance that institutions resolve Title IX complaints within 60 days. Colleges rarely complete investigations that quickly anyway, but the higher ed group called the timeline “arbitrary and inflexible.”

And the group said language stating that a college is required to investigate only complaints where it has “actual knowledge” of alleged misconduct would provide more clarity about when institutions are required to act.

Those are major points of disagreements with survivor advocates, who say those changes would slow down resolutions for students and make the campus process more difficult to navigate.

Sage Carson, executive director of Know Your IX, said an investigative process that takes many months to reach a conclusion is detrimental to both survivors and respondents.

“I understand the colleges feeling pressed by the need to wrap things up within 60 days. What is problematic to me is there is no alternative timeline,” she said. “Just removing it altogether is not good for anyone involved in this process.”

And Know Your IX said the “actual knowledge” standard could allow colleges to dodge liability by making the reporting process more burdensome for students. Carson said that oftentimes the first person a student tells about an assault is a teacher, coach or resident assistant. And those officials should take action to report misconduct.

But Carson said it was a positive development to have college groups push back on other major provisions of the proposal.

“The higher education lobby, colleges, students, survivors and their families are all aligned in saying this isn’t appropriate,” she said.

DeVos will need to make major changes to the rule to win over higher ed organizations. But groups that had pushed for more protections for accused students argued the regulation hit the mark in balancing the rights of survivors and respondents.

The Foundation for Individual Rights in Education had pushed for tougher evidentiary standards for misconduct findings and for the inclusion of cross-examination rights. Joe Cohn, FIRE’s legislative and policy director, and Tyler Coward, the group’s legislative counsel, argued in public comments that those changes made the rule a marked improvement over previous federal guidance.

“The proposed rules take the rights of both complainants and accused students seriously, and they make important strides toward ensuring that complaints of sexual misconduct will be neither ignored nor prejudged,” they wrote. “Though not perfect, the proposed regulations will go a long way towards restoring meaningful due process protections to campuses -- to the ultimate benefit of both complainants and respondents alike.”

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