Deadline Time for New Federal Sexual Assault Policies

The regulations for responding to campus sexual misconduct complaints go into effect today. Some colleges are implementing them along with their own guidelines to protect sexual assault victims.

August 14, 2020
 

College officials across the country have been debuting plans over the past week to abide by new federal rules for responding to complaints of sexual misconduct on campus. The rules go into effect today as many colleges are preparing for the start of the fall semester or have already begun the new academic year.

Some of the plans have been condemned by advocates for survivors of sexual assault, who say they were excluded from the process of drafting new policies under Title IX of the Education Amendments of 1972, the law prohibiting sex discrimination at federally funded institutions. Students also fear colleges will implement policies that closely align with the regulations, which have been widely criticized by survivors for not requiring colleges to respond to sexual harassment and assault that occurs off-campus, among other limitations.

Students at the University of Cincinnati who are part of the campus advocacy group Students for Survivors, or SFS, have criticized university administrators for not allowing input from the organization on the university's policy changes. Grace Cunningham, a 2018 alumna and founder of SFS, said the group is concerned the university will use the federal regulations "as an opportunity to limit responsibility rather than uphold survivors' rights." Cunningham also noted that Cincinnati has a history of not taking survivors' concerns seriously.

She said the new regulations "fail to address the inherent trauma, regardless of where the trauma occurs and who it's perpetrated by."

In 2015, Cunningham reported that a former Cincinnati student raped her off campus. She noted that similar reports of sexual assaults would not be addressed under the new rules. (Cunningham said the university declined to pursue her complaint because her alleged assailant was no longer a student when she reported the assault.)

In a June 1 letter from SFS to Cincinnati President Neville Pinto, students underscored the "devastating consequences" that implementing the new regulations would have on victims of sexual assault. The group also outlined demands for any changes to Title IX policy, including that university officials use what's known as the "preponderance of the evidence" standard for determining whether sexual misconduct occurred and keep a general 60-day limit for officials to fully investigate and close complaints. These two measures are allowed, but not required, by the new regulations, according to a summary of the changes.

"Multiple sections within the rule give schools discretion to choose how policies are implemented," the letter said. "We urge the University of Cincinnati to commit to taking sexual violence seriously by choosing the options that would create the least harm for student survivors."

In order to offset what some critics consider the limitations of the new regulations, many colleges are also implementing a parallel policy to accompany the federal regulations.

The new regulations explicitly state that nothing prohibits colleges from addressing sexual misconduct that occurs outside "an education program or activity" with the same process used for misconduct that occurs on campus or in college programs, although it's not "required," according to the regulation document published May 6 by the U.S. Department of Education.

Princeton University, for example, will implement both a "Title IX Sexual Harassment policy" and "University Sexual Misconduct policy," which are "inter-related and must be read together," a recently updated university webpage said. The university's policy will address "conduct falling outside the jurisdiction/scope of the federal Title IX regulations," according to an Aug. 3 release about the new procedures. The dual policies ensure "compliance with federal law while best fulfilling our commitments to safety, wellbeing and fairness," Michele Minter, Princeton's sexual misconduct/Title IX coordinator, said in the release.

Michael Hotchkiss, deputy university spokesperson, said Princeton students, faculty members and staff were allowed to submit written comments on the policy changes throughout June and July, and some who "self-identified as having experienced sexual misconduct" did so.

"We believe that several aspects of the new policies are responsive to the issues raised by students," Hotchkiss said in an email. "We were committed to ensuring that conduct that previously constituted a violation of university policy would continue to constitute a violation of university policy under the new policies."

Jake Sapp, a Title IX legal researcher for the Stetson University Center for Excellence in Higher Education Law and Policy, said Princeton's setup is "not unique to them." Sapp, along with Peter Lake, director of the center and NASPA: Student Affairs Administrators in Higher Education, is helping to lead a virtual Title IX certificate program that trains college administrators to implement and carry out the new federal procedures. Many of the program's first 100 participants were interested in and had questions about creating these "dual" processes, Sapp said.

Some sexual harassment complaints must be dismissed under the new regulations if they don't meet certain criteria, but "the department doesn't have the authority to say what we can't cover under our policies," said Sapp, who is also deputy Title IX coordinator at Austin College in Sherman, Tx. But Title IX administrators will have to be "very careful" to use the appropriate process for each formal complaint of sexual misconduct, first ensuring there is a preliminary investigation of whether a complaint should be handled with one process or the other, Sapp said.

"Both processes, no matter where you are in the country, need to be incorporating equitable treatment of all parties," Sapp said. "In the Title IX hearing, that's spelled out … Your non-Title IX process can't be something that is going to railroad complainants or respondents."

Any "parallel" or "dual" process for adjudicating complaints of sexual misconduct outside of Title IX must also follow state law or legal precedent set by federal appeals courts, Sapp said. For example, Princeton, which is located in New Jersey, is subject to a May 29 ruling by a judge in the U.S. Court of Appeals for the Third Circuit that said students must be given the opportunity to participate in "some form of cross-examination and a live, adversarial hearing," even at private institutions, where constitutional due process is not guaranteed. As a result, both Princeton's Title IX and non-Title IX policy are required to include a live hearing and cross-examination, Sapp said.

Smaller colleges will face more obstacles creating and carrying out a dual process due to a lack of financial and staffing resources. Some colleges were already challenged by having to implement just the Department of Education's regulations. The institutions were given about three months to make the changes at the same time they were dealing with the coronavirus pandemic and preparing for the fall semester, which also put enormous strain on staff members.

Alison Dougherty, Title IX coordinator at Widener University in Chester, Pa., said that while "on paper" the university will comply with the new regulations by Aug. 14, staff members who will be involved in responding to complaints of sexual misconduct still need to be trained on the new federal guidelines. Creation of any type of dual policy that falls outside of the scope of Title IX will have to be "after the fact conversations," Dougherty said.

"Most of the people doing this work genuinely care about, one, that we're following the law but two, that we have a process that cares for everyone involved," Dougherty said. "Really, now we're put in a situation where we're making sure the language and the policy is correct, and operationalizing it is going to take some more time … I know that many institutions are in the same boat, and I wish the Department [of Education] would've thought through that."

An effort by 18 attorneys general to delay the implementation of the regulations was denied on Aug. 12 by a District of Columbia judge who said the attorneys general did not prove "they are likely to suffer substantial irreparable harm pending further litigation" against the regulations. Education Secretary Betsy DeVos praised the judge's decision this week in a department press release.

"With yet another failed attempt to block our historic Title IX Rule, we can now look forward to it taking effect this Friday, requiring schools to act in meaningful ways to support survivors of sexual misconduct without sacrificing important safeguards to protect free speech and provide all students with a transparent, reliable process," DeVos said in a statement.

Some smaller, independent colleges in the Philadelphia area, including Widener, Ursinus College, Bryn Mawr College, University of the Sciences and La Salle University and others, are creating a consortium to pool Title IX resources and knowledge and help their peer institutions make the necessary policy and procedure changes, Dougherty said. The group has discussed co-hiring advisers for students involved in a Title IX process or investigators from companies that provide trained professionals. They're also considering having Title IX administrators at one college serve as an adviser for another college, she said.

"It's great to see how we can pull together and collaborate," Dougherty said. "There are certainly companies and places you can purchase resources, but there's a benefit in meeting with people in your area and talking about how you are releasing and announcing the resources, sharing training materials and other resources."

However, the fact that some colleges do not have such dual policy processes in place is concerning to survivors. Cunningham, the University of Cincinnati graduate, noted that such policies should ideally be in place by the first weeks of the fall semester, which is a known time for a spike in sexual assault on campus, called the " red zone."

At Stanford University, students who are involved in the Associated Students of Stanford University's Committee on Sexual Violence Prevention and Survivor Support said it is troubling that the university has only released a draft of its policy that abides by the new Title IX regulations, and not a parallel process for sexual misconduct that may occur off campus.

Emma Tsurkov, a PhD candidate at Stanford and a graduate of its law school, said while other colleges released both policies at the same time, Stanford's failure to do so is concerning.

"There's ambiguity about what will happen with all the cases that fall outside of the current umbrella of Title IX," said Tsurkov, who is an affiliate member of the group. "We don't have a clear timeline on when that will happen."

Stanford announced on Aug. 13 that it would not be opening its residence halls during the fall quarter and that nearly all undergraduate instruction would be online, but Maia Brockbank, a rising senior and co-director of the ASSU Committee on Sexual Violence Prevention and Survivor Support said she and many other students will still be living together in off-campus housing, which means there will still "be a common place where assaults will continue to happen."

The student committee had been working for months with administrators and faculty members on how Stanford should address changes to its Title IX policy, but students in the group have said thus far, most of their recommendations have not been addressed in the draft policy. A petition was circulated after the draft was published on Aug. 4, calling on Stanford to change several aspects of the policy, including a provision that says the university will "seek" to complete a Title IX hearing within 120 days, a timeline they say is much too long.

"Adding on to the already dangerous provisions required by DeVos's regulations, this draft policy went beyond what was required by DeVos's new regulations, choosing to create a hostile environment for survivors, preventing accountability for perpetrators of sexual violence," said the petition, which was signed by about 1,320 students as of Aug. 13.

Dee Mostofi, assistant vice president for university media relations, said in an email that Stanford is in the "final changes of reviewing comments" and has made changes to the draft policy as of Aug. 13. The university will respond to the feedback it received on the draft next week, and some of the university's previous procedures for addressing sexual misconduct will remain in place, Mostofi wrote.

"We will continue to address sexual misconduct that falls outside of Title IX based on a trauma-informed approach, public health principles, and restorative justice practices," Mostofi wrote. "We have welcomed and encouraged student feedback throughout the past several months on issues related to the new policy."

Cunningham said University of Cincinnati students have received no such assurances. Neither university spokespersons nor officials in the Equity, Inclusion and Community Impact office responded to requests for comment. Cunningham said student survivors hope Cincinnati will decide to go beyond the legal requirements set up by the new regulations.

"They will be doing a disservice if they don't create this option," she said. "It leaves a lot of uncertainty for students going back to campus on top of the uncertainty of the pandemic."

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