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Title IX: Take action before Jan. 30th

January 14, 2019
Story by Andy MacCracken

In November, U.S. Secretary of Education Betsy DeVos formally proposed new Title IX regulations. The rules would overhaul how institutions handle incidents of campus sexual assault and other forms of sexual misconduct. The public can comment on the proposed rules until January 28, 2019.

Key Issues

The proposed rules would change institution’s responsibilities to respond to some cases of sexual assault and fairly significantly change how hearings are conducted. Below is a very brief overview of the top three issues we found in the proposed rules for you to consider as you determine what is best for your campus.

 

Standard of Evidence

On face value, the proposed rules would allow institutions to choose between “preponderance of the evidence” and “clear and convincing” standards. However, the institution would have to use the standard uniform across (1) all student disciplinary proceedings or (2) all proceedings related to sexual misconduct, including those involving faculty.

What would change: This has been perhaps the most controversial issue related to federal campus sexual assault policies for nearly a decade. In 2011, the Obama Administration released guidance that made “preponderance of evidence” the standard for all institutions.

  1. Preponderance is often referred to as the “more likely than not” standard, meaning adjudicators must be convinced that the allegations are least 50% likely to be true. It’s the standard most commonly used in civil proceedings.
  2. Clear and convincing is a higher burden of proof, also known as the 75% standard.
  3. Beyond a reasonable doubt is used in criminal cases, and is the 100% standard.

Our analysis: The effect of the rule as written would likely force most institutions to adopt “clear and convincing” as the standard.

 

Cross-examination 

The proposed rules would require institutions to provide a “live hearing.” If a school allows cross-examination, it must be done through an “advisor,” basically someone representing them like an attorney. If one party chooses to have an advisor, the other party is required to have one. If they do not choose their own, the school must provide one.

What would change: Schools may currently allow cross-examination, conducted through an intermediary. The proposed rule would create more of a court-like system with more robust cross-examination while bringing in advisors that function similar to attorneys.

Our analysis: This change would force colleges to act more like criminal courtrooms and introduces an intensified adversarial environment with the addition of “advisors.”

 

Off-campus incidents 

The proposed rule would heavily narrow institutions’ responsibility to only handle incidents that relate to an “education program or activity” that the institution has substantial control over. This effectively means institutions can elect not to respond to off-campus incidents.

What would change: This area of Title IX has been somewhat ambiguous in the past, but institutions were generally considered responsible to address any incidents that affect an enrolled student, regardless of where the incident occurred.

Our analysis: While institutions would still be allowed to respond to off-campus incidents, those that chose to limit their responsibility will abandon a significant proportion of incidents that affect students.

To learn more about these and other concerns, check out this analysis from the National Women’s Law Center.

 

Action

The comment period is a unique opportunity to directly weigh in on this critical issue on behalf of your student body. Here’s a list of actions you can take to participate:

Draft and submit a comment: The U.S. Department of Education must respond to all unique, substantive comments. You can write a good comment by detailing what has worked well in addressing campus sexual assault on your campus, especially if you have stories or insight into how the proposed rules might affect students on your campus.

Host a comment-writing event: We’ve heard of campuses around the country hosting events to help students write and submit comments together. For access to a toolkit about this, contact Julia Paris (Stanford University) at jgparis@stanford.edu

Write to elected officials: Even though this rulemaking process will run through the Education Department, the proposed rules have generated a lot of interest among Members of Congress. Be sure to share your ideas and concerns with them, as Congress will play a critical role in future Title IX policies.

Join a joint SGA letter: SGA presidents are working on a joint letter addressing the proposed rules. If you’d like to get involved, contact Jordan Baker (NCLC) at jordan@campusleaders.org

 

About notice-and-comment

Notice-and-comment is an official process for establishing or amending federal regulations. Executive agencies may often use guidance to inform the public how they intend to implement a law passed by Congress, however that guidance is not legally binding unless it goes through a full rulemaking process. Under notice-and-comment, the agency proposes a rule and allows the public to provide comments and feedback. The agency must then consider that input before releasing the final version of the rule. If the agency fails to respond to unique and substantive comments or does not sufficiently justify what it includes in the final rule, the rule is exposed to legal challenge.

© 2019 National Campus Leadership Council

© 2019 National Campus Leadership Council

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