By Dan Flahive
The University intends to provide students involved in Title IX cases with all the support and options possible, regardless of proposed changes to federal guidelines, said Kim Dexter, director of equal opportunity, Title IX and ADA compliance at Framingham State.
Betsy DeVos, the United State secretary of education, announced plans to rollback Obama-era guidelines of Title IX on Sept. 7. The re-evaluation comes because of what she sees as a lack of due process offered to students accused of sexual assault.
Title IX is a federal law that states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”
In 2011, the Department of Education (DOE) and the Office of Civil Rights (OCR) set out specific
guidelines regarding sexual assault on campuses in a document known as a “Dear Colleague” letter. Many lawyers and government officials regarded the letter as “victim-friendly,” as it allowed victims of sexual assault to forgo signing a nondisclosure agreement. It also required schools to take immediate action and strive to finish investigations within 60 days.
In her announcement, DeVos also expressed support for sexual assault victims.
“One rape is one too many. One assault is one too many. One aggressive act of harassment is one too many. One person denied due process is one too many,” said DeVos.
“It is our moral obligation to get this right,” she added.
According to DeVos, the previous guidelines were too confusing, to the point that lawyers had trouble interpreting the policy. This then left universities in a difficulty position – having to be both the judge and jury of cases.
“This unraveling of justice is shameful. It’s wholly un-American, and it is anathema to the system of self-governance to which our founders pledged their lives over 240 years ago,” DeVos said. “There must be a better way forward.
“The system established by the prior administration has failed too many students. Survivors, victims of a lack of due process and campus administrators have all told me that the current approach does a disservice to everyone involved,” she said.
DeVos also wanted to ensure that the survivors and victims were still going to be heard, stating, “We will not abandon anyone. We will amplify the voices of survivors who, too often, feel voiceless.”
Dexter said she expects the U.S. DOE to address the issues DeVos laid out soon.
“We know that she has indicated some areas where she has heard concerns expressed, and she has expressed those concerns,” said Dexter. “[DeVos] has highlighted wanting a comment and review period on the recommendations or guidance that is provided by the Department of Education.”
The 2011 Dear Colleague letter, along with other Dear Colleague letters produced by the DOE and the OCR, provides guidelines on how to address sexual-based discrimination and sexual violence for universities that receive federal funding. These guidelines, however, are not “legislated into law,” but are generally accepted to have the effect of law, according to Dexter.
“We know that DeVos would like something a little stricter. We hear a lot about clear and convincing – if I had to guess what might come out in revised guidance, it would be that,” said Dexter.
OCR requires schools to use a preponderance of the evidence, in other words, “more likely than not” standard, as the facts of the case are evaluated. “I, and many others, believe this is a very fair standard. It shows there are two sides that we are considering and we look for where there is the most evidence to support somebody’s account of what has occurred,” said Dexter.
She said she is worried the DOE is going to require students and universities to share information about reports with law enforcement, regardless of the will of the victim. In many cases of sexual assault and rape, the victims feel as though they have lost all control. Title IX offices strive to give the victims that control of their lives back by reviewing their options and giving them the choice to involve law enforcement if they so choose, she added.
“If the procedures and policies don’t support victims and survivors, then the fear is that reporting is going to go down, and our ability to direct people to support is going to decrease,” said Dexter.
FSU approaches training on Title IX and sexual misconduct with a wide lens, trying to educate students, faculty and staff on appropriate behavior, she said. Some of these include training modules for students, bystander intervention training for campus leaders (resident assistants, SGA members, peer mentors), activities in residence halls, bringing partners to campus to raise awareness and social media campaigns.
“We try to attack training at many different angles because different things resonate with different folks. For our students, the overarching training we have is our online Haven program. We know one online course is not necessarily efficient to get the message across. We offer something similar to employees,” said Dexter.
Last year, FSU had about 40 concerns brought to the Title IX office, but only three formal complaints investigated through the student conduct process, according to Dexter. She added these numbers are consistent with national data.
Naomi Shatz, a Boston student rights and Title IX attorney at Zalkind, Duncan, & Bernstein LLP, represents students accused of sexual assault, sexual misconduct and intimate partner violence. Shatz said she does not expect anything to come out of the DOE anytime soon.
She added, “Formal rule-making processes involve putting out notice and getting public comment, and I think that will take time.”
Regarding the Title IX rollbacks, Shatz said there is “a lot still up in the air. ... The question-and-answer document issued a few weeks ago gives some sense in direction, focusing a bit more on certain procedural rights [for the accused].”
The question-and-answer document Shatz referred to, which explains the new expectations for schools to handle Title IX matters until new regulations are passed, was released on Sept. 22 by the DOE, according to the Department’s website. The new document gives schools the choice to use a preponderance of the evidence standard or the clear and convincing standard when finding a verdict.
“One of the big concerns is that the Title IX offices are the judge, jury and executioner, and that is not the recipe for a fair process,” said Shatz. She added she has not heard many concerns from either side abut modifying the way sexual assault cases are handled on college campuses.
Shatz believes the optimal way to handle matters is to revert back to having a hearing process, allowing witnesses to testify for both parties, rather than having one investigation with a single investigator.
“The Department is putting out a mixed bag of improvements for things concerning the public, and now the public can weigh in. People concerned over the matter should take initiative and speak out about the topic,” said Shatz.
Samantha Harris, vice president of policy research for the Foundation for Individual Rights in Education, said it is tough to predict what is going to come out of the DOE in the coming months, but by rescinding the 2011 Dear Colleague letter, the Department has taken a step back “from a period of micromanaging universities’ handling of sexual misconduct claims.
“What we do know, and what is a very positive step in the right direction, is that the Department is going to put any proposed new regulations through a period of notice and comment that will allow all stakeholders – whether they be victims’ advocates, due process advocates, university administrators, or otherwise – to have a voice in the process,” Harris added.
Colby Bruno, senior legal counsel for the Victim Rights Law Center, said, “We really cannot even begin to speculate” what the DOE intends to do in the coming months. “At this point, it does seem like the Department will roll back civil rights at every chance they get.
“I believe that what was previously in place was helpful to all students and that by withdrawing the critical guidances, all students will be harmed.”
Bruno added the DOE has decided to further confuse the issue with another Dear Colleague letter that is in conflict with existing laws and is no help to schools or the students.
Former Vice President Joe Biden released a public service announcement for “It’s On Us,” a national campaign to end sexual assault. “Demand that your school continue to make progress. You know we’ve exposed the brutal reality of sexual assault and now is no time to turn back,” said Biden.
“As long as I have a breath in my body I’m going to fight to change this culture. I won’t stop, and neither should you,” Biden added.
In late August, four female Harvard University law professors wrote an article calling for additional revisions, similar to the reasons laid out by DeVos. The article, “Fairness for all students under Title IX,” argued the 2011 Dear Colleague letter was never “opened for notice and comment period” and therefore should not be recognized as law.
The article goes on to call for those accused to be informed of the complaints made against them. It also suggests providing a hearing for both parties and separating schools’ Title IX officers from the duties of adjudicating and hearing appeals.
Dexter said there is a difference between school investigations and criminal trials. “It’s important to recognize that a campus student conduct process does not serve as or replicate a criminal or civil court proceeding. It is in the interest of institutions of higher education to set behavioral expectations and ethical standards for the members of its community and to monitor and respond to violations of those standards.
“Our campus processes are designed to afford students due process in conduct proceedings. Rights, options and responsibilities are clearly outlined, students are afforded equal opportunities to present information and the staff administering conduct processes receive extensive and comprehensive training in investigating allegations and analyzing findings of fact under the language in the policies,” Dexter said.
Ultimately, the DOE is expected to modify the guidelines laid out in the 2011 Dear Colleague Letter in the following years, and Dexter would like to remind students this will not change the resources available to them.
She said, “What is important is, we know our students are experiencing sexual violence and relationship abuse and we are going to make sure we keep doing the very best that we can to make sure they have support and options, and that is why we will be closely watching what comes out of the Department of Education.”