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The Department of Education released a proposed Title IX rule last month to enforce guidelines for campus sexual assault cases. The DOE press release announcing the rule can be found here (there are summaries available at the bottom of the release), and the proposed rule is here.

According to the Department of Education the proposed regulations would: 

• Define the conduct constituting sexual harassment for Title IX purposes; 
• Specify the conditions that activate a recipient’s obligation to respond to allegations of sexual harassment and impose a general standard for the sufficiency of a recipient’s response; 
• Specify situations that require a recipient to initiate its grievance procedures; and 

Establish procedural safeguards that must be incorporated into a recipient’s grievance procedures to ensure a fair and reliable factual determination when a recipient investigates and adjudicates a sexual harassment complaint. 

As it relates to the SSMS, the biggest potential impacts will be:

The standard of evidence. We currently use the preponderance of evidence standard for all student misconduct cases, including student sexual misconduct. The new rule allows individual campuses to decide between the preponderance of evidence standard and the clear and convincing standard, however, the rule specifies that whatever standard is chosen must be consistent for all misconduct issues for students, staff and faculty. The faculty tenure code, which is owned by the Board of Regents, uses the clear and convincing standard for misconduct cases. If the rule is adopted in its current form, the institution would need to pick one of the two standards of evidence, and implement policies to be consistent for all misconduct matters. This may affect the SSMS procedures as they are written.

Cross-examination of parties. The language in the proposed rule requires that both the respondent and the complainant be available for cross-examination, and that the University must provide advocate services "aligned with [each] party" to facilitate the cross-examination. This does not directly affect the SSMS procedures, however, it will likely require the institution to consider opening Student Advocate Services (SAS) to provide advocate services to both parties.
An additional note on cross-examination - the proposed rule seems to say that any witness that provides a statement during the EOAA investigation would also have to be available for cross-examination at the hearing, or their statements during the investigation will be removed from the exhibit materials. If the rule is adopted as written, this will certainly require some work as the investigative report does not always separate the statements of each individual, and obviously a case is built on each individual statement.

Definition of sexual harassment. The rule proposes a new definition for sexual harassment, and the language sets a higher threshold for what can be considered (or what the University would be required to respond to). Particularly, it says that sexual harassment must be “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” This new language may exclude one-time, severe instances of sexual harassment. It also raises the question about what the threshold is for a student’s inability to have access to their education program or activity. For example, if a student stays enrolled in school following the incident, does that mean that they still have equal access? The rule clarifies in multiple places that this definition seeks to include only sex-based discrimination that is sufficiently serious as to effectively deprive a student of equal access to a funding recipient’s educational program or activity, not all sex-based discrimination.
 
Jurisdiction for investigations. The new rule requires Universities to respond to conduct that occurs within an “education program or activity,” which appears to say that incidents that happen off-campus may not fall within the institution’s jurisdiction. However, from conversations with Tina Marisam, it sounds like Universities can decide to investigate allegations of misconduct off-campus (however, they must be within the U.S.). This could impact the number of cases that SSMS hears, given that many of the allegations happen in housing off-campus.

Exhibits. The new rule requires that EOAA provide both parties with all evidence that was gathered in the investigation, and allow both sides 10 days to review and respond to the evidence and the investigative report. This may have an impact on the number or type of exhibits that we see at the hearing stage.

Presumption of non-responsibility. EOAA’s current practice is to begin investigations with no presumption, however, the new rule would require investigators to notify both parties at the start of the investigation that the University is presuming no responsibility.

Informal resolutions. Previous guidance from the Obama administration discouraged informal resolutions, such as mediation. However, the new rule, if enacted, would allow for informal processes.

At this stage, institutions are still gathering information, so there will likely be more information to come. There are other proposed changes in addition to this list, but at this point, these are the changes that we have identified that could impact the work of the SSMS. 

The 60-day comment period is currently open, and it will close on January 28, 2019. The DOE has already recieved over 45,000 comments on the proposal. At this point, the institution does not plan to comment as a whole, however, some offices or coalitions are considering commenting. Anyone interested can comment individually. SSMS could also comment as a group, if that was of interest to anyone.

Comments can be submitted here.
 

rape myths.

Remember: The complainant and the respondent have the right to a fair hearing, and a panel decision based on reliable evidence presented during the hearing; including reasonable judgements drawn from the evidence presented, and reasonable determinations by the panel as to the credibility of witness testimony.

                                              

Bias is inherent in all of us. We make assumptions, harbor stereotypes, miss our blidspots, and view the world through our own lens. We are informed by our own experiences, or our ladders of inference. In misconduct work, it is imperative that you are willing and able to recognize these biases and separate them from your decision-making in SSMS cases.

Some potential cultural biases to be aware of:

• National origin
• Regional culture
• Culture of gender/sex/sexuality
• Culture of race/ethnicity
• Disability culture, D/deaf culture
• Culture of a faith tradition
• Culture of an institution
• Culture of a profession (e.g. Title IX, higher education...)

Tips for identifying your own biases:

• Consciously acknowledge differences.
• Routinely check thought processes and decisions for possible bias(es).
• Identify sources of stress and reduce them in the decision-making environment.
• Identify sources of ambiguity and impose greater structure in the decision-making context.
• Institute feedback mechanisms.
• Increase exposure to more diverse and stereotyped/marginalized groups.

                            

There is no better time to talk about affirmative consent than when new students are moving onto campus. Research has shown that undergraduate students are at the highest risk for campus sexual assault in their first college semester. Advocacy groups call this period the “red zone.” Incoming freshman learn about affirmative consent at orientation, and the University of Minnesota defines affirmative consent in the administrative policy on Sexual Harasment, Sexual Assault, Stalking and Relationship Violence. 

This is a policy that you will likely be examining as an SSMS panel member. For a refresher on Evaluating Affirmative Consent and Incapacitation, watch this video:

The video slides are available here:

pdf-_affirmative_consent_incapacitation.pdf

A process chart that breaks down the elements of the University’s affirmative consent policy can be found in your panelist handbook, or here.

 

Sincerely,

 

Kevin Dostal Dauer, co-chair

Lynetter Renner, co-chair

Bobbie Erichsen, secretary