GRAND FORKS — Sweeping changes to how sexual misconduct allegations are handled on college campuses across the country could have a major effect on small schools and may cause fewer students to report incidents, higher education leaders from the region say.
The new rules, announced in May, come after years of research and input from survivors, advocates, falsely accused students, school administrators, Title IX coordinators and the public, including more than 124,000 public comments, according to federal education officials.
But now comes the implementation process.
All colleges and universities will now be required to hold live hearings and allow cross examination when dealing with sexual misconduct complaints. While some local schools, including the University of North Dakota, already have been conducting some form of a live hearing for some cases, the new regulations allow for attorneys to be in the mix for all Title IX cases.
University of Minnesota Crookston Vice Chancellor John Hoffman said the introduction of lawyers into the process for all campuses and the “litigious nature of the new policy” will have a “chilling effect on students who experience harm.”
“Colleges are not courts of law,” Hoffman said. “We do not have court-like capacities for imposing sanctions on an individual's life. (The sanctions) are limited to the educational experience.”
Cross-examination of both the complaining and responding parties, as well as any witnesses, will be conducted by advisers for parties, including legal counsel, but not the parties themselves. If a party or witness does not submit to cross examination at the hearing, none of the statements that they make, or may have made during the investigative process, can be considered by the decision-maker in the room, said Donna Smith, Title IX coordinator for UND.
The new regulations also will narrow the scope of complaints that colleges are required to investigate. Institutions are only required to respond to complaints of sexual harassment that are “so severe, pervasive and objectively offensive that it effectively denies a person equal access to education.”
Title IX was passed in 1972 to safeguard against gender discrimination within federally funded institutions. Mostly, it gained prominence for its role in creating equality for women athletes and sports programs, but it also includes various protections against gender discrimination outside of athletics.
The recently adopted rules only apply to conduct that happens within the program or university-sponsored activities and within the U.S. However, universities can still develop processes to deal with conduct that occurs outside the country and at non-university-sponsored events.
The changes aren’t all bad, though, leaders say.
Hoffman said the policy establishes a “clear, bright line” between individuals who are supporting students through the process and those that make decisions about whether a violation occurred. It also outlines the steps universities must take to deal with the complaints.
The new rules, federal leaders say, are meant to provide a fair process for all students involved in sexual misconduct allegations, including those accused.
Kenneth Marcus, of the Office for Civil Rights, called the new changes a “game-changer.”
“It marks the end of the false dichotomy of either protecting survivors, while ignoring due process, or protecting the accused, while disregarding sexual misconduct,” he said in a statement. “There is no reason why educators cannot protect all of their students — and under this regulation there will be no excuses for failing to do so.”
A short timeline
Hoffman expressed disappointment with the U.S. Department of Education for not only vastly changing Title IX, but also the timing of the changes.
Campuses have until Aug. 14 to put the changes into place, a short timeline for many institutions that are already dealing with the implications of the COVID-19 pandemic, Hoffman noted.
It’s a tough lift, especially for smaller campuses with fewer resources, Mayville State President Brian Van Horn said.
“This is occurring at the same time when we're measuring classrooms to see where a student can sit. It's occurring at the same time that we're trying to ensure the safety of our faculty, staff and students to get classes open in the fall,” he said. “It's just a lot in a quick time for small campuses, or any campus for that matter.”
Typically these types of changes take more than six months to a year to fully implement. Eric Olson, attorney for the North Dakota State Board of Higher Education, said the accelerated nature of the changes may be because campuses have been aware of the proposed changes for more than a year and because of the looming presidential election this fall.
Olson said there have been at least four lawsuits filed against the changes; whether those lawsuits slow down the implementation process remains to be seen.
University leaders across the region and the country are struggling to quickly put together policies to match the new federal regulations. For many schools, that work may come at a cost.
Most smaller universities, like Mayville State and Crookston, don’t have large staffs dedicated to Title IX issues, and with the introduction of potential new roles as a result of the new regulations, many schools will be faced with hiring new staff and conducting new training, said Andrew Pflipsen, vice president for student affairs and Title IX coordinator for Mayville State.
Resources are already tight for universities as they face COVID-19 and potentially looming budget issues in the coming months, Van Horn said.
There has been some discussion about schools within the North Dakota University System sharing resources where possible or even potentially using administrative judges to carry out the live hearings, but all of that will likely come with a cost, too, Pflipsen said.
“There are times where it may be difficult to find an impartial investigator because we're small,” Pflipsen said. “Everybody knows everybody, most students know our faculty, know our staff or have some sort of connection to our staff. So it would be advantageous for us to explore shared services with another institution just for that. Now, with those shared services, of course, usually comes a little bit of dollar amount.”
Hoffman said he’s grateful to have the University of Minnesota system available to share resources and information. The system’s board of regents is working on finalizing its policies.
“For a small campus to be able to tap into major resources like we have within the University of Minnesota is a real blessing,” Hoffman said.
Effect on reporting
But in addition to the monetary costs to implement the new rules, the changes could come with another cost: reporting.
While universities like Mayville and Crookston typically only deal with a couple of formal Title IX reports a year, schools like UND and North Dakota State can average about 10 or more each academic year. Those are cases where formal Title IX proceedings are initiated; many complaints are dealt with at a lower level with resources provided to the parties involved.
Smith said she does have concerns that the changes could impact the number of people who report allegations of sexual misconduct.
“I'm concerned that we may have people who don't report it because they understand what the hearing will look like,” Smith said. “They may decide ‘I just don't want to do that. I don't want to put myself through that. I don't want to participate in that.' ”
Additionally, there has been nationwide concern that the live hearing and cross examination process could retraumatize victims.
While overall the changes won’t be huge for UND, Smith said UND will have an expanded role for informal resolution and supportive services for students who may not want to go through the formal live hearing process, which is already provided. Those services can include housing and academic changes or referrals for counseling.
Throughout his career in higher ed, Hoffman said he has worked with “far too many” students who have been hurt by sex/gender discrimination. Hoffman worries these new changes will have an effect on the number of students who report sexual misconduct incidents.
“These are very difficult and can be life-altering situations for students,” Hoffman said. “I think the threat of the involvement of lawyers and ... lowered protections against retaliation when students bring a complaint forward, I would anticipate that many students will instead of bringing forth a complaint that we'll simply look to resources to heal.”
Hoffman said many Title IX cases are relatively minor, noting only the major allegations often get reported in the media. But dealing with those lower-level cases can offer a form of healing and learning for students “about what it means to live in community and what healthy relationships look like.”
“I fear that we will lose out on a number of those opportunities, which are just so important for young adults,” Hoffman said.