At any other moment, it would be major news: The sweeping new regulations governing campus sexual misconduct take effect on Friday. But as Covid-19 scuttles campus plans and decimates budgets, colleges are grappling with more existential questions — like, will they survive this academic year?
Needless to say, administrators’ attention was elsewhere this summer. That means, on many campuses, they’re scrambling to rewrite policies, make new hires, and train existing staff and faculty members on the rules interpreting Title IX, the gender-equity law. In some cases, the regulations require a complete overhaul of the way colleges investigate sexual assault and punish offenders.
“My impression is, everybody’s trying to write the paper and get it in on time,” said Alison Kiss Dougherty, associate vice president of human resources and Title IX coordinator at Widener University.
Though colleges are trying their best, not every institution will be 100-percent ready for prime time on Friday, experts say. That could be to the detriment of students. While this semester could play out differently due to Covid-19, the first six weeks of the fall are traditionally a time when there’s a higher incidence of sexual misconduct.
Some overwhelmed institutions just started thinking about the regulations a few days ago, said Jody Shipper, a former campus Title IX official who now advises colleges as the managing director for Grand River Solutions, a consulting firm. A handful of the colleges she works with called her last week in a panic, saying they hadn’t revised their policies yet and needed her help.
The new rules, published in May, mark the first time that colleges’ responsibilities to respond to sexual assault and harassment have been spelled out in federal regulations, which have the force of law. In the past, the Education Department has issued guidance documents on campus sexual assault, which are not legally binding.
Colleges had fewer than 100 days to comply with the 2,000 pages of regulations. In May, the American Council on Education called the timing “cruel.”
Education Secretary Betsy DeVos said that she didn’t want to delay their release because sexual-assault cases were being decided even in the midst of the pandemic. “Civil rights really can’t wait,” she said. She also said that, because students have mostly been away from campuses since March, it was “an ideal time” for administrators to overhaul their Title IX policies.
Earlier this week, judges in New York and Washington, D.C., declined to issue an injunction that would have temporarily prevented the rules from taking effect.
The most pressing change for many colleges is the requirement for live hearings with cross examination. In other words, students and employees involved in a sexual-misconduct case will now have the chance, through their “advisers,” to question each other’s version of events and try to poke holes in their narrative. Supporters of required hearings have said that, in cases where expulsion from college is potentially on the line, accused students need more opportunities to defend themselves.
A lot of institutions have never done Title IX hearings before, including many small colleges and community colleges. And while more public universities were already holding them, in order to meet constitutional due-process standards, they’re still having to contend with a tangle of new mandates — and, given the size of their student bodies, higher caseloads.
Some of the staff members who most need training on the new Title IX rules have been furloughed all summer, said Courtney Bullard, a former campus counsel who now advises colleges on Title IX issues. And at small institutions, the one-person general counsel’s office, who usually plays a central role in Title IX matters, is busy grappling with thorny questions about things like contact tracing, Shipper said.
In the past, given staffing and resource challenges, those institutions tended to use a “single-investigator model,” instead of hearings, to resolve Title IX cases; the approach is now banned by the regulations. Under that model, one person investigated and decided whether the accused student or employee violated campus sexual-misconduct policies. Sometimes the investigation and decision were handled by different people, which was supposed to limit any one administrator’s influence over a case.
That’s how it worked at Widener, an institution of 6,500 students. Typically, Widener receives 30 to 40 sexual-misconduct reports per academic year, and five to 10 of them move through the formal investigation process, which will now include a hearing, Dougherty said.
The problem with hearings for Widener and other small colleges is finding enough people to staff them, she said. In addition to a coordinator who handles intake of complaints and an investigator, they’ll now need either a hearing officer who presides over the proceedings or three to five hearing panelists, plus a different person to handle any appeals and advisers for each student or employee involved. If someone doesn’t bring their own adviser, the college must provide one.
The new Title IX rules have stringent limits on people filling multiple roles at once, citing the potential for conflicts of interest.
As the University of New Mexico prepares to hold Title IX hearings for the first time, the institution is hiring a full-time hearing officer and hearing coordinator. It wasn’t easy to make that happen.
“Just like every other institution during the pandemic, we are cutting costs wherever we can,” said Angela Catena, the university’s Title IX coordinator.
But campus leaders decided that, given the high stakes, making new hires for hearings was worth the investment, Catena said. The workload at New Mexico, which enrolls about 23,000 students, will likely be substantial: In 2019, the university received nearly 500 Title IX reports, and 66 of them proceeded through a formal investigation. The university is also hiring two part-time advisers.
The advisers for the accuser and the accused will now have the job of cross examining the opposition. In the past, they weren’t typically active participants in hearings. They served more as a confidant and support person.
Students who can afford it often hire attorneys as their advisers. But it’s also common for students to tap a close friend. So students could end up cross examining other students, which worries Eric Butler, Title IX coordinator at John Carroll University. In other cases, Bullard said, an administrator might have to cross examine their own colleague.
In cases involving serious sexual misconduct, especially on small campuses where everyone knows everyone, those dynamics could quickly become fraught and uncomfortable.
The administrators who are serving as hearing officers will have a tough job, too. During cross examination, they’ll have to determine, in real time, whether an adviser’s question should be permitted. For instance, they’ll have to artfully block questions about a student’s sexual history. “What they’re being asked to do is in some ways tantamount to a judge in a court of law,” Bullard said.
At John Carroll — which has previously used a review panel without live cross examination — Butler is the only full-time Title IX staffer. So the plan is to train a pool of about 40 faculty and staff members who can be tapped to fill the different hearing roles, he said.
But given the complexities, many colleges are not even worrying about staffing Title IX hearings themselves, if they can afford it. Valencia College, a community college in Florida, is planning to outsource everything. Getting faculty and staff members trained in time to run hearings, given that they’re still working remotely and busy getting ready for an unusual semester, was “too much,” said Bill Mullowney, general counsel at Valencia. So they’ll have “a stable of outside resources,” including attorneys, to tap as needed.
The expense should be manageable, at least at first, Mullowney said, given that Valencia is planning to hold 90 percent of its courses online this semester. The college also doesn’t have residential life. In all likelihood, he said, “we’re not going to be slammed with an immediate rush of cases.”
On other campuses, officials cautioned that they weren’t sure Title IX reports would decrease. “In a perfect world, I would hope that our students would not engage in partying on the weekends, but the reality is, it might happen,” said Dougherty, who’s been getting a steady stream of Title IX reports since Widener moved online in March. Online-harassment issues may also tick up as more students take their classes virtually.
Fifteen or so colleges in the Philadelphia area are teaming up to try to relieve the financial burden of hearings. If a student at one campus needs an adviser who’s trained to do cross examination, that institution could tap a Title IX administrator at a different campus to fill that role, instead of shelling out for an attorney. The motto of the informal group is, “how can we help each other keep our heads above water?” said Robert Wood, Title IX coordinator at Gwynedd Mercy University.
Many campus officials hope they won’t have to use the new hearing process too often. Hearings and cross examination will only be required for cases that meets the new, narrower definition of sexual misconduct under the Title IX regulations: “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education.” More minor cases of harassment or unwanted touching would go through a different grievance process.
Wood, whose campus has 3,000 students, said he usually receives 20 to 30 sexual-misconduct reports a year, with a much smaller number going through a formal investigation. Much of the time, he said, he’s just connecting students with counseling and support services, and helping them adjust class schedules and dorm assignments. At a small college, that’s often the most pressing matter.
But he’s worried that the mere possibility of a hearing will intimidate students and prevent them from coming forward at all. As a result, some victims might not get the help they need.
While administrators say they’re going to make sure their colleges are following the new Title IX rules, many of them aren’t happy about it.
“I’m frustrated that the Department of Education did not give us more time,” Dougherty said. “It was irresponsible for them to say, ‘Well, you have enough time to print a policy,’ but there’s so much more than just having this written.”
