What Does Higher Ed Have to Say About the Proposed Title IX Rules?

Saul Loeb, AFP, Getty Images

The Education Department’s proposed regulations on Title IX, the federal gender-equity law, would provide colleges with some long-sought flexibility when responding to sexual-misconduct reports — but would make campus disciplinary proceedings far too legalistic and burdensome.

That’s according to the public comments, compiled in a 33-page letter, submitted to the Department of Education on Wednesday by the American Council on Education, higher education’s biggest lobbying arm. Sixty other associations signed onto the letter.

The letter runs through a long list of “serious concerns” that colleges have about the proposed regulations. On the whole, said Ted Mitchell, ACE’s president, they “are a step in the wrong direction.”

Terry Hartle, senior vice president for government and public affairs at ACE, told The Chronicle that the association spent more time on the Title IX letter than on any other public statement in the past five years.

“The draft regulation is like the world’s biggest artichoke,” Hartle said. “You see something and you start peeling off a layer, and there’s another layer below that, and another layer, and they get finer and finer.”

Higher-education groups have often argued that the Obama-era guidance — which significantly changed how colleges handle sexual-misconduct cases — was inflexible and often confusing for administrators. The groups criticized federal officials for choosing not to solicit feedback on their proposals through a regulatory process.

Betsy DeVos, secretary of education, announced in 2017 that the department would scrap that guidance and issue new Title IX regulations. The proposed rules were published in November, and the public-comment period for them ended on Wednesday.

Here are five of the main points in ACE’s letter:

Colleges are educational institutions, not court systems.

Requiring live hearings and cross-examination for sexual-misconduct cases would effectively force colleges to create miniature courtrooms, which isn’t appropriate, the letter says.

It asks the department to abandon both mandates and give colleges the ability to choose between hearings or a nonhearing model, as long as each student involved in a case has the chance to test the credibility of the opposing party and witnesses.

The letter also notes that the department uses “due process” more than 30 times in the proposed rules and recommends that federal officials instead use a term like “fair process.”

There’s a presumption in the proposed regulations that every college should be able to “provide a court-like forum for one individual to press a case against another,” the letter says. That doesn’t take into account the realities for small and underresourced colleges.

The letter also predicts that the proposed regulations would bring about a cottage industry of lawyers who would bring an “adversarial” tone to campus disciplinary proceedings.

Colleges should have the flexibility to “treat different cases differently.”

As long as institutions are running a fair process and following their policies, the letter says, administrators should be able to make judgment calls about what kind of approach makes sense for individual cases.

The letter praises the department’s proposal for allowing informal resolution of cases — in other words, no investigation or hearing — if both the alleged victim and the accused student agree to it. That change, the letter says, “would provide survivors more flexibility to determine how they wish to proceed.”

College leaders were also pleased to see the elimination of the “arbitrary and inflexible” requirement for resolving sexual-misconduct cases in 60 days, which had been part of previous Title IX guidance.

When colleges act in good faith to comply with Title IX, don’t second-guess them.

The letter hints at colleges’ frustration with the heavy-handed approach of the Obama-era civil-rights office, which opened hundreds of investigations into institutions for possibly mishandling sexual-misconduct cases.

The department should aim to work with colleges to prevent sexual harassment, the letter says, not against them.

“When institutions fail to live up to their obligations under Title IX, and clearly err, they should be held accountable,” it says. “But when institutions act in good faith, after a careful and deliberative process, they should not be second-guessed by the department.”

Colleges don’t want to be let off the hook.

Many observers have said the proposed Title IX rules would take some of the pressure off colleges for responding to cases of sexual misconduct, by scaling back the kinds of cases that administrators would be required to investigate.

The letter commends the department for providing an explicit definition of sexual harassment, and for clarifying that officials would have to investigate only those sexual-misconduct reports that the institution had “actual knowledge” of.

“However, institutions will also continue to act upon sexual harassment outside of or beyond the regulation’s specific requirements,” the letter says. “The regulations should be equally clear that they do not prohibit or inhibit such institutional response.”

The letter takes issue with the department’s suggestion that if a report doesn’t fall within its proposed narrower definition of sexual harassment, colleges “must dismiss the formal complaint with regard to that conduct.”

“This language implies that an institution is prohibited from moving forward under its own campus disciplinary procedures to address a violation of its own code of conduct for sexual misconduct if that conduct falls outside the boundaries of the proposed rule’s definition,” the letter says. “We believe this is a serious mistake.”

Many colleges would be forced to adopt a higher standard of evidence.

The Obama administration told colleges to use a standard of preponderance of evidence — that is, more likely than not — to determine whether a sexual assault had occurred. Some state laws also require that standard. Critics charged that “preponderance” was unfairly low, resulting in the punishment of accused students even when the evidence was murky.

The proposed regulations would technically give colleges a choice of which standard to use — preponderance or “clear and convincing,” a higher burden. But they would also require colleges to use the same standard for all campus disciplinary proceedings, including those for faculty and staff members.

Because of collective-bargaining agreements and institutional-governance policies, the letter says, many colleges would be forced to adopt “clear and convincing” for sexual-misconduct cases, “making this a de facto federally prescribed standard.” The letter implores the department to drop that mandate.