The U.S. Department of Education released new Title IX guidelines last Friday, and it’s unclear how the standards might affect colleges around the country, including the University of New Mexico.
Due to the agreement brokered with the Department of Justice in 2016, UNM might have different standards than other schools regarding sexual harassment and sexual assault investigation and procedures.
The agreement with DOJ mandated that UNM implement training, revise University policy on reporting to better resolve sexual harassment and sexual assault allegations, eliminate the hostile environment and ensure Title IX staff are adequately trained. UNM still has to provide reports until 2020.
Office of Equal Opportunity Director Francie Cordova told the Daily Lobo the new guidelines currently have “a lot of vagueness” regarding how day-to-day policies may change, especially in the context of the DOJ agreement.
“It’s still unclear how this would affect UNM because of our agreement, which we still have one year on, with the DOJ, and for OEO, we’re still committed to the path we’ve been on.”
The 144-page document focused on Title IX’s prohibition specifically on sexual assault and did not touch on any other forms of discrimination.
In Sept. 2017 Education Secretary Betsy DeVos scrapped the Obama administration's “Dear Colleague Letter” which had been in place since 2011. DeVos has previously criticized the Title IX guidance as stepping on due process, and not being fair.
The Department of Education previously released a database in 2018 regarding schools under investigation for sexual assault by the Office of Civil Rights. However, UNM was one of a few schools investigated by the DOJ for their policies handling sexual assault and harassment.
DOJ wrote at the time that the incidents of sexual assault and harassment “created a hostile environment for affected students they were sufficiently serious that they interfered with or limited students’ ability to participate in or benefit from the school’s program.”
The OEO is in charge of investigating claims of discrimination on campus, based on “protected classes” including, but not limited to, disability, race and religion.
The Student Conduct Officer, Kelly Davis, in the Dean of Students’ Office is described as working with students and visitors who may have violated UNM codes and policies.
The proposed regulations differ from a draft leaked in August, where more emphasis was placed on proof standards.
Currently, UNM uses a “preponderance of evidence” standard. This means to determine if someone has broken the student code of conduct, weigh the evidence and it seems “more likely than not” that the student broke the code, then they can recommend sanctions.
And UNM will continue to use the standard, and will not have to use “clear and convincing” which means a higher burden of proof.
Define conduct constituting sexual harassment
They highlight quid pro quo harassment, limiting the definition of sexual harassment to unwelcome conduct that is so “severe, pervasive and objectively offensive” and limits access to education or activities and sexual assault as a crime.
Then there’s the standard of “actual knowledge” thrown into the reporting mix. Actual knowledge is another legal term defined by Black’s Law Dictionary as “(k)nowledge gained through first-hand observation or experience, as distinguished from a belief based on what someone else has said.”
Cordova said this standard of actual knowledge may change what would happen with mandatory reporters, but again, said it is unclear.
“It’s a legal term meaning the reporters have to have actually experienced or witnessed something,” she said.
This differs significantly from UNM’s LoboRESPECT guidelines for reporting “allegations or potential of abuse.”
Aim to establish new procedures to as “safeguards for the investigation” and consequences of a complaint.
In their shorter rule summary, the DOE describes final determination and “cross-examination” as:
“For colleges and universities, a final determination must be made at a live hearing, and cross-examination must be allowed (with rape shield protections against asking about a complainant’s sexual history) and must be conducted by each party’s advisor (i.e., no personal confrontation allowed).”
Reading into the full-page explanation, this process gets more complicated. There’s a provision — called (b)(3)(iv) — that enables institutions to restrict the role of advisor participation. It is unclear what would happen in cross-examination the case of limited roles.
At the hearing, each party is permitted to ask party and any witnesses any and all questions, including those challenging credibility.
“All cross-examination must exclude evidence of the complainant’s sexual behavior or predisposition, unless such evidence about the complainant’s sexual behavior is offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the evidence concerns specific incidents of the complainant’s sexual behavior with respect to the respondent and is offered to prove consent.”
Either party can request the cross examination in separate rooms as long as it can occur live video chat to see and hear answers.
Finally, if any party or witness is not cross-examined, “the decision-maker must not rely on any statement of that party or witness in reaching a determination regarding responsibility.” In other words — discard their previous statements.
Fines and Fees
The new guidance may also change how institutions may be punished, taking away a sanction power of the OCR. The DOE is prohibiting their own Office of Civil Rights from using money damages when universities violate Title IX.
Finally to become exempt from Title IX for religious reasons institutions no longer have to submit a written statement. Instead, “the institution may still invoke its religious exemption during the course of any investigation pursued against the institution by the Department.”
Before the regulations will be passed, there is a 60-day comment period for institutions and the Department of Education to engage in discussion about policy and practices. Cordova said before the University can make any real changes to policy a lot of questions need answers.
“So what we’re going to see in the next year is a lot of digesting nationally by legal groups before any final decisions are made,” Cordova said.
Danielle Prokop is a senior reporter for the Daily Lobo. She can be contacted by email at firstname.lastname@example.org or on Twitter @ProkopDani.