Schools revisit Title IX policies
Guidelines shift on assault cases
Arkansas universities are reviewing campus policies after the U.S. Department of Education released temporary guidelines Friday on how colleges should respond to sexual misconduct.
The federal agency’s interim guidance followed through on a pledge Education Secretary Betsy DeVos made Sept. 7 to replace what she called a “failed system” of civil-rights enforcement on matters related to campus sexual assault. In her view, the government failed under President Barack Obama to find the right balance in protecting the rights of victims and the accused.
On Friday, DeVos also rescinded Obama-era provisions, guidelines from 2011 and 2014, on matters including evidence standards and time frames for sexual-assault investigations.
The new guidelines came as 258 post-secondary institutions — including two universities in Arkansas — faced inquiries related to their handling of sexual violence complaints. Those investigations are ongoing, of-
said, but certain cases could be reevaluated if they are directly related to the 2011 guidance that has now been scrapped.
Under Obama, the Education Department’s Office for Civil Rights had declared in 2011 that schools should use a standard known as “preponderance of the evidence,” meaning that something is more likely than not to be true, when judging sexual violence cases that arise under the anti-discrimination law known as Title IX.
That is lower than the “clear and convincing evidence” standard that had been in use at some schools.
Now, under President Donald Trump, the Office for Civil Rights is declaring that schools may use either standard while the government begins a formal process to develop rules on the issue. How long that will take is not clear. A department official said the administration does not want to rush the process.
Obama-era guidance also said investigations should take about 60 calendar days after receipt of a complaint, but that not all cases — especially severe and complex ones — needed to be resolved that quickly.
The new guidance states investigations must be done in a fair, impartial and timely manner but also says, “there is no fixed time frame under which a school” has to complete the investigation.
Adaku Onyeka-Crawford, senior counsel for the National Women’s Law Center, criticized the change to evidence standards and the new guidance.
“There were schools that were getting it wrong, but the problem wasn’t the guidance,” Onyeka-Crawford said.
She also said that by removing the 60-day recommendation, “it actually is more confusing than what the former guidance was and gives less guidance to schools.”
Arkansas universities on Friday said they were looking over the new guidance.
“Our General Counsel’s office is obviously aware of the new guidance and they are actively reviewing all of the information and will be seeing what policy changes, if any, will need to be made at our campuses,” Nate Hinkel, a spokesman for the University of Arkansas System, said in an email.
Mindy Pipkin, associate general counsel and Title IX coordinator at the University of Central Arkansas, said in a statement that the university “is in the process of reviewing its procedures in light of the Department of Education’s new guidance.”
It is by no means certain whether, or how much, colleges will change their protocols. University of California President Janet Napolitano told reporters Wednesday that she does not expect the 10-campus California system to drop the preponderance standard.
Terry Hartle — senior vice president of the American Council on Education, which represents college and university presidents — said schools are likely to take a cautious approach while they await definitive rules.
“Schools will respond conservatively to this,” he said. “Most of them will leave in place what doesn’t need to be changed.”
The interim guidelines could also affect active federal civil-rights investigations at some colleges and universities. Currently, the University of Arkansas, Fayetteville and Southern Arkansas University are under federal investigation.
An investigation was opened in July into SAU.
The Magnolia university declined to comment about the investigation. Asked about the new guidance, “initially we do not see a need for changes in any of our policies or procedures,” the university said in a statement emailed by spokesman Aaron Street.
As far as the time it takes to resolve student complaints, “we have had no instances to take two months,” the statement said. “We believe that we currently meet the prompt and equitable standard.”
Two separate investigations were opened into UA last year, one related to a male student’s claim that UA mishandled a complaint lodged against him.
Data prepared by UA in response to federal investigators showed that it took 66 days on average in 2015 to get a hearing. For 22 cases with documented time lines, the average was 72 days before a decision was made on any sanctions, according to a Democrat-Gazette analysis of records released under the state’s public disclosure law.
A UA student last year told the Democrat-Gazette she waited more than 100 days for a hearing after reporting in April 2016 she had been raped by another student.
The woman, now 23, earned her degree from UA this spring. In a text message Friday, she said “Title IX was the only thing that went right for me, even though it did take a long time.” She said a Washington County prosecutor declined to prosecute her case.
She said she understands that a college may have a large caseload, but said she did not think it is fair for colleges to have victims and the accused waiting longer than two months.
While the university provided some accommodations, she said she still “had to live with my abuser on campus” before he was ultimately expelled.
Mark Rushing, a spokesman for UA, said staff will need time before considering “if and how” the school’s policies may be revised.
“The university has always and will continue to focus on ensuring prompt and equitable resolution to these cases, providing fairness to both complainants and respondents,” Rushing said. The university’s current policy, rewritten last year, states that Title IX investigations “will generally be completed” within 60 calendar days “absent extenuating circumstances.”
The new guidance states investigations must be done in a fair, impartial and timely manner but also says, “there is no fixed time frame under which a school” has to complete the investigation.