New university Title IX rule goes into effect today

Procedure for responding to reports of sexual assault on campus changes

FAYETTEVILLE — A new definition of sexual harassment and different procedures for responding to campus sexual assault are among changes at Arkansas colleges and universities as a contested federal rule takes effect today.

Revised policies at Arkansas State University and the University of Arkansas also make clear reports of sexual misconduct occurring off campus no longer will be investigated through campus Title IX offices, though the universities say they’ll still review student complaints of off-campus misconduct.

Several colleges in the state and elsewhere revised campus policies in recent days, citing the U.S. Department of Education’s final rule regarding Title IX, which is the law prohibiting sex-based discrimination at schools receiving federal money.

“We first have to figure out, when a report is made, does it now fall under Title IX? That’s because the definition is very different than what it was,” Liz Means, UA’s Title IX coordinator, told students in a videoconference meeting last week.

In 2018-19, the most recent year with data made public by UA, the university’s Title IX office responded to 163 complaints. Out of that total, 55 involved a report of sexual assault or non-consensual sexual contact.

The new rule requires schools to investigate formal complaints using a process with due process principles, according to the U.S. Department of Education. For colleges, the process must include a live hearing allowing cross-examination by advisers.

Critics of the new rule filed legal challenges, trying unsuccessfully to block the final rule from taking effect as scheduled.

On Thursday, UA published online its new Title IX Policy for Complaints of Sexual Assault and Other Forms of Sexual Harassment, with an effective date of today.

UA spokesman Mark Rushing, asked about major changes in how sexual assault cases will be decided on campus, said the final rule “requires a live hearing be conducted providing each party with the opportunity to present evidence, call witnesses, and cross examine participants through their adviser.”

Rushing said at UA a “neutral hearing officer will conduct the hearing and determine if a violation of the university’s Title IX policy occurred applying the preponderance of evidence standard.”

Such an evidentiary standard means something is more likely than not to have occurred, and is the same standard UA previously has used in such cases.

In 2018-19 at UA, two sexual assault or sexual contact cases ended with a university finding someone was “responsible” for violating policy, according to university data. Another seven ended with a “not responsible” finding.

Most other sexual assault reports to UA’s Title IX office in 2018-19 didn’t advance to a resolution for reasons including an unwillingness to pursue a formal complaint or a lack of evidence. The data and the campus Title IX response are separate from any police action.

The new UA policy has a revised definition of sexual harassment.

Previously, UA described sexual harassment as “unwelcome, gender-based spoken, written or symbolic action or physical conduct that is sufficiently severe, persistent or pervasive that it has the effect of unreasonably interfering with, limiting or denying someone the ability to participate in or benefit from the University’s educational programs.”

Rushing said the new policy “reflects the Department of Education’s Title IX Final Rule’s definition of sexual harassment.” The policy essentially defines sexual harassment in three ways: involving a university employee asking for sexual favors as trade for certain benefits; criminal acts of sexual assault, stalking, and dating or domestic violence; and “unwelcome conduct determined by a reasonable person to be so severe, pervasive and objectively offensive that it effectively denies a person equal access to the University’s educational programs or activities.”

R. Shep Melnick, a Boston College professor, in an analysis published by the Brookings Institution called the third element “more controversial.”

Melnick wrote the Education Department, in putting together the final rule, “rejected the position that Title IX requires schools to prohibit comments that might seem minor in themselves but contribute to a broader ‘hostile environment,’” referring to a term used in guidance to schools issued under President Barack Obama. In 2011, the Obama-era guidance asked schools to “eliminate a hostile environment if it has been created.”

Melnick also noted the new rule is worded to “hold schools responsible only for harassment that occurred within their program.”

The previous UA policy explicitly stated: “Allegations of off-campus sexual misconduct are of particular concern and should be brought to the University’s attention.”

This language is absent from the new UA Title IX policy. Rushing said “reported allegations that do not fall within the jurisdiction of the Department of Education’s Title IX Final Rule, must be dismissed under Title IX.”

“However, each allegation of prohibited conduct, regardless of location, will be evaluated and referred to the appropriate campus authority to determine if another policy violation may have occurred,” Rushing said.

Arkansas State University’s website also refers to changes in its policies. The Arkansas State University trustees on Wednesday approved new Title IX regulations for each ASU System campus.

ASU’s website states the campus “will incorporate the mandatory definitions from the new Title IX regulations, including the definitional change made to sexual harassment.”

The campus will review complaints of sexual harassment taking place in private locations off campus, according to ASU’s website.

“Yes, involved parties will have the opportunity to file a formal complaint and have that complaint reviewed by either the Office of Student Conduct or Human Resources, whichever campus resource is applicable. This will be a separate process outside of Title IX,” states ASU’s website.

Among other universities, the Arkansas Tech University trustees on Aug. 4 approved “an interim equal opportunity, harassment (sexual misconduct) and nondiscrimination policy,” according to a school statement.

Critics have said the new final rule wrongly narrows the reach of civil rights protections, and the split has been highly partisan.

U.S. Education Secretary Betsy DeVos announced the draft rule in November 2018, stating the importance of “clear policies and fair processes that every student can rely on.” DeVos, an appointee of President Donald Trump, later in 2018 officially rescinded guidance given out to colleges and universities under President Barack Obama.

Supporters of the new rule include Arkansas Attorney General Leslie Rutledge, who joined with other Republican attorneys general last month in filing a friend-of-the-court brief asking the rule be allowed to go into effect as scheduled.

Education groups, however, cited the ongoing pandemic as a reason to give schools more time to get into compliance with the new requirements.