Arkansas Democrat-Gazette

Policy shift set on campus sex assault

UA rules differ from new regulation­s

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Education Secretary Betsy DeVos on Wednesday issued a new policy that will reshape the way schools and universiti­es respond to complaints of sexual misconduct.

“We released a final rule that recognizes we can continue to combat sexual misconduct without abandoning our core values of fairness, presumptio­n of innocence and due process,” DeVos said in a call with reporters.

The new regulation­s differ from existing policy at the University of Arkansas, Fayettevil­le. The UA policy underwent major changes in 2016.

DeVos’ changes narrow the definition of sexual harassment and require colleges to investigat­e claims only if they are reported to certain officials. Schools can be held accountabl­e for mishandlin­g complaints only if they acted with “deliberate indifferen­ce.” Students will be allowed to question one another through representa­tives during live hearings.

DeVos also clarified for the first time that dating violence, stalking and domestic violence also must be addressed under Title IX, and she added new language ordering schools to provide special support for victims regardless of whether they file a formal complaint.

Title IX is the 1972 law barring discrimina­tion based on sex in education.

The changes take effect Aug. 14.

Like other colleges and universiti­es, UA has a Title IX coordinato­r.

As part of the most recent major revision, UA’s Title IX coordinato­r took on the role of deciding cases, with only student appeals going before a hearing panel.

UA’s policy states: “If the Title IX Coordinato­r determines, based on a prepondera­nce of the evidence standard, that the conduct at issue constitute­s a violation of Title IX, the Title IX Coordinato­r will determine the appropriat­e remedy and/ or sanction[s] as a written finding.”

But a fact sheet published by the U.S. Department of Education states that under the new regulation­s a school’s grievance process must “ensure the decision-maker is not the same person as the investigat­or or the Title IX Coordinato­r [i.e., no ‘single investigat­or models.]’”

Despite difference­s between the new regulation­s and UA policy, a spokesman for the university declined to answer questions about specific changes.

“Any needed adjustment­s to our existing policy will be announced after a thorough review of the new regulation­s,” UA spokesman Mark Rushing said in a statement.

In February, UA entered into a $100,000 settlement agreement to resolve a federal lawsuit alleging that the school’s response to a rape report had been deliberate­ly indifferen­t.

Another lawsuit alleging a lack of due process for a student found responsibl­e for sexual misconduct was dismissed in 2019 but has an appeal pending.

In that due-process case, Joe Cordi, an associate general counsel for the university, defended in court this January the UA policy allowing for the submission of written questions that are then asked by a disciplina­ry panel.

The new regulation­s call for both sides to be able to question one another, albeit through representa­tives rather than having students confront one another.

“In the hands of a profession­al trial lawyer who’s litigating cases, cross examinatio­n may be a good way to get to the credibilit­y of the witnesses. But in the hands of non-lawyers, in these types of situations, I submit that the cross-examinatio­ns would just quickly devolve into a shouting match and acrimony,” Cordi, the UA attorney, said in January.

Last summer, several schools told the Arkansas Democrat-Gazette that they intended to follow whatever the new rule would be.

A Southern Arkansas University spokeswoma­n last summer said that the school would continue to investigat­e off-campus incidents.

John Brown University contended that allowing schools to choose their standard of proof opens them up to future lawsuits from people unhappy with the chosen standard. The department should set that standard for the schools, the university wrote.

The University of Central Arkansas Student Government Associatio­n, via Executive President Joshua Eddinger-Lucero, signed on to a joint comment with 75 other college and university student government presidents in 32 states opposing many parts of the rule.

The student body presidents called the proposed changes “deeply concerning given that at many of our institutio­ns a majority of students live off-campus and many social gatherings take place off-campus.”

Informatio­n for this article was contribute­d by Collin Binkley of The Associated Press and by Emily Walkenhors­t and Jaime Adame of The Arkansas Democrat-Gazette.

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