Policy shift set on campus sex assault
UA rules differ from new regulations
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.