U.S. issues draft rules on campus sex assault; Arkansas college, university officials weigh in

Proposal would narrow investigations

Proposed rules published Friday by the Education Department bring into focus a changed vision for how schools should best respond to sexual assault and sexual harassment involving students.

The new rules would include a reduction in the types of complaints that would lead to campus investigations, no longer requiring colleges and universities to investigate reports considered unrelated to a school's "education program or activity."

The rules also would add requirements aimed at providing protections for students accused of misconduct.

Also under the proposal, "for the first time in 43 years, we've changed the definition of sexual harassment ... we've contracted it pretty severely," said Thomas Pennington, general counsel for Arkansas Tech University and also a professor at the university.

"It substantially changes everything. It's almost like being told Coke is now Pepsi," Pennington said.

Advocacy groups voiced objections to the proposed rules Friday, stating that they would allow schools to ignore complaints. Sex-based discrimination is prohibited at schools receiving federal money under Title IX, with authorities requiring schools to respond to sexual-assault and sexual-harassment reports.

Education Secretary Betsy DeVos in a statement said her focus in drafting the rules "was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment."

She added: "That starts with having clear policies and fair processes that every student can rely on. Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined."

The proposed rules differ in some areas from existing policies at Arkansas colleges and universities, but school officials Friday mostly declined to get into specifics about how their procedures might change if the rules receive final approval.

University of Arkansas, Fayetteville spokesman Mark Rushing said in an email that "it would be premature to comment or speculate about the specifics of any potential changes."

Pennington, speaking Friday at a meeting of Arkansas public higher-education trustees, said the proposed rules represent a "sea change" in how schools would investigate sexual-misconduct complaints.

After the event, Pennington said crafting policies around the new rules will be "a great deal of work" for universities, though he said the process would be somewhat familiar after changes made based on Title IX guidance issued by President Barack Obama's administration in 2011.

The 2011 guidance defined sexual harassment as "unwelcome conduct of a sexual nature." Under the proposed rules, it is defined as unwelcome sexual conduct that "effectively denies a person equal access to the school's education program or activity."

Pennington said the proposed rule changes could be perceived as a correction from the Obama-era guidance, which some thought "swept up too much conduct ... what I see this as is narrowing that funnel."

Schools now must investigate complaints whether the assault or harassment takes place on or off campus.

Language in the rules "should not be conflated" with campus borders, the proposal states. But under the plan, schools would have to investigate complaints only if the alleged incidents occurred on campus or other areas overseen by the school, and only if they were reported to certain campus officials with the authority to take action.

Liane Birmingham, 20, a student at UA-Fayetteville, said she thinks schools should still investigate off-campus complaints.

"There's a lot of sexual assault that takes place off campus that still involves U of A students," Birmingham said. Schools "should treat it almost equally, just because of the fact that they are still university students," Birmingham said.

Students who report assault or harassment to a school may be able to receive accommodations, such as alterations to schedules or housing.

Southern Arkansas University's Title IX office has responded to 41 complaints, said Aaron Street, a spokesman for the university. Out of that number, seven would have fallen outside of the newly defined area of responsibility as described in the new rules, Street said.

Fatima Goss Graves, president and CEO of the National Women's Law Center, in a statement said that if the draft rules go into effect, "schools will become more dangerous for all students and more schools will shield harassers and rapists."

Some parts of the proposed rules appear to go against existing policies at UA and other schools, such as cross-examination of a student reporting an assault.

Included in the new rules, the Education Department proposes: "At the hearing, the decision-maker must permit each party to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility," with "such cross-examination" to be done "by the party's advisor of choice."

The issue of live cross-examination has been raised in federal lawsuit against UA filed this year alleging a violation of due process and Title IX. The lawsuit was filed by a former student who was sanctioned for sexual misconduct.

UA's Sexual Assault and Sexual Harassment policy states: "The parties will not be allowed to personally question or cross-examine each other or the Title IX Coordinator during the hearing, but will be allowed to question witnesses and will be allowed to hear the testimony of the other party via closed circuit television or other means."

In court documents, the university has claimed that live questioning was allowed in the case on which the lawsuit is centered. The university stated in court documents that the hearing panel that decided the case and a Title IX staff member were able to ask questions submitted by the student accused of misconduct. The student suing UA has said in court documents that a panel asking questions does not satisfy due process.

Other schools in Arkansas have policies similar to UA's when it comes to the types of questioning allowed.

Arkansas State University's policy states: "If the grievance is one alleging sexual sexual assault or sexual violence, the parties will not question the other."

Bill Smith, a spokesman for ASU, said the university is reviewing the proposal and will follow all regulations.

Southern Arkansas University's policy states the person accused of misconduct may ask questions through the chairman of the school's Title IX committee.

"If the regulations are adopted as presented, the step of going through the [chairman] may need to be modified," Street said in an email.

In October, the membership organization Association of Title IX Administrators in a statement noted that a mandate for cross-examination "likely will result in a significant chilling effect on the willingness of individuals to report sexual misconduct."

Samantha Harris, vice president for procedural advocacy at the Foundation for Individual Rights in Education, said that by taking seriously the rights of students on both sides of a complaint, the proposed rules "make important strides toward ensuring that complaints of sexual misconduct will be neither ignored nor prejudged."

DeVos rescinded a guidance letter in September 2017, with the proposal set to take the place of the Obama-era rules.

The Obama guidance required a preponderance-of-evidence standard, or more likely than not, to find a student responsible for misconduct. Schools can now adopt a higher "clear and convincing" evidentiary standard.

A statement from the Association of Public and Land-grant Universities says it expects schools to "far exceed" the minimum that's required in Title IX rules.

Public input on the rules will be gathered before the rules can be finalized.

Information for this article was contributed by The Associated Press.

A Section on 11/17/2018

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