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Arkansans air concerns on Title IX proposal

by Emily Walkenhorst | August 13, 2019 at 6:54 a.m.
Kassandra Salazar (left), a sophomore at the University of Arkansas from Rogers, speaks Tuesday, April 5, 2016, to a group of 11th-grade students from Heritage High School in Rogers as they walk past Old Main while on a tour of the university campus in Fayetteville.

Numerous Arkansans and two colleges have submitted comments in opposition to a Title IX rule proposed by President Donald Trump's administration that would affect how schools must investigate sexual misconduct reports.

The U.S. Department of Education, under Betsy DeVos, proposed the rule in November after repealing the Barack Obama administration's Title IX rule. The department seeks, in part, to ensure more rigorous due process for those accused of sexual misconduct by broadening the investigative process to mimic a judicial process.

Nationwide, thousands of students have sued their schools alleging improper handling of their complaints. Often, the plaintiffs are those who have said they were assaulted, but sometimes they are those who have been found responsible for an assault.

"The lack of clear regulatory standards has contributed to processes that have not been fair to all parties involved, that have lacked appropriate procedural protections, and that have undermined confidence in the reliability of the outcomes of investigations of sexual harassment allegations." the Department of Education said in its proposal.

Arkansas commenters found fault with at least some of the proposed rule and expressed concern that students who have experienced sexual misconduct would be less likely to report grievances.

Title IX is a federal law that governs gender equality on school campuses that receive federal funding. That includes kindergarten-through-12th-grade campuses and post-secondary schools. Often associated with athletics, Title IX covers a broad range of issues.

Students often file Title IX complaints to address their assailants' presence on campus, which they may find distressing enough to impede their ability to succeed academically. In some cases, the grievances may be against faculty members or those with influence over the students' academic success.

Colleges do not find the accused to be criminally guilty or innocent but rather determine only whether the accused was responsible. If the accused is found responsible, then the school may discipline the person, including by expulsion or termination.

Title IX also can be used to find that schools are out of compliance with handling cases.

Currently, the U.S. Department of Education has seven Title IX investigations open against Arkansas schools or districts, concerning their handling of sexual violence or sexual harassment cases. They are: the Ashdown School District; the Fayetteville School District; the Hot Springs School District; the Prescott School District; the University of Arkansas, Fayetteville; and Southern Arkansas University.

The University of Arkansas, Fayetteville has two open investigations.

Some of the proposed rule changes are a return to previous department policy, but some are new.

A handful of the major changes are that:

• Both parties could obtain legal counsel, called an advisor, or have one of their choosing from the school.

• Post-secondary schools would have to allow a live hearing (but not elementary or secondary schools).

• The advisor for the person accused of sexual misconduct could cross-examine the accuser during the live hearing.

• Both parties would be able to "inspect and review" any evidence obtained during the investigation.

• Schools would only need to investigate if the alleged incidents occurred on campus or during an educational activity.

• Schools could choose mediation to settle a claim, if both parties agreed to it.

• The definition of "sexual harassment" would change from "unwelcome conduct of a sexual nature" to a previous, narrower definition.

• Consistent with old rules, colleges could choose to require a higher standard of proof when finding people responsible for sexual misconduct.

The department estimates nationwide cost savings of $286.4 million to $367.7 million for institutions, although those estimates assume that both parties would hire attorneys and would not use a school-provided advisor. The estimates also consider that schools will be obligated to investigate fewer complaints. Smaller schools would see less in savings, based on their smaller scales.

The Arkansas Democrat-Gazette searched 124,186 comments on the Federal Register for mentions of "Arkansas" and found comments from two Arkansas colleges, dozens of residents and a handful of people who say they have experienced sexual misconduct at an Arkansas campus. The newspaper did not find comments from the state's largest kindergarten-through-12th-grade school districts.

The newspaper contacted nearly every community college and university in Arkansas, public or private, through email to ask whether they had submitted a comment; why or why not; whether they would opt for the narrowed scope of only being required to investigate on-campus, educational activity-related incidents; and how many open cases concern incidents that occurred off campus or outside of educational activities.

Most of the nearly 50 schools did not respond, and several that did declined to answer why they did not comment or how many current open cases concern incidents that took place off campus and outside of educational activities. Most responding schools said they would follow whatever the rules were but did not state whether they would continue to investigate those complaints.

A Southern Arkansas University spokeswoman said the school would continue to investigate off-campus incidents. A South Arkansas Community College spokesman said the college would investigate such cases in the future -- it had three reported last year -- based on "whether the off-campus behavior had on-campus effects." Arkansas Northeastern College did not comment because officials "were not aware of the proposed changes," according to a spokesman.

The only two schools to submit comments that the newspaper could identify were John Brown University and South Arkansas Community College.

Hendrix College contributed to comments submitted by the Associated Colleges of the South and the Association of Title IX Administrators, spokeswoman Amy Forbus said.

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.

In their comments, schools took issue with some of the major provisions of the proposed rule.


Barbara Jones, president of South Arkansas Community College, wrote that all of the college's students live off campus, meaning the college "often supports students and staff who have experienced sexual violence outside the institution's educational program or activity."

"The regulations need to definitively state that a college has the authority to investigate such incidents and pursue disciplinary action where warranted," Jones continued.

In its rationale, the U.S. Department of Education argues that schools were never supposed to investigate off-campus complaints. The department cites 20 U.S. Code § 1681, which implements Title IX and which prohibits discrimination "under any education program or activity."

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."

One University of Arkansas, Fayetteville student said, "If schools are no longer required to look into these types of cases, they most likely will not." Another UA student was concerned that less support and fewer resources would be available to students experiencing intimate-partner violence.

John Brown University, which had nearly 2,500 students last fall, said about half of complaints received would fall outside the proposed scope of the rule. But at Hendrix, the "overwhelming majority" of students live on campus, Forbus said, so the school would likely be less affected than others.


The proposed rule would change the Obama-era definition of sexual harassment from "unwelcome conduct of a sexual nature" to an older definition: an institution's employee making "the provision of an aid, benefit, or service" conditional, based "on an individual's participation in unwelcome sexual conduct; or unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity."

That definition, if approved, "means it will be much more difficult for us to determine what actually denies a person equal access to our educational program," wrote John Brown University's Andre Broquard and Amy Fisher, Title IX coordinators. It could exclude those who have experienced a "lower level" of harassment or assault, they wrote.

In its rationale, the department cites two U.S. Supreme Court cases regarding sexual harassment and Title IX and argues the department should maintain a definition of sexual harassment that is consistent with those "foundational" rulings.

"If enacted, this rule would only allow for the investigation of the most extreme forms of harassment" or "those that COMPLETELY deny one's access to an education," wrote Justin Kohley, a board member of Northwest Arkansas Center for Sexual Assault. "This ignores a large variety of cases that don't fall into this category yet still severely impact a student's access to education."


From 2011 through part of 2017, per the Obama administration's Department of Education, the only standard of proof for finding a student responsible for sexual misconduct was whether they more likely did it than did not, referred to as a "preponderance of evidence" standard.

DeVos proposes allowing schools to use that standard or a "clear and convincing" evidence standard, which the Obama administration had argued was a higher standard than that of other civil-rights laws.

John Brown University contends 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 department acknowledged that Title IX does not state a standard of proof that schools must follow. Previous department guidance contended that Title IX grievance processes resemble civil litigation, for which "preponderance of evidence" is the standard. But the department, under DeVos, now asserts that the grievance processes "lack certain features that promote reliability in civil litigation," such as active participation by counsel or a similar level of discovery for each party.


The department's proposed rule would make changes related to a discovery-type process and participation of legal counsel.

The rule would allow parties to "inspect and review" evidence in a case "so that each party can meaningfully respond to the evidence prior to conclusion of the investigation," according to the proposal. That and the ability of both parties to have guidance from an advisor throughout the process means "the process will be substantially more thorough and fair and the resulting outcomes will be more reliable," the department wrote.

Allowing parties to access any evidence obtained during an investigation would, according to the student body presidents, mean that "confidential information such as mental health history or medical records may be shared with respondents, even if irrelevant to the case."

Many commenters were concerned about the rules surrounding such advisors.

Allowing the parties to hire private counsel during a Title IX investigation would favor the more affluent party, wrote Broquard and Fisher at John Brown University.

Many people also have opposed the requirement that the accuser be subject to cross-examination at a live hearing by the accused's advisor.

Broquard and Fisher argued that process could be traumatizing to the accuser, calling the provision "especially troubling."

"We do believe that both parties have the right to request that certain questions be asked of the other party," they wrote. "However, we believe this should be done through the Title IX office, when those who have knowledge of the case are able to put into context the question and how relevant it is to the investigation."

The department cited court cases favoring live cross-examination as the impetus for its rule change, but it would exempt elementary and secondary schools from the requirement because of the students' young ages. At those levels, cross-examination can be conducted via written questions.

At the higher-education level, a party can request that the other not be present in the room, even if that party's advisor is.

While hearings are required to be an option, schools could opt for mediation, if both parties choose, under the proposed rule. Many comments said students often feel pressured into agreeing to mediation.

And several colleges have argued that they are not equipped to conduct the judicial-like hearing process.

"South Arkansas Community College is not equipped to be, and does not wish to be, a judicial body," Jones wrote.

The college had fewer than 1,500 students last fall.

A Section on 08/13/2019

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