A young man on the swim team of a private research university is convicted of sexually assaulting a young woman at a campus party, in a case that becomes top national news for months. At a public university, 130 researchers sign an open online statement accusing a professor of sexual assault and harassment of young students. Thousands of miles away at another public university, a half-dozen top administrators, including the institution’s president, resign after a national outcry over their failure to protect students from a sports doctor who was eventually convicted of sexually assaulting hundreds of young girls and women.
These high-profile cases are part of the realm of Title IX, the federal civil rights law that prohibits all forms of sexual discrimination and misconduct in educational institutions. The law also requires gender equity in any program or activity receiving federal financial assistance, including athletic programming, admissions, and more. Whether sexual misconduct cases become national news, the talk of campus, or an experience that has an impact on a small set of students, the cultural, educational, financial, and reputational stakes for colleges and universities are high. For those reasons, college and university trustees recognize Title IX compliance as a top area of concern for their institutions as they consider not only their enterprise risk management strategies but also the educational environment their institution provides.
The U.S. Department of Education on Nov. 16 released a proposal for sweeping changes to Title IX rules regarding campus sexual misconduct. The proposed rules would increase the rights of those accused of sexual harassment, including sexual assault and rape; encourage more education and prevention efforts; narrow the scope of higher education institutions’ responsibilities for handling complaints; and give institutions more flexibility in some aspects of judicial processes.
“It is our goal with this proposed rule to ensure that Title IX grievance proceedings become more transparent, consistent, and reliable in their processes and outcomes,” U.S. Secretary of Education Betsy DeVos said in announcing the proposed changes. “Far too many students have been forced to go to court to ensure their rights are protected because the department has not set out legally binding rules that hold schools accountable for responding to allegations of sexual harassment in a supportive, fair manner.”
Colleges and universities now have an opportunity to respond to the proposed rule changes during the 60-day comment period, which extends until Jan. 28, 2019. AGB issued a policy alert in November, urging member institutions to weigh in on the proposed language. “Board members recognize that ensuring a safe and supportive learning environment is fundamental to the makeup of higher education institutions,” AGB President Richard D. Legon said. He noted that AGB plans to be a part of the review and discussion process to ensure the best results for institutions and students.
Boards also should be taking a broader look at their overall campus climate and protocols regarding sexual misconduct, said Jeffrey B. Trammell, a former board chair of the College of William & Mary and a former member of AGB’s Board of Directors. “Every board, at this juncture, needs to take a fresh, hard look at what its institution’s procedures are regarding sexual misconduct and how equipped it is to get the response to these issues right,” he said. “Board members should look at best practices and understand the federal regulations as well as the state laws.”
A CHANGING FEDERAL APPROACH
For now, most colleges and universities are staying the course with their current procedures for handling sexual harass-ment until the Department of Education issues the final rules. After 2011, when the Department of Education under the Obama administration first issued guid-ance on institutional responsibilities for sexual harassment under Title IX, most higher education institutions revamped their policies to respond more quickly to reports of misconduct and increased educational efforts to train students and employees on preventing sexual assault, dating violence, and domestic assaults.
In addition, the Department of Education’s Office for Civil Rights stepped up its inquiries into how colleges and universities were handling sexual misconduct cases, investigating dozens of higher education institutions. The department’s efforts came as many women and men on campuses nationwide had been filing Title IX lawsuits against their colleges and universities, alleging that their reports of sexual assault were not taken seriously enough. Title IX requires that campus officials investigate reports of sexual harassment and assault, regardless of whether the police are involved.
Last year, under the Trump administration, the Department of Education rescinded the Obama-era guidance, released interim guidance, and said the department would develop new rules regarding Title IX responsibilities per-taining to sexual harassment. The depart-ment said the earlier guidance had ignored notice and comment requirements,
created a system that lacked basic ele-ments of due process, and failed to ensure fundamental fairness.
“Schools must continue to confront these horrific crimes and behaviors head-on,” DeVos said in announcing the interim guidance. “But the process also must be fair and impartial, giving everyone more confidence in its outcomes.”
Among the changes mentioned in the proposed regulations, higher education institutions would have the discretion to choose the evidentiary standards they use in sexual harassment cases, subject to some strict stipulations—either the preponderance of the evidence standard or the clear and convincing evidence standard. The Obama administration guidance had required educational institutions to use preponderance of the evidence a lower standard, to determine whether accused students should be disciplined or expelled. The proposed rules would allow colleges
and universities to establish an appeals process and pursue informal resolution, such as mediation, if all parties voluntarily agree. Victims-rights advocates have criticized elements of the proposed regulations, saying they would discourage survivors from reporting misconduct and make campuses less safe for students. But groups such as the Foundation for Individual Rights in Education have praised the developments as positive steps to increase due process on campuses.
The proposed regulations pull back from the previous requirement that colleges and universities finalize complaints about sexual harassment and violence within 60 days. “That 60-day rule was sometimes difficult for campuses to adhere to,” said Kevin Kruger, president of NASPA (Student Affairs Administrators in Higher Educa-tion). “So that’s a place where campuses now have felt a little less constrained.”
Many expect the proposed regulations to lead to a drop in the number of reported cases of sexual harassment. A Department of Education analysis estimated that the new rules for handling sexual harassment on campus would reduce the number of sexual harassment complaints by 39 percent and save colleges and universities millions of dollars, according to The New York Times.
AREAS OF CONCERN
Higher education leaders and university lawyers believe campuses will proceed with caution before adjusting their procedures to respond to new federal rules.
“While the Obama administration’s focus on Title IX and campus sexual assault was extremely difficult for higher education, on many campuses it brought about some real and important change,” said Tim McDonough, AGB vice president for government and public affairs. “We’ve seen a change in cultural attitudes on campuses. We’ve seen a real change in college and university responses and procedures. All the optics around campus sexual assault have changed dramatically in the last four or five years.”
Public awareness about sexual assault and harassment also has grown in the last couple of years, with the #MeToo movement shining a light on continuing problems with these issues in the culture at large. “What we all want to see, including trustees, is progress,” said Pamela Bernard, vice president and general counsel for Duke University and Duke University Health System. “We are dealing with an issue that is largely cultural, and one that permeates our society. It manifests itself in almost every institution in our society. It’s important to ensure that every student who comes into the university understands the importance of respect.”
Board members should be aware of their institution’s policies and procedures for addressing sexual harassment and ask questions about them, higher education leaders and attorneys advise. Because trustees also have a fiduciary responsibility for ensuring proper management of enterprise-level risk, the proposed rules suggest a few areas of concern for governing boards and presidents.
• Definition of Sexual Harassment. The Education Department’s proposal would significantly change the definition of sexual harassment. In addition to established federal and case law regarding sexual assault and quid pro quo sexual harassment, sexual harassment would be defined as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person access to the school’s education program or activity.” The previous Obama-era guidance defined sexual harassment as “unwelcome conduct of a sexual nature” that included “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”
• Evidentiary Standards. The proposed regulations would allow institutions to choose either the “preponderance of the evidence” or “clear and convincing evidence” standard in sexual harassment determinations, but only if the same standard is used for employee allegations of sexual harassment and other student conduct violations that carry similar penalties. “Board members should note this change carefully and ensure that their policies are compliant with federal as well as state law, which could be more restrictive,” McDonough noted.
• Mediation Risks. While many colleges and universities may favor having the opportunity to use mediation or restorative justice processes when handling sexual misconduct cases, those options also present institutional risks. While mediation or restorative justice processes may sometimes be in the best interests of both the survivor and the accused, victim advocacy groups worry that the people on campus handling the mediation or restorative justice processes may not be adequately trained. In addition, to avoid publicity, institutions could pres-sure students to take those options rather than pursue a campus conduct hearing. “It opens up the process to be one that has some challenges for the victim of the sexual violence,” Kruger said. Trustees, in being mindful of enterprise-level risk management, will want to ask questions to be sure that if their campus decides to offer mediation or restorative justice, the people delivering those options are adequately trained, he added. Otherwise, an institution could face civil lawsuits for failing to have sufficiently trained people involved.
• Expectation to Investigate. Two major changes involve new reporting requirements that affect when institutions must investigate incidents of sexual harassment. Under the new provisions, institutions must have “actual knowledge” of an allegation of sexual harassment. Previously, the Education Department expected schools to investigate if institutions “reasonably should” have known that sexual harassment occurred. The proposed regulations require institutions to investigate only if the Title IX coordinator or an official with appropriate authority to “institute corrective measures” is aware of the incident, meaning that informing a professor or resident advisor would no longer be sufficient. Additionally, colleges and universities must investigate an incident only if it occurred on campus or during an official function that the institution promoted or sponsored. “That’s a huge departure,” Kruger said, and state and federal courts have supported the idea that campuses should be considering complaints from students about off-campus behavior, in addition to any criminal court proceedings. The off-campus incidents also can directly affect the learning environment for students when they are back on campus. “The criminal justice system has largely failed for sexual violence cases in our society because of how difficult it is to get a conviction,” Kruger said. “So when you have students living in the same space and going to the same classrooms, we would strongly argue that resolving this in a timely way on a campus is critically important.”
• Cross-examination Changes. In a departure from current practice, the proposed rules also would allow both the victim and the accused to cross-examine each other in campus judicial hearings, through a lawyer or other advisor. “We would take issue with that, as it creates a somewhat hostile environment that will probably result in fewer victims bringing cases for-ward,” Kruger said. Campus hearings are not intended to replicate a court of law, he noted, and ideally include an educational component. “We want to increase the ability of victims of sexual violence to be able to bring their cases forward.”
GUIDANCE FOR BOARDS
College and university governing boards must pay attention to the coming federal rules changes regarding Title IX and ask questions to make sure the president and staff have implemented adequate policies and processes to be in compliance, higher education leaders and attorneys say. “The main role of a trustee is to ask the right questions,” Bernard noted. Board members should make sure their institution has policies to promptly and effectively handle com-plaints and ensure fairness in disciplinary processes. Their institutions also will need to grapple with issues related to how the new rules will reconcile with state laws and ongoing state and federal court decisions.
But trustees also are charged with taking the long view and setting the tone for campus culture. “In addition to meeting clear legal obligations, institutions have an obligation to examine aspects of campus culture that might contribute to sexual misconduct,” AGB noted in its 2015 Updated Advisory Statement on Sexual Misconduct. The statement outlines broad recommendations for questions and issues that college and university boards, administrative leaders, and attorneys should consider.
AGB’s advisory statement includes recommendations that the full board discuss legal developments and national trends regarding Title IX and sexual harassment, as well as the institution’s policies in that area and how those issues on campus affect the overall institutional climate. Presidents should make sure boards are regularly briefed. And boards should ask institutional leaders about whether the campus has proper training on a regular basis for students, faculty members, and other employees to identify, report, and respond to sexual misconduct.
Yet boards sometimes receive high-level reports indicating everything is fine—the institution does trainings, conducts investigations, or just hired someone new to manage related policies. These assessments may not adequately evaluate how the institution is truly performing on these issues. Without micromanaging specific campus processes, boards should ask probing questions about the reports they receive, noted Natasha Baker, a higher education lawyer with Hirschfeld Kraemer, which represents a consortium of about 130 colleges and universities nationwide.
“They should be asking about numbers of investigations, types of investigations, and how the findings are coming out,” she said. “They should be asking who has been designated as the required Title IX reporter, how those people know they’ve been designated, and how much training they receive. I just think boards need to press a little bit more.”
Kruger advises that beyond making sure they are in compliance with the final Title IX rules when they are issued, campuses should also do a climate survey that allows students, in a confidential way, to indicate what kinds of experiences they’ve had regarding sexual harassment and discrimination. “That gives the leaders and the board a sense of what the nature of the culture is on campus,” he said. Board members can then ask questions about what the campus is doing to try to alter the culture, including raising awareness for victims on how they can report problems and engaging in educational efforts aimed at prevention.
As trustees endeavor to set the right tone for their institutions regarding larger issues surrounding Title IX and campus culture, they should begin by scrutinizing their own behavior and board composition, as well as how they go about choosing chancellors or presidents, according to Peter McDonough, vice president and general counsel for the American Council on Education. Boards should also make sure the president and staff members have sufficient financial resources and administrative structures to advance the campus culture in addressing sexual harassment.
The forthcoming final rules regarding Title IX are just one factor for institutions to consider in their ongoing efforts to address a continuing set of issues regarding equity, fairness, and a safe learning environment for all students, McDonough added. Boards have a duty to make them-selves aware and ask difficult questions in a proactive, rather than reactive, way.
“It’s not just an incident or crisis that becomes a reason for a board to become attentive in this area,” McDonough said. “From a board standpoint, the oversight mantra is ‘Do the right thing.’ The challenge becomes how you define the word ‘right.’ That needs some reflection and some clarity and, at times, probably some bravery.”
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