Recognizing the Role of Boards in Title IX

By January 23, 2019 March 7th, 2019 AGB Federal & State Action

Dear Secretary DeVos:

On behalf of the Association of Governing Boards of Universities and Colleges (AGB), we welcome the opportunity to respond to the call for public comment regarding the Department of Education’s (the Department) new proposed federal regulations, “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Aid,” 34 CFR Part 106.

We agree that certain aspects of these proposed regulations could provide more effective support for students, and the institutions who serve them, in addressing sexual harassment and discriminatory behavior. However, we urge that several of the proposed provisions be eliminated or changed in order to more effectively achieve those results by recognizing the essential role of the governing boards of America’s universities and colleges in this process. Governing boards have a special responsibility under the law and best governance practices to oversee the colleges and universities they serve: they are fiduciaries. They are subject to the legal duties of care and obedience to ensure that their institutions are compliant with their mission and with the law.

In the context of complying with the terms of Title IX’s anti-discrimination principles and the proposed regulations, these responsibilities include: to ensure a safe campus climate; to ensure that both the survivor and the accused are treated fairly; to ensure that access to education is not impeded; to protect the assets of the institution entrusted to their care, including the financial resources that will be required to comply with more rigorous hearing rules; to secure clarity from the Department as to the intended reach and application of the proposed regulations so that they can make appropriate decisions; and to preserve the rights of institutions to handle sexual harassment and discriminatory conduct cases in accordance with their own honor codes and internal processes as well as with federal and state law.

The role of governing boards must not be reduced to acting as a referee over processes for combatting sexual harassment that are pre-determined by the Department and offer insufficient opportunities for boards’ essential policy direction and stewardship. AGB advocates in favor of changing the principles and terms of the proposed regulations to permit governing boards greater latitude to exercise their fiduciary discretion and good faith judgment in determining the approach, processes, and resources that will best accomplish effective compliance with Title IX and promote a safe and secure campus community for all students.

The Association of Governing Boards

AGB is the premier organization centered on governance in higher education, serving more than 1,300 member boards, 1,900 institutions, and nearly 40,000 board members. As fiduciaries, board members are ultimately accountable for fulfilling institutional mission, ensuring academic quality and financial health, and reviewing and ensuring the continuing effectiveness of all major policies. Many boards have policy authority across institutions and are expected to work with institutional leadership toward establishing effective policies for many colleges or universities. This expectation can only be met if boards understand and regularly assess and strengthen their institutions’ policies and practices as they relate to all forms of sexual harassment.

This responsibility exists not just because of Title IX and applicable state law, but because it is in the best interest of the institution and the students which it serves. Board members recognize that ensuring a safe and supportive learning environment is fundamental to the good health and positive campus climate of a higher education institution, and over the last several years our members have made great strides in collaboration with institutional leaders to advance priorities such as promoting student mental and physical health, supporting survivors, protecting the rights of the accused, and establishing appropriate disciplinary processes.

AGB has long been on the record in making the case that university and college governing boards have a fiduciary duty to address issues of sexual harassment. This is consistent with their responsibility for mitigating all institutional risk for the institution. A board that is engaged with its institutional leaders in addressing sexual harassment—asking difficult questions, challenging assumptions, and introducing innovative ideas—will be equally motivated to improve the quality and effectiveness of all institutional policies and outcomes. AGB believes this effort must also be collaborative—that the Department, and all higher education institutions, must continue to work together to better address the issue of sexual harassment at institutions across the country.

Governing boards are working tirelessly to affect the culture of their campuses in matters related to sexual harassment, drawing on some of the best ideas and innovative policies from peer institutions across the country. For example, last year at Howard University (DC) the board of trustees solicited feedback from students, faculty, and staff on the institution’s new Title IX policies, giving a voice to the entire campus community. During the 2017-18 academic year, Howard hosted more than 100 trainings for campus constituencies on issues relating to sexual harassment in partnership with Greek organizations, student government, the office of student affairs and other community organizations on campus. Other governing boards are responding in similar ways.

Key Provisions Providing Flexibility and Support for Students

We support the Department’s efforts under the proposed regulations to remedy continuing and pervasive problems under the jurisdiction of Title IX. Often, sexual harassment cases, by their nature, are difficult to address effectively in a manner that is fair to all. Giving institutions the needed flexibility to meet these challenges, and giving their trustees the support needed to fulfill their fiduciary duties while still ensuring accountability to the public trust, should be a prime goal of these proposed regulations.

For example, the elements of the proposed regulations allowing institutions the authority to resolve investigations using various methods of mediation and more emphasis on institutions making good faith efforts to investigate sexual misconduct allegations are welcome. Survivors should have the opportunity to make the right choice for themselves in pursuing resolution of the harassment. Specifically, the proposed section 34 CFR 106.45(b)(6) that would allow for informal resolution will permit complainants who do not wish to go through a full formal hearing process to seek other forms of resolution, including restorative justice or mediation. Students and institutions alike desire the power to settle these disputes in a productive manner rather than being arbitrarily forced into a one-size-fits-all solution. The provisions that protect survivors from feeling pressured into such alternative resolutions are both necessary and robust. Similarly, section 34 CFR 106.45(b)(1)(v) allows institutions to take longer than 60 days to investigate a claim if deemed necessary—allowing institutions to take the appropriate time to investigate issues thoroughly.

Regulatory Concerns

However, several elements of the proposed regulations are problematic and will not serve students or institutions effectively in protecting the rights of both survivors and the accused and in identifying and obtaining appropriate remedies where necessary. This letter focuses on a few key, inter-related areas of major concern to higher education fiduciaries. But overall, we are concerned about the overly prescriptive nature of the proposed rule and the effects such direction will have on institutions’ good faith compliance efforts.

Colleges and universities are educational institutions, not part of the criminal justice system, and lack the infrastructure to address academic or other disciplinary violations in a similar manner. The additional resources of setting up a quasi-judicial system is not in the interest of students.

Colleges and universities administer student disciplinary systems that enforce standards through education, prevention, and accountability. The most serious crimes under an academic code are dealt with in a different manner than those used in a court of law—the systems are parallel, are not mutually exclusive, and should not mirror one another to match expectations of the judicial system. The discipline of students in an academic setting is considered part of the teaching process, and staff responsible for overseeing these proceedings seek outcomes of demonstrated learning, changes in behavior, and protection for the campus community. Cases and situations handled by student disciplinary staff range from academic integrity and dorm room behavior to property damage and incidents of sexual harassment. Introducing an adversarial, courtroom atmosphere would fundamentally alter a process that allows students to share their perspectives and feel that they have been respected and heard.

Additionally, colleges and universities lack the resources, tools, expertise, and infrastructure to implement a judicial-style system as contemplated by the proposed regulations. Although institutions should bear the appropriate costs to reach the proper outcome for all parties involved, the Department should understand that the proposed requirements will not be easily manageable for every institution. Such a prescriptive court-like process would be extremely cumbersome and expensive for institutions to implement. In addition, it runs the substantial risk of causing more harm than good by discouraging legitimate complaints from being brought forward by those who do not want to go through such a process and “retraumatizing” survivors.

For example, section 34 CFR 106.45(b)(3)(vii) mandates a live hearing for cross-examination and questioning of both parties. We believe this requirement should be removed. In the preamble, the Department recognizes that direct questioning from an alleged perpetrator could be traumatic. However, allowing an advisor, who is very likely to be an attorney in many cases, to perform the cross examination is not a preferable solution. The prospect of having to answer a lawyer in this difficult cross-examination situation very likely will chill survivors’ wish to report an incident. And allowing one party to retain an attorney for the cross-examination while the other does not could put the latter at a distinct disadvantage, potentially exacerbating the power differential between the two parties. Thus, institutions will be under pressure to provide a comparable advisor for both parties, increasing costs and likely drawing additional legal interest in this area. The pressure to include attorneys could cause the process to further resemble a courtroom, distorting disciplinary proceedings not only for Title IX cases, but also for other institutional disciplinary cases.

Instead, we ask that this requirement be modified so each party has other opportunities to evaluate and challenge the credibility of the other party and any of the party’s witnesses. Many institutions, for example, currently (and successfully) accomplish this by allowing parties to submit written questions (including follow-up questions) to the investigator, the decision maker or the hearing panel. We believe that approaches like these provide a reasonable way to accomplish the goals that the Department seeks and would, in many cases, result in better, more accurate credibility determinations.

Similarly, using the phrase “due process” to describe the protections afforded students during Title IX investigations will give the mistaken impression that Title IX requires criminal trial-like federal constitutional protections for all sexual harassment proceedings. Rather than use judicial language, we believe that using a term such as “fair process” would better capture the evenhandedness, equitable treatment, and lack of bias that the Department and institutions and their governing boards seek for all the country’s campus community members.

If the Department insists upon using the term “due process,” we urge that the Department make clear in regulatory language that it is not signaling an expectation that all recipients, both public and private, will be required to observe constitutional judicial protections applicable to criminal defendants, and instead specify with precision that the “due process” protections it interprets Title IX as requiring are limited to those specified in the regulations.

The proposed regulations threaten to usurp the fiduciary authority of boards over institutional policies.

As discussed earlier, governing boards have a unique and important responsibility for the colleges and universities they serve. As institutional fiduciaries, board members are ultimately accountable for fulfilling institutional mission, ensuring academic quality and financial health, and overseeing all major policies. Essentially, boards bear ultimate responsibility for the stewardship and protection of their institutions’ human, physical, and financial assets—most especially the safety of the living and learning communities that they provide to students, faculty, and staff.

Several of the proposed regulations would override the authority of governing boards and instead purport to manage the development of campus policies from Washington. For example, the Department’s proposed section 106.45(b)(4)(i) will have the effect of specifying the evidentiary standard of proof used in all campus disciplinary hearings. The Department purports to offer institutions a choice: they may use either “preponderance of evidence” or the more stringent “clear and convincing evidence” as the standard of evidence in Title IX formal grievance proceedings. However, under the proposed rule, an institution that selects preponderance of evidence must adopt it in all other campus proceedings that carry the same disciplinary penalty, and it must use the same standard for student complaints as is used for employee complaints. Practically, this means that collective bargaining agreements, institutional governance decisions, as well as state-law-regulated and non-Title IX disciplinary policies and procedures will need to conform to this Title IX regulatory mandate if the institution elects to use the “preponderance” standard for student-on-student sexual harassment cases, but uses clear and convincing for other matters. Given the impracticality of such a global change across myriad campus matters, constituencies and processes, this proposal will force schools to use the clear and convincing evidence standard—making this a de facto federally prescribed standard. Such a heavy-handed federal regulatory solution is inconsistent with the Trump administration’s promise to reduce the amount of one-size-fits-all federal regulation imposed from Washington.

The Department should not usurp the authority of boards, micromanage campus disciplinary proceedings, nor should it mandate a federal standard that overreaches. Indeed, we believe this rule exceeds the Department’s statutory authority because, as a practical effect, it would dictate the standard of proof used in non-Title IX disciplinary proceedings, such as academic dishonesty proceedings, where the Title IX statute provides no such authority.

The proposed regulations will likely result in unintended consequences that could open institutions up to new risks, costs, and liability.

Numerous elements of the proposed regulations are overly prescriptive and would require institutions to make additional hires, add new processes and procedures, and remove the ability of staff to exercise sound judgment and flexibility. For example, prohibiting the “single investigator model” (as required by section 34 CFR 106.45(b)(4)) will increase costs for some institutions, who will now be forced to employ multiple individuals serving in distinct roles and provide them with adequate training. Asking rural or smaller institutions to shoulder these costs, especially those that lack full-time counsel, will clearly be unduly burdensome, particularly if these institutions are also pressured to hire outside counsel for the live hearings. Additionally, adding so many new requirements through regulation will invite litigation and increase costs. No matter how closely colleges and universities try to adhere to the letter and spirit of the proposed rules, they will likely face subsequent lawsuits from complainants, respondents, or both, especially when addressing uncertainties around the evidence rules, issues surrounding the live-hearing and adequacy of advisors, and what constitutes a “program or activity” under proposed section 34 CFR 106.44(a).

The Essential Role of Governing Boards

Colleges and universities have made great strides in combating and remedying incidents of sexual harassment and other discriminatory conduct in recent years. Their board members are greatly concerned about these issues and are focused on doing the right thing—especially in fulfilling their fiduciary duty to protect and promote the safety and well-being of the institution’s students. However, in many key aspects, these proposed rules will have the effect of impeding the ongoing devoted efforts of the board members of America’s universities and colleges to: ensure fair treatment for all students; to maintain a civil campus climate; to develop and implement fair and equitable policies regarding sexual harassment and discriminatory conduct within their financial and staffing capabilities to do so; to undertake thorough and fair investigations; to preserve the right of their institution to carry out its own internal processes for remedying discrimination and misconduct while also complying with the mandates of Title IX; and most importantly, to exercise their independent fiduciary judgment as to the most effective course of action in addressing sexual harassment for their institution as the law and good governance principles require.

Accordingly, as the Department develops these proposed regulations, AGB urges the Department to be especially mindful of the essential, and legally-mandated, fiduciary role of university and college governing boards and the inclusion of board members in that process, and to adopt the particular recommendations and approach we have requested in these comments.