November 21, 2018
Dear Campus Community,
As you may or may not be aware, Secretary of Education Betsy DeVos released her proposed guidance for Title IX early on November 16. Once this proposed guidance is published in the Federal register-a daily publication of the US federal government that issues proposed and final administrative regulations of federal agencies - the Department of Education must initiate a 60-day public notice and comment period during which we have the opportunity to raise our voices and provide our opinion on the proposed changes. The guidance has not yet been formally published and the 60-day notice and comment period has not yet been initiated.
The staff of the Phoenix Center at Auraria | Anschutz (PCA) are currently working to provide you with a close-read of the proposed changes in order to inform your engagement with the notice and comment period. Know Your IX, a survivor- and youth-led project of Advocates for Youth, has released a statement which seeks to illuminate what the guidance means for Title IX programs and universities receiving federal funding moving forward. They have outlined a number of their concerns for the proposed guidance and, in doing so, summarized many of the proposed changes. We encourage you to read the statement in full. Additionally, we have provided an informed summary of the proposed guidance below:
● The proposed rule only requires schools receiving federal funding to investigate those complaints of sexual harassment (a catch-all term utilized in the document to include the full spectrum of sexual violence) which are considered to seriously work to deny a person’s access to their education. Instances of sexual violence which occur outside of a university program – such as off-campus activities – would not be required to be investigated.
● The proposed rule would allow schools to adopt either a preponderance of the evidence standard or a clear and convincing evidence standard. A clear and convincing standard means that the evidence supports that an allegationis highly and substantially more likely to be true than untrue. The clear and convincing standard is a higher standard than “preponderance of the evidence” which is what is currently utilized in Title IX investigations. The preponderance of the evidence standard requires that more than 50% of the evidence points to something being true and is the standard of evidence in civil litigation.
● The proposed rule would allow schools to utilize “informal resolution procedures”- commonly referred to as mediation – in place of formal investigatory and sanctioning procedures.
● The proposed rule makes it clear that a university’s treatment of both the complainant and respondent could constitute sex discrimination (i.e. a respondent [or perpetrator] could sue the university for sex discrimination if they felt they were treated unfairly during the process.)
● The proposed rule makes significant changes to formal investigation procedures including requiring a live hearing, allowing for cross-examination by “advisors”, and requiring a school to provide an advisor if a participating party does not otherwise have one.
● The proposed rule separates a university’s requirement to investigate all formal complaints from a university’s requirement to respond to all known reports.
● The proposed rule changes what constitutes “actual knowledge” of sexual violence to be only those statements made directly to Title IX Coordinators or those who have the ability to institute corrective measures. This means that any statement made to a professor or other university staff member does not initiate a university’s duty to respond. According to the proposed rule, if this staff member or employee chooses not to report the instance to one of the individuals mentioned above the university is not liable.
In addition to these proposed changes, the specific process outlined for participating in the notice and comment period has the ability to create an unnecessary barrier for individuals and organizations who are not extremely well-resourced and well-versed in this topic area. For this reason, the PCA will be working with campus and community partners to host a series of notice and comment style events. These events will be hosted in the coming weeks and will work to assist our campus community in engaging meaningfully with the notice and comment period. Please continue to check our social media and campus advertisements for information about these important events.
Finally, the PCA wishes to remind the campus community that we will continue to support survivors of interpersonal violence with survivor-centered, trauma-informed practices steeped in deep belief in survivors’ lived experiences and expertise around their own healing. We will continue to provide emotional support, guidance in navigating systems, and referrals to other support agencies. The PCA’s commitment to serving survivors of interpersonal violence and their loved ones is not in any way altered by the proposed guidance released by Secretary DeVos. We will continue to serve the students, faculty, and staff of the Auraria and Anschutz campuses with compassion, empathy, and conviction.
If you or anyone you know is experiencing adverse reactions to the proposed guidance, please do not hesitate to come by our offices or call our 24/7 helpline (303-556-CALL) for support.
We will keep you informed as we learn more.
The PCA Staff