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Colleges Lodge Concerns Over Tweaks to Title IX

The Association of Independent Colleges & Universities in Massachusetts (AICUM), of which Boston College is a member university, issued public comments stating the universities’ concern over proposed changes to Title IX on Jan. 23. The comments are overwhelmingly negative, noting that “AICUM’s member institutions are concerned that many aspects of the proposed regulations may undermine rather than advance Title IX’s very purpose—to provide legal protection against discrimination on the basis of sex.”

AICUM’s comments come at the end of the 60-day period for universities to provide comment on the changes. In November, the Department of Education (DOE), under Secretary Betsy DeVos, released proposed changes to regulations regarding the implementation of Title IX, a federal law that prohibits sexual discrimination in education programs that receive federal funding.

The current Title IX policies were implemented by the Obama administration in an effort to protect those who have experienced sexual violence, but some have characterized them as violating the due process rights of those accused of sexual violence.

The proposals are intended to enhance the due process rights of the accused but have seen blowback.

In a statement, Richard Doherty, president of AICUM, summarized the document. AICUM is worried that the proposals may deter victims from reporting sexual violence, impair all involved in the process, add significant time and expense to investigations, and restrict schools from tailoring their conduct processes as they see best.

As a member of AICUM, the comments represent BC’s stance during the notice and comment period for the Title IX proposals.

“The AICUM comments are the result of collaborative discussions among the legal counsel of a number of AICUM member institutions, including Boston College,” said Nora Field, deputy general counsel at BC. “There was wide consensus among the group as to concerns about some of the proposed regulations and the challenges they would present for all involved.”

Additionally, the Undergraduate Government of Boston College and the Jesuit Student Government Alliance, of which UGBC is a member, joined 75 other colleges in signing onto a comment stating their concern with the proposals.

A notable opponent of the proposals is Boston Mayor Martin J. Walsh, BC ’09, who voiced his opposition in January.

Among the more controversial of the proposals is the cross-examination mandate, which would allow each party’s adviser to question the other party about the allegations. AICUM strongly criticized the proposal, arguing that it would undermine the purpose of Title IX.

“This restrictive mandate is inappropriate for many institutions and the underlying requirements may deter complainants from reporting discrimination and harassment and undermine Title IX’s objective of protecting the educational environment,” the document said.

AICUM argues that cross-examination is neither necessary nor beneficial, arguing that it will deter some victims from reporting sexual violence. Further, AICUM worries that when students come forward, the cross-examination will intimidate them and make fact-finding more difficult.

AICUM recommended that live hearings be permitted, but determined on a case by case basis.

The proposals also mandate the recipient institutions dismiss claims that do not constitute the definition of sexual harassment as defined by the DOE, even if proved true. AICUM argues that schools should be free to pursue sexual misconduct allegations as they see fit.

AICUM also disagreed with the proposal to mandate the same standard of proof across all disciplinary conduct investigations.

“Institutions should continue to have the discretion to choose the preponderance of the evidence or clear and convincing standard for Title IX proceedings, without regard to the standards that apply to other campus conduct proceedings,” the document said.

The proposals would also require institutions to “[p]rovide both parties an equal opportunity to inspect and review evidence obtained as part of the investigation,” including evidence that is not relied upon to make final determinations. Institutions would have to provide copies of the evidence, which AICUM argues would violate students’ rights to privacy and reveal  confidential information.

The prospective changes would also keep recipient schools from restricting parties from discussing the allegations, which AICUM believes could violate parties’ privacy.

The DOE proposals also require Title IX Coordinators to file formal complaints when reports are made. AICUM notes that many victims only wish to report inappropriate conduct rather than go through the formal complaint process and recommends that this still be permitted. AICUM also suggests that officials other than Title IX Coordinators be permitted to file formal complaints.

Field believes that the DOE will take these recommendations into consideration.

“I can’t predict how much the regulations might change after the notice and comment period.  More than 89,000 comments have been submitted, so it’s going to take the Department of Education quite a while to review those,” Field said. “Under the Administrative Procedures Act, the Department has an obligation to consider the comments when drafting the final rule, so I would be surprised if no revisions were made.”

Featured Image by Kaitlin Meeks / Heights Senior Staff

February 4, 2019