This is the second part of NASPA’s Initial Analysis of the proposed rule on Title IX, released by the Department of Education in mid-November and opened for a 60-day public comment period on November 29, 2018. The first part addressed NASPA’s overarching comments, and provisions of the proposed rule relating to the narrower definition of harassment and scope of institutional responsibility. This post will address aspects of the formal grievance procedures related to implications for institutional staffing and the pseudo-legal process proscribed in the proposed rule. Additional information is now available addressing issues related to informal resolution and required cross-examination by third-party advisors, with the series wrapping up with a discussion of the standard of evidence, timeline for adjudication resolution, and changes to the religious exemption from Title IX.
NASPA also held three information sessions about the proposed rule the week of December 3; you can access recordings for all three sessions in the NASPA Online Learning Community. Additional analysis on many of these topics is already available from a wide range of associations and organizations and NASPA’s Research and Policy Institute will release more in-depth analysis, including links to research and sources of data, on several of the issues below in early January to assist student affairs professionals in responding to the call for comment.
Increased staffing and capacity concerns for both large and small institutions
Aspects of the proposed rule raise concerns around institutional staffing and capacity for both large and small institutions. Changes to policies on campus indicating who is considered a responsible employee and the narrow definition of what constitutes actual knowledge, are discussed in the section on Scope of institutional responsibility in Part I. These changes, combined with requirements for Title IX Coordinators to arrange for all supportive services for students, the number of individuals required under the proposed formal grievance process, and the costs for training and retraining of students, faculty, and administrators are all areas of concern.
Supportive services coordination. The proposed rule clarifies that institutions must provide supportive services to students even if a formal grievance process is not initiated (83 FR 61462 §106.30), however it also places the responsibility for coordination of supportive services in all cases on the Title IX coordinator, which can be burdensome. For large campuses, with a number of students who may be seeking supportive services for incidents that both fall within the institution’s scope of responsibility and those that do not, the requirement could place significant administrative work on Title IX coordinators. NASPA recognizes and appreciates that, as noted by the Department in the preamble to the proposed rule, this burden should not fall on students seeking support. However, there are already trained advocates at many institutions who are providing these supportive measures, and respondent support persons who provide them to respondents. Given the Title IX Coordinator is now also the sole party on campus who can initiate a formal grievance, this seems an unnecessary burden to add specifically to their responsibilities.
Number of individuals required for formal grievance procedures. The Department expresses concern about the single investigator model used by some institutions to investigate and adjudicate campus conduct cases involving accusations of sexual harassment. Advocates for the single-investigator model claim that it allows for a more trauma-informed process by reducing the number of individuals to whom parties in an investigation are required to reveal details personal and private information and it allows for a single, well-trained professional investigator to make evidence-informed, impartial decisions. Detractors, however, point to the increased odds that personal bias on the part of the investigator could influence a case in one direction or another. The process proposed by the Department, however, would require as many as seven separate individuals to be involved in formal adjudication, all of whom must be trained on Title IX protections, the Title IX grievance process, and their role in it sufficiently to ensure that processes are implemented fairly and equitably. The number of distinct individuals required for formal investigatory and grievance processes would set many institutions up for potential violations by expecting them to behave not only as courts of law, but also as expert investigators and attorneys in implementing and overseeing overly legalistic procedures. An appropriate middle-ground that would address both the concerns of the parties involved as well as the need to protect against bias could be implemented instead.
Increased costs for training and retraining. In the preamble to the proposed rule, the Department addresses the costs of training for the individuals who would need to be involved in the formal grievance procedures. Notably absent from these costs, however, are the costs of training for informal resolution processes and the costs of retraining all members of the campus community on the proposed rules changes responsible employees and scope of institutional responsibility for students, faculty, and staff. Students especially, having been told for the last seven years that they can report incidents to anyone at their institution and expect an institutional response, the changes in the proposed rule will result in confusion and may leave students who believe they have informed a responsible employee with no response. These costs are not included in the cost accounting provided by the Department, but are costs all institutions will incur.
Ubiquitous references to court and legal processes
NASPA is also generally concerned with the overall heavy use of legalistic language and requirements for institutions to create pseudo-legalistic processes throughout the proposed rule. In their 2014 commentary Courts or Campuses? Different Questions and Different Answers for the Association of Student Conduct Administration (ASCA), Drs. D. Matthew Gregory and Laura Bennett state that “legal and legislative guidance demonstrates that best practices are not to create a mock courtroom, but instead to ensure a fundamentally fair administrative process that offers the most effective ways to allow students to share their perspectives and feel that they have been respected and heard." Noting that campus conduct processes are about students’ relationships with the institution, Drs. Gregory and Bennett note that campus conduct processes “should be conversational, rather than adversarial, in nature.” These best practices themselves are founded on The General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline at Tax Supported Institutions of Higher Education, published by the United States District Court for the Western District of Missouri in 1968. The General Order states clearly that “[t]he attempted analogy of student discipline to criminal proceedings against adults and juveniles is not sound.” In the proposed Title IX rule, however, the Department repeatedly draws parallels between adversarial court and legal proceedings and campus adjudication processes in their rationale, particularly with respect to the involvement of third-part advisors, including privately-retained legal counsel, for participants in cross-examination during live hearings, as will be discussed in greater detail next week.
Further, administrative regulation by the Department of Education is also not a legal process and the role of the Department is to provide oversight and appropriate corrective action when institutions make mistakes - which is an expected part of the process. The burden for implementing the proscribed process could be very heavy and the opportunities for mistakes are very high, which would leave institutions – and the individuals charged with responsibility for these processes – vulnerable.
Again, the four posts in this series provide a recap of NASPA’s December information sessions on the Title IX NPRM and the rulemaking process, the recordings of which are available through the NASPA Online Learning Community. The first post addresses NASPA’s overarching comments, and provisions of the proposed rule relating to the narrower definition of harassment and scope of institutional responsibility. The second post in this series addresses concerns around staffing and responsibilities for Title IX coordinators and the conflation of campus conduct processes with criminal justice process. The third reviews proposed changes related to informal resolution and mandatory cross-examination. The final post in this series covers the evidentiary standard, timeline for resolution, and changes to the religious exemption process for Title IX.
Check out the other posts in this series for more information on the key provisions of the Title IX rule for student affairs professionals! If you have questions about the proposed rule or the process for submitting a comment through the Federal Register, please feel free to reach out to NASPA director of policy research and advocacy, Teri Lyn Hinds at firstname.lastname@example.org.
 For a refresher on the role of the Executive Agencies and the Rulemaking Process in our governance, please see our October 2017 post The Rulemaking Process: Differences in Federal Regulatory and Sub-regulatory Guidance.