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NASPA's Initial Analysis of the Proposed Rule on Title IX, Part III

Policy and Advocacy
December 18, 2018 Jill Dunlap NASPA

There has been much discussion and analysis of the Notice of Proposed Rulemaking issued by the Department of Education since it was published on November 16. Groups of faculty have issued statements, and other groups of educators have come together to educate and organize the public about issuing comments to the proposed rule. NASPA’s policy and advocacy team has already shared two blogs on other aspects of the proposed rule, one covering the narrowing of the definition of sexual harassment and the changing nature of the scope of institutional responsibility and the second on the concerns around the need for increased staffing and capacity and the increasing conflation of Title IX and criminal justice processes. This is the third post in the series covering the proposed changes in Title IX regulations related to informal resolutions and mandatory cross-examination. A fourth post with discussion of the evidentiary standard for adjudication, the timeline for resolution, and changes to the religious exemption process is also available.

Informal resolution

The Department has opened the door to the possibility for institutions to use informal resolution procedures in place of formal grievance proceedings for incidents of sexual harassment that fall under Title IX (83 FR 61462 §106.45(b)(6)). This is a marked departure from previous Department guidance that expressly prohibited the use of informal resolutions, and specifically mediation. The proposed rule not only allows institutions to implement informal processes, but specifically mentions that mediation is allowable.

This change has caused a rather nuanced debate among practitioners, and not necessarily along the respondents’ rights versus complainants’ rights lines that seem to divide opinions on other areas of the proposed rule. Many advocates have long recognized the need for the availability of informal, or least less adversarial, adjudication options for complainants. Many, many survivors will articulate that they don’t want a respondent to be removed from campus or sanctioned formally, mostly because they don’t feel that what has happened to them was serious enough to report[1]. Complainants will often indicate instead that they want the person to know that what they did was wrong. Under previous guidance, campuses were hesitant to engage in anything short of formal Title IX investigations and adjudication for sexual misconduct.

Thus, the Department’s permission to allow less adversarial processes is being hailed by some student affairs professionals as a welcome change. The provision is causing pause for many though. Specifically, the Department has been very prescriptive in some areas of the proposed rules, around formal grievance procedures, who is to conduct them, and the training those individuals are required to have. But on the topic of informal resolutions, the Department has stated very little other than indicating that informal processes are allowable. There is no mention of training required for those who would facilitate informal processes, and no words cautioning institutions against the danger of coercing students into informal processes. Specifically, the Department states that

Informal resolution options may lead to more favorable outcomes for everyone involved, depending upon factors such as the age, developmental level, and other capabilities of the parties; the knowledge, skills, and experience level of those facilitating or conducting the informal resolution process; the severity of the misconduct alleged; and likelihood of recurrence of the misconduct. (83 FR 61479)

Yet nowhere in the proposed rule does the Department specify what that facilitator training or experience might entail, or even that the process must be overseen by someone formally trained in the kind of resolution agreed to by the parties. Institutions shouldn’t be left to guess what appropriate training or experience is necessary for staff who are charged with conducting informal processes.

Another major concern is the inclusion of mediation as an informal resolution option. Mediation is defined as a process in which two parties come together with a neutral third-party facilitator to help the parties come to a mutually agreeable resolution. There is no requirement for any party in a mediation process to take responsibility for harm. This is quite distinct from other options now available to institutions, including restorative justice.

Restorative justice gets included under the umbrella of informal resolution processes, even though many restorative justice practitioners argue that the training and facilitation processes involved are far from informal. Restorative justice processes are typically initiated at the request of the survivor or complainant and requires the admission of harm by the respondent, which gets at the very heart of what many survivors are seeking in informal processes.  For more information on the differences between restorative justice and mediation processes, check out this brief from the Campus PRISM Project. These distinctions, however, are not drawn by the Department. The lack of specific guidance in this area in the proposed rule is a cause for concern for institutions about what is allowable and what is not. The lack of clarity may result in increased liability for institutions, either from the Department or from participants in the process if they feel it was not properly conducted.

Cross examination and third-party advisors

Another area of the proposed rule which has drawn significant criticism from student affairs practitioners who work in campus conduct adjudication is the requirement that campuses must allow for cross examination between parties in a live hearing. In the preamble to the proposed rule, the Department repeatedly asserts that respondents have been consistently denied the ability to question their accusers in sexual misconduct proceedings, resulting in a trampling of respondent’s rights to a fair and equitable process. Outside of a few high profile lawsuits referenced in the preamble, however, there is little evidence to support that institutions are widely using unfair processes to adjudicate campus conduct violations.

This provision creates a more adversarial process for adjudication of campus conduct incidents, one that is repeatedly and intentionally conflated with criminal justice processes in the preamble to the proposed rule. The formality of criminal justice proceedings, in addition to the significant retraumatization that participation in these processes cause survivors, have been widely documented in research as contributing to low reporting rates by survivors. One study even found that survivors viewed the formality of reporting to a Title IX office intimidating, which mirrors the reasons that survivors give for not reporting to law enforcement[2].  Even of those survivors who do report through the criminal justice system, the attrition rate is incredibly high due to a multitude of reasons, including the length of criminal justice processes, the disruptions to their lives as a result of participating and the treatment they receive by law enforcement and criminal justice personnel, among others[3]. Additionally, the stress of having more criminal-justice-like processes on campus inevitably increases the stress on respondents as well, turning campus conduct proceedings into an artificially pseudo-legal system. This provision doesn’t help ease the burden on either party involved.

Additionally, the proposed rule requires institutions to allow for privately-retained lawyers to serve as advisors. This again heightens the adversarial nature of the live hearing process, and sends a message to both parties that legal counsel is a necessity[4]. This provision, when combined with requirements for institutions to provide an advisor (but not necessarily an attorney) if either party does not retain their own, also raises significant equity issues. If either party is unable to incur the significant costs of retaining legal counsel, they find themselves at the mercy of whatever advisor the institution can provide. If there is a perception by complainants or survivors who are provided legal counsel that the institution-provided advisor isn’t adequate, the institution could be held liable. The costs that will be incurred by institutions in order to comply with this provision were outlined in Part II of this blog series.

Both the informal resolution and cross-examination provisions within the proposed rule have significant repercussions in terms of the impact on students and institutional liability. Student affairs professionals working on institution-wide comments to the proposed rule should carefully consider the impact of these provisions and where applicable, the additional costs the institution may incur if these provisions are included in the final rule. Where possibly, adding detail and data about the campus adjudication processes on your campus in your institutional comments, and providing specific suggestions for alternative approaches that would allow for more fair and equitable processes will aid the Department in making appropriate adjustments to the rule.

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. Our initial analysis of the Title IX proposed rule wraps up by looking at the standard of evidence, timeline for adjudication resolution, and changes to the religious exemption from Title IX. 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 research and practice, Dr. Jill Dunlap, at [email protected], or director of policy research and advocacy, Teri Lyn Hinds, at [email protected].

[1] Felson, R., & Paré, P. (2005). The Reporting of Domestic Violence and Sexual Assault by Nonstrangers to the Police. Journal of Marriage and Family, 67(3), 597-610. Retrieved from http://www.jstor.org/stable/3600191

[2] Holland, K. J., & Cortina, L. M. (2017). “It happens to girls all the time”: Examining sexual assault survivors’ reasons for not using campus supports. American journal of community psychology59(1-2), 50-64.

[3] Lonsway, K. A., & Archambault, J. (2012). The “justice gap” for sexual assault cases: Future directions for research and reform. Violence against women18(2), 145-168.

[4] In their estimates of the cost for implementing the proposed rule, the Department indicates that their assumption is, in fact, that both parties will retain private counsel: “Given that our estimates assume all parties obtain counsel, we do not believe that [the requirement for a third-party advisor to conduct cross-examination] would result in an increased [institutional] cost not otherwise captured by our estimates.” (83 FR 61488)