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

Policy and Advocacy
December 20, 2018

Attention to the proposed Title IX rules issued by the Department of Education on November 16 remains unabated on college campuses and in the media, even as the fall academic term comes to an end. Some members of Congress joined activists this week on social media, indicating their opposition to the proposed rule by using the hashtag #handsoffIX. Campuses across the country are hosting comment writing sessions and activism on viewpoints both in opposition to and in support of the proposed rule remains high. This post is the fourth and final installment of NASPA’s policy and advocacy team’s initial analysis of the proposed rule. The first covered the narrowed definition of sexual harassment and changes to the scope of institutional responsibility; the second post covered the concerns around the need for increased staffing and capacity and the criminal justice-like nature of the process under the proposed changes; and the third post addressed the addition of informal resolutions and mandatory cross-examination under the proposed rule. This final post addresses three more areas of concern: religious exemptions to compliance with Title IX; the elimination of resolution timelines; and standards of evidence proposed by the Department.

Religious exemptions under Title IX

Since 1979, religious institutions have been allowed to request an exemption from compliance with Title IX if compliance is in conflict with the institution’s religious tenets. Prior to and during the Obama administration, applications for the exemption, which were obtained by institutions submitting a letter to the Department of Education requesting the exemption, were relatively rare. In 2014, Title IX protections were expanded to include protection for transgender students, which resulted in 232 schools requesting exemption from Title IX. In 2016, and largely thanks to the activism of trans and gender non-binary students and the Human Rights Campaign, the Department began publishing the list of institutions that had been granted the exemption. Fearing damage to their reputations, the publication of the list led to some institutions withdrawing their requests for exemption. The argument was that some schools were using religious exemptions to justify discriminating against trans and gender non-binary students, LGBTQ students, and pregnant students. The National Center for Transgender Equality and the Movement Advancement Project have provide more detail in their great timeline of federal enforcement of LGBT rights under Title IX.

The list of schools that had requested Title IX exemptions hasn’t been updated since December 2016 on the Department’s website, which was concerning for those who said that students and their families have a right to know before enrolling if an institution has the ability to discriminate against them. The proposed rule now goes a step further by removing the requirement for institutions to submit a letter to request exemption under Title IX, which is even more concerning for pregnant students, gender non-binary students, transgender students and LGBT-identified students, whose rights may be in denied at exempt institutions. The Department states in the proposed rule that institutions that come under investigation for discrimination under Title IX can attest to their exemption as part of the complaint process, without having received prior approval from the Department of its exempt status. In other words, a student can bring a discrimination complaint against a school that can then use the exemption in its defense without ever having officially requested exemption. The protections for students who face discrimination by religious institutions are very few under the proposed rule.

 Resolution timelines

The Department of Education’s now-rescinded 2014 Question and Answer guidance document indicated that institutions should complete sexual misconduct investigations under Title IX within a 60-day time frame. While the Department clearly stated that “OCR does not require a school to complete investigations within 60 days,” many institutions took the guidance as a definitive rule. For many professionals involved in adjudicating sexual misconduct cases, the 60-day time frame was unmanageable and ill-defined. In some cases, respondents’ rights groups have claimed that the time frame itself led institutions to move too quickly through the investigation and resulted in a resolution that came at the expense of conducting a fair investigation.

While many student affairs divisions and professionals welcome the removal of the 60-day time frame under the proposed rule, the removal of a time frame altogether is problematic. During the NASPA listening sessions on Title IX that took place last March, attendees repeatedly expressed a concern that having no time frame is at least as troubling, if not more, than having a 60-day time frame. It would be difficult for some students to trust a formalized institution process alone, and then to trust that process when it has no defined end point and can potentially last over multiple academic terms, is even more difficult. Many NASPA members indicated that a flexible 60-day time frame for resolution of Title IX cases would be better than no time frame at all.

Additional concerns, as discussed in the third blog in this series, relate to the increased pressure for parties to retain legal counsel, which adds another layer of burden on both parties involved. Cases that drag out due to unavailability of either party, witnesses, legal counsel, or campus administrators will prolong the stress of involvement and the expenses associated with the process under the new rules. To be sure, there isn’t anything preventing institutions from maintaining a 60-day time frame that may have been included in an institution’s policy moving forward. Some institutions have agreed to use the new rules as the floor rather than the ceiling when it comes to Title IX investigations, and may decide to keep the 60-day time frame while allowing the administrators involved the added flexibility for delays as outlined in the proposed rule. Additionally, research shows that the length of time cases take to proceed through the criminal justice process is a major reason behind case attrition. Therefore, prolonged, time-intensive Title IX proceedings could likely have the same effect on campus.

Standards of evidence in Title IX proceedings

The proposed rule allows for institutions to choose between a preponderance of the evidence or the higher clear and convincing evidence as the standard of evidence they will use in adjudicating Title IX cases. However, there’s a large caveat to this option. Institutions must, under the proposed rule, use the same standard of evidence for all sexual harassment cases on campus – including those involving students, staff, and faculty. Many faculty codes of conduct are associated with tenure policies and bound by union contract. Similarly, unionized employees may be bound by contract to a misconduct policy that utilizes the higher clear and convincing standard.

The conflation of sexual harassment proceedings related to employment with adjudication of student conduct draws a false equivalency between the different nature of the relationship between employees of an institution and students at an institution. The criticism, then, is that by requiring the alignment of all sexual harassment cases, the Department is forcing institutions that would have kept their misconduct policy at the preponderance of evidence standard to use a clear and convincing standard instead. Victims’ rights advocates and other legal scholars have argued that the preponderance standard is the standard used in civil rights cases and represents the most balanced standard between the parties, instead of requiring one party to reach a higher bar than the other for a finding of responsibility.

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.  

This series has centered on the initial concerns raised across the higher education policy landscape. We encourage institutional teams as well as individuals who do this difficult work every day to submit comments that will inform the Department of Education’s final rule. 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 covered in this series in early January to assist student affairs professionals and higher education institutions in responding to the call for comment. If you have questions about the proposed rule or the process for submitting a comment through the Regulations.gov, please feel free to contact 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]