Department of Education (ED) Secretary Betsy DeVos handed down new Title IX guidance not long after the beginning of fall semester and universities are still adjusting to the new requirements.
The guidance, issued in the form of a question-and-answer document, gives colleges more choice in deciding how to investigate, prove and resolve sexual misconduct violations, Augustana’s Title IX Coordinator Beth Elam said.
Nationally, Elam said there is a clear divide in how different institutions responded to the guidance. Here at Augustana, Elam said the guidance will not significantly change the university’s course.
“We are going to continue doing our process the way we have,” Elam said. “If the [Department of Education] does have any major changes, we will definitely take a look at our policy.”
Under the new guidance “there is no fixed time frame under which a school must complete a Title IX investigation,” according to the Q&A. Instead, the ED will evaluate a school’s effort to conduct a fair investigation in a timely manner designed to provide all parties with resolution.
This breaks from the 60-day investigation standard that was handed down in 2011. The 60-day standard forced colleges to investigate a case in a prompt manner and meant to curb institutions from prolonging an investigation until a student graduated and then subsequently dropping the case, Elam said.
“Now we don’t have the 60-day standard,” Elam said.
Lindsey Roberts, coordinator for the Violence Prevention Office, stressed that although the new guidance withdraws the 60-day standard, it still requires institutions to investigate in a timely manner.
“Institutions can not do [the investigation] a year after a case is reported,” Roberts said. “On a campus, we can not wait that long.”
Roberts said that although Augustana has no standard length of time to complete investigations, it will likely create a standard of 60 to 90 days.
“If we keep dragging investigations out, how’s that helping the victim?” Roberts said.
The new guidance also creates a new standard when determining guilt.
In the 2011 guidance, the ED determined a preponderance of evidence standard as the correct standard of proof when determining sexual misconduct cases. In legal terms, a preponderance of evidence standard means that a party has shown that its version of facts or fault is more likely than not the correct version.
In a clear break from 2011, the new guidance allows schools to choose between the preponderance of the evidence standard and a higher “clear and convincing” standard.
Clear and convincing, Elam said, is a more rigorous standard to meet when determining guilt than the preponderance of evidence standard, but it is less rigorous than the beyond the reasonable doubt standard.
Keeping with 2011 guidance, the new Q&A maintains that “the standard of evidence for evaluating a claim of sexual misconduct should be consistent with the standard the school applies in other student misconduct cases.”
This means that institutions can claim a preponderance of evidence standard for alcohol violations, but apply a clear and convincing standard for sexual misconduct, Elam said,
“I do not see this changing how we do things because we use preponderance for all code of conduct violations,” Elam said.
The ED also altered how schools provide interim measures, Elam said.
Institutions are now required to provide interim measures to both the complainant and the accused. Interim measures are services universities provide to help the accused and accuser during the investigation including counseling, restrictions on contact between the parties and changes in work or housing locations.
“The new guidance says you can’t offer remedies to one party that you’re already not offering to the other party,” Elam said.
The 2011 guidance only required schools to provide interim measures to the accusing party. Institutions’ obligation to provide interim measures for the accused party went undefined.
Elam said the change will not affect the university, because it already offers interim measures to both parties.
The Q&A also allows schools to resolve sexual assault cases using informal resolutions, like agreement between both parties to end sexual assault cases.
The 2011 guidance advocated against using informal resolutions. The intent, Elam said, was to lessen the power dynamics of mediating an agreement between a victim and alleged perpetrator.
Elam said Augustana, though it has the power to, will not use informal resolutions to end sexual assault cases.
“To me, in a sexual assault case, [informal resolutions] are difficult, because how do you mediate that?” Elam said. “Giving schools the ability to do informal resolutions and mediations for lower level is okay, but we’re still not going to use mediation for anything that rises to that level.”
“The goal for us is to make sure people can be successful students,” Roberts said. “We want to get them the help they need so they can move forward in their lives.”
Junior and co-president of Augie FEM Cheyenne Chontos said she is hesitant of the new changes.
“I think due process is important in any legal matter,” Chontos said. “I think people deserve to have fairness and protection, but I think the problem is that we live in a culture that already does not believe women and victims of sexual assault. I worry we are going backwards in terms of believing victims.”