Betsy DeVos, secretary of education, officially released her proposed changes for Title IX processes and policies Nov. 28 and it was the first day the public had the opportunity to contribute feedback.
The public has until Jan. 28 to provide feedback, which can be submitted through the Federal eRulemaking Portal.
The Title IX proposed rule can be found on the Federal Register.
How could DeVos’ new proposals affect faculty, staff and students at UNA?
The Flor-Ala interviewed Tammy Jacques, UNA’s title IX coordinator Dec. 14 to see how she received DeVos’ proposed rule.
Q1: Do the new guidelines change how your approach to the investigative process in any way? If so, what kind of changes need to be made to UNA’s policies and procedures?
A1: We won’t know the final guidelines until the public comment period is completed and whether the Department of Education determines if it will change any of the proposed regulations based on the public feedback. However, if the proposed regulations pass, as is, without any changes considered from the public comment period, yes it will cause us to change some of our approach in how we do our process.
For example, the proposed regulation 106.45(b)(3)(vii) requires a live hearing in which the parties are able to cross examine one another. Our current process allows for both the reporting and responding parties to ask questions of one another but those questions are submitted and asked through the two investigators assigned to the case.
The proposed regulation 106.45(b)(3)(vii) also states the cross examination MUST be conducted by the parties’ advisors of choice. If a party does not have an advisor present at the hearing, the institution must provide that individual an “advisor aligned with that party” to conduct cross-examination. Some questions that universities are asking and have expressed are:
If one party has an attorney and the other party has a non-attorney advisor because he or she can’t afford one, then does this create an inequity? Does this create dynamic from a socio-economic perspective on who can and can’t afford an attorney? Current UNA policy allows for attorneys to be present, but they only confer and advise their client. The advisors don’t do cross examination, and they don’t have any speaking role in the investigation.
The Department of Education is not clear with what is meant by providing an “advisor aligned with that party.” For example, if one student has an attorney, and the other one doesn’t, is the institution required to provide an advisor of similar skill level as the other? Meaning, will this require the institution to provide an attorney for the other party?
Again, that is not clearly articulated by the Department of Education. If that is the case, that could have serious financial implications. If this is not the case, is the institution going to be expected to train non-attorney advisors to get to the skill level to match an attorney’s cross examination skills.
The proposed regulation also states that if a party or witness does not submit to cross-examination at the hearing, the decision-maker must not rely on any statement of that party or witness in reaching a determination regarding responsibility.
There are some prescribed procedural items outlined in the regulations that will impact our process. For example, requiring that all evidence be inspected and reviewed by all parties, including their advisors, at least 10 days to submit a written response before the investigative report is completed. Once the investigative report is completed, then the institution would have to provide the report to all parties at least 10 days prior to the live hearing for their review and written response.
We would also have to update our definition of sexual harassment.
In section 106.44(e)(1) of the proposed regulations, sexual harassment is defined as (i) an employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct; (ii) unwelcome conduct on the basis of sex that is so severe, pervasive, AND objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or (iii) sexual assault, as defined in 34 CFR 668.46(a).
Part (ii) section is the essence of sexual harassment that creates a hostile environment. The problem is defining unwelcome conduct where it has to be severe, pervasive, and objectively offensive. It appears that all three elements have to be met in order to constitute a hostile environment.
There can be cases where behaviors are persistent /pervasive but not severe and be objectively offensive, which can effectively deny a person’s equal access to the recipient’s education program or activity. I believe it should state unwelcome conduct on the basis of sex that is so severe OR persistent/pervasive and objectively offensive.
Here is the contradiction. The U.S. Equal Employment Opportunity Commission (EEOC) addresses sexual harassment in the workplace for employees under the Title VII federal regulations. The EEOC uses unwelcome conduct that is frequent or severe that it creates a hostile or offensive work environment.
Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted) Widespread Favoritism May Constitute Hostile Environment Harassment.
If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII, regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors.
In these circumstances, a message is implicitly conveyed that the managers view women as "sexual playthings," thereby creating an atmosphere that is demeaning to women. Both men and women who find this offensive can establish a violation if the conduct is "sufficiently severe or pervasive” to alter the conditions of [their] employment and create an abusive working environment.’ “Vinson, 477 U.S. at 67 [quoting Henson v. City of Dundee, 682 F.2d 897, 904, 29 EPD ¶ 32,993 (11th Cir. 1982)].11
An analogy can be made to a situation in which supervisors in an office regularly make racial, ethnic or sexual jokes. Even if the targets of the humor "play along" and in no way display that they object, co-workers of any race, national origin or sex can claim that this conduct, which communicates a bias against protected class members, creates a hostile work environment for them. See Rogers v. EEOC, 454 F.2d 234, 4 EPD ¶ 7597 (5th Cir. 1971), cert. denied, 406 U.S. 957, 4 EPD ¶ 7838 (1972) (discriminatory treatment of medical patients created hostile work environment for plaintiff employee); Commission Decision No. 71-969, CCH EEOC Decisions (1973) ¶ 6193 (supervisor's habitual use of racial epithet in referring to Black employees created discriminatory work environment for White Charging Party); Compliance Manual Volume II, Section 615.3(a)(3) Examples (1) and (2) (sexual harassment of females may create hostile work environment for other male and female employees).
Why is it ok to use severe or pervasive related to hostile environment within Title VII sexual harassment claims, but severe and pervasive must be used in Title IX cases? This appears to contradict how government agencies are enforcing sexual harassment claims within the federal regulations.
In addition, it puts institutions in a quandary when there are cases where Title IX and Title VII apply. Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national original, and religion. Harassment is a form of employment discrimination that violates Title VII. Sexual Harassment when it comes to employees falls within Title VII.
For example, a full-time employee sexually harasses a student employee. Title IX applies in this case because of the student, but Title VII applies because both are employees. When the definitions of sexual harassment conflict in how to apply hostile environment, then that creates a challenge for implementation for institutions.
Q2: Do you believe cross examination by an advocate for the defendant strengthens the due process of those who are accused? Does having both the defendant and the accuser in the same room during questioning improve the search for truth? If so, how?
A2: No, I do not think it strengthens it for any of the parties. In fact, I believe it could cause more problems. The proposed regulations allow for individuals to utilize advisors of their choice, including attorneys, if they so choose. If one party (could be responding or reporting party) has an attorney and the other party doesn’t have the funds to afford an attorney, then it could create a dynamic of socio-economic disadvantages.
It is stressful for reporting and responding parties to go through any investigation process. One response to direct questioning could be that reporting and/or responding parties shut down while being cross examined. Having advisors in current processes is common, but universities are expressing concern about allowing advisors to conduct the cross examination.
However, the courts are starting to determine that cross examination to evaluate demeanor is critical for due process. The 6th U.S. Circuit Court of Appeals has weighed in on this in the Doe v Baum case involving the University of Michigan.
Q3: Do you think the new guidelines will hinder victims to come forward, or do you think it increases the confidence of victims in the process?
A3: There is concern that cross examination in a live hearing could potentially negatively influence victims from coming forward especially if they know there is potential to be cross-examined by an attorney.
Q4: When cross examination takes place, how much does the demeanor of the parties involved play a role in determining truth when tangible evidence is scarce?
A4: The purpose of using the demeanor factor is for credibility of parties. That is only one factor that should be used when determining the truth. According to the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisor, there are five factors to include in credibility assessments.
Inherent plausibility: Is the testimony believable on its face? Does it make sense?
Demeanor: Did the person seem to be telling the truth or lying?
Motive to falsify: Did the person have a reason to lie?
Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
Past record: Did the alleged harasser have a history of similar behavior in the past?
Q5: Forty-one percent of sexual assault claims occur off-campus, according to United Educators. Will UNA continue to investigate off-campus claims despite the new regulations giving universities the option to do so or not?
A5: If the guidelines allow for that leeway, then the answer would be yes.
The plan is for UNA to continue to investigate off-campus reports when it involves individuals that fall within our jurisdiction. However, there is still some ambiguity that needs to be answered by the Department of Education with regards to these proposed regulations.
In 106.44 (3), the proposed regulations state “if the conduct alleged by the complainant would not constitute sexual harassment as defined in section 106.44 (e) even if proved OR did not occur within the recipient’s program or activity, the recipient MUST dismiss the formal complaint with regard to the conduct.” If I am interpreting this correctly, the institution must dismiss the formal complaint of a student who is sexually harassed or assaulted by another student at an off campus apartment.
If this is what the proposed regulation means, I find that problematic. If a student is beaten by another student off campus, there is an expectation to handle that in Student Conduct. Why would we not do the same for sexual assault?
If a student was sexually assaulted by a non-student, that would not fall within our jurisdiction to investigate but we still provide support services and resources to assist our UNA student. We also want to make sure the student knows all the local reporting options.
Q6: If it is concluded an accuser has made false claims, will UNA punish those students? If so, what is a standard punishment for false claims?
According to a 10-year analysis of sexual assault claims, it found 5.9 percent were false.
A6: Most reports are made in good faith. If the investigation leads to a non-responsible finding, it usually means that the information obtained as evidence has not risen to a level of policy violation.
However, if evidence of a false claim exists, then an investigation would ensue on that matter. Currently, our policy states “Deliberately false and/or malicious accusations of harassment, as opposed to grievances which, even if erroneous, are made in good faith, are just as serious an offense as harassment and will be subject to appropriate disciplinary action.” The sanctions for someone who provides deliberately false and/or malicious accusations may range on the circumstances.
Q7: Do you believe lessening the amount of liability the university has when claims are made through Title IX is a good thing? Are there any potential concerns with the new standard?
A7: Regardless of what the U.S. Department of Education does with the proposed regulations, I believe institutions have an obligation to do what’s right and make sure to do their due diligence to address sexual harassment and sexual misconduct. Institutions must make sure there is a thorough investigation and a fair process for both the reporting and responding parties.
I am concerned with the live cross examination utilizing advisors, which could be attorneys. I believe UNA’s process of utilizing the investigators to pose those questions to all parties is a more appropriate process.
Another concern is how the U.S. Department of Education defines hostile environment, which conflicts with how the U.S. Equal Employment Opportunity Commission defines hostile environment. Both are government agencies required to enforce federal law and describe what constitutes unwelcome conduct.
In DeVos’ proposed regulations, part of the definition of sexual harassment states the following: (ii) unwelcome conduct on the basis of sex that is so severe, pervasive, AND objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity. Under the U.S. Equal Employment Opportunity Commission, harassment becomes unlawful “…the conduct is severe or pervasive.”
Why is it ok to use severe or pervasive related to hostile environment within Title VII sexual harassment claims, but severe and pervasive must be used in Title IX cases? This appears to contradict how government agencies are enforcing sexual harassment claims within the federal regulations. This simple wording can make a significant impact on how to apply policy in cases.
The other concern is the ambiguity of whether institutions can investigate behaviors off campus as I noted in question five.
Q8: Overall, do you believe DeVos’ new proposed guidelines strengthen the search for truth, while simultaneously minimizing harm for those who are falsely accused or those who are victims of sexual violence?
A8: I don’t know that we know the answer to this until we see final regulations implemented following the public commenting period. I do believe that it is important for all investigation processes to do due diligence on behalf of both the reporting and responding parties.
Investigations need to be thorough and fair for all parties involved. There are some issues with the proposed guidelines that need to be vetted and clarified, but I am appreciative that we are able to give that feedback through the public commenting process.
Q9: Is there anything you would like to tell students at UNA concerning your office’s mission and DeVos’ new guidelines?
A9: What I would tell students, staff and faculty is that the Title IX Office believes in conducting fair and equitable investigation processes.
As for the new guidelines, I would encourage students, staff, and faculty to read the proposed guidelines thoroughly, and submit their comments through Federal eRulemaking Portal. I would be happy to sit down and talk with individuals about the proposed guidelines.