The Title IX team hosted community forums on Feb. 28 and March 1 to hear concerns and answer questions about proposed changes to Title IX enforcement issued by the Department of Education in November 2018. The proposed regulations would limit when colleges are required to investigate sexual misconduct and increase the rights of the accused in Title IX cases. The 60-day public comment period for these regulations ended Jan. 30 and the College is now awaiting the release of the final regulations that will be legally binding.
At the forums, Title IX Coordinator Kari Hohn began by reviewing St. Olaf’s current Title IX process and the changes that would occur if these regulations are finalized. Currently, reporting students choose between an informal reporting process and a formal reporting process. The informal process does not involve an investigation and instead consists of mediation between the reporting and responding individuals by a trained faculty or staff member. Hohn said there would be “little to no change to our informal process” under the proposed regulations.
Instead, most of the proposed changes would affect the formal reporting process. Under St. Olaf’s current policy, an investigator writes a report summarizing the evidence they have collected and determines whether the accused student is responsible. If the responding party is found responsible, a two-person panel comes up with consequences for that student.
The proposed federal regulations would change this process in a wide variety of ways. Investigators would no longer make decisions about responsibility. Instead, there would be a hearing during which the reporting and responding parties’ advisors, who are typically attorneys, could cross-examine the opposite party. This is a drastic shift in the role of advisors, who currently play a minor role in Title IX proceedings. Some individuals at the forum worried that the hearing and cross-examination would be traumatic for the reporting student and would discourage students from reporting sexual misconduct in the first place.
Under the proposed regulations, institutions would also be required to provide advisors to each party.
“I am unclear if that means we have to provide an advisor who is an attorney, or if we just have a list of other staff members who are trained to fulfill this role on campus,” Hohn said.
Parties and advisors would also be allowed to review evidence as it is collected through an online “data room.”
Some of the students, faculty and staff present at the forums expressed concerns about whether the new system would adequately protect student privacy. Currently, parties and their advisors make an appointment with Hohn when they wish to view the investigator’s evidence. They view the evidence on Hohn’s computer and do not have access to their cell phones. Under the proposed regulations, students and advisors could access the evidence online using their personal computers and cell phones anywhere they wanted.
“The major concern is the privacy piece of it,” Hohn said. “Even though the data room would be set up so that it couldn’t print or downloads can’t be made, everyone has a cell phone and can take a screenshot.”
The regulations would also force St. Olaf to use the ‘clear and convincing’ standard of evidence in Title IX cases rather than the less-demanding ‘preponderance of evidence’ standard.While the ‘preponderance of evidence’ standard finds the accused responsible if the reporting student’s claims are considered more likely than not to be true, the ‘clear and convincing’ standard requires that the reporting party’s claims be considered more than 75 percent likely to be true than false.
While the regulations say that institutions could choose between these two standards, it says that they must use the ‘clear and convincing’ standard if they use this standard for any other disciplinary process. Because St. Olaf uses this standard for issues involving faculty, it will have to use this standard in Title IX cases as well.
The policy changes would also limit the scope of when colleges can investigate sexual misconduct under Title IX. St. Olaf would no longer be able to initiate a Title IX investigation for sexual misconduct that takes place off-campus. Hohn said it is unclear whether the College could still investigate these incidents as violations of the College’s code of student conduct.
Hohn disputed the Department of Education’s claim that these regulations would save institutions money. Whatever savings occur due to a smaller number of formal investigations would be outweighed by the costs of creating the “data room” and the hiring of advisors, Hohn said.
After discussing how the regulations would change St. Olaf’s Title IX process if finalized as they currently exist, Hohn answered questions and responded to concerns. In response to a question about whether the new regulations would negatively impact students who need Title IX services, Hohn said she thinks they would.
“It’s already really challenging to go through the investigation process, and I think this just makes it more traumatic and stressful to say the least,” Hohn said. “My concern is that fewer students will want to go through the process at all, let alone report, and that we’re holding fewer students accountable. If you keep playing that out, more violence is going to happen on campus.”
Hohn said if the final regulations resemble the proposed regulations, the College would need to further invest in confidential resources for students who do not want to go through the formal investigation process, as well as prevention programming.
Hohn said that the College is applying for a grant that would finance this investment.