Title IX rules could reduce Northwestern’s liability to investigate sexual assault claims, boost due process procedures


Daily file photo by Jeffrey Wang

Students march down Sheridan Road in a 2017 Take Back the Night march, an annual event aimed at supporting survivors of sexual assault. New Title IX regulations proposed by the U.S. Education Department will bolster the rights of students accused of sexual assault.

Alan Perez, Campus Editor

The Education Department unveiled its proposal of highly-anticipated rules on Friday that would bolster the rights of those accused of sexual assault and harassment, a move that could drastically reshape how colleges like Northwestern handle allegations reported to them.

The proposed rules would require that schools no longer rely on the so-called single investigator model, give defendants of sexual misconduct allegations the right to cross-examine their accuser and other witnesses and provide written notice of claims to both parties.

Due process advocates and self-described men’s rights groups hailed the new rules after arguing for years that procedures adopted by some schools were unfairly biased against defendants of claims.

“While not perfect, the proposed regulations indicate the federal government’s recognition that students accused of serious misconduct are entitled to meaningful due process rights, and the proposed regulations include a number of important procedural protections that will improve the integrity of the process for everyone,” Samantha Harris, vice president for procedural advocacy at the Foundation for Individual Rights in Education, said in a statement.

The rules codify procedures that have varied widely across states and schools since sexual harassment was ruled illegal under Title IX as a form of sex discrimination. Title IX rules have until now only been issued through guidelines and “Dear Colleague” letters, which the Obama administration used in an ambitious effort to combat sexual violence in the nation’s schools.

But this administrative process frustrated some for skirting the formal rulemaking process. U.S. Department of Education Secretary Betsy DeVos’ rules would put the administration on a stronger legal footing to enforce Title IX, the federal law barring sex discrimination in federally-funded schools. The public has 60 days from the day the rules are published in the Federal Register to participate in a comment period.

Much of the regulations are already part of NU’s process, such as the right to appeal by both parties and its choice of the “preponderance of evidence” standard — the lower of the two evidentiary standards. In the lead-up to the anticipated rules, University administrators stressed that a complete overhaul would not be necessary since state laws like the Illinois Preventing Sexual Violence in Higher Education Act — which mirrors much of the regulations — already govern these sexual misconduct policies.

The news comes at a particularly sensitive time when sexual violence remains a flashpoint issue on campus. With the return of the Sigma Alpha Epsilon fraternity and the national reckoning around sexual misconduct, students have mobilized to combat sexual violence. Administrators have taken notice, and are relying heavily on prevention initiatives, such as a new required training set to roll out this winter.

“Northwestern is committed to ensuring the safety of our students, faculty and staff,” University spokesman Bob Rowley said in a Friday statement. “We work diligently to prevent sexual misconduct and respond to reports of sexual misconduct in a prompt, thorough and impartial way.”

“We are reviewing the document and preparing to participate in the comment period on these critically important issues,” he added.

The rules would reduce the responsibility schools have to investigate claims of sexual misconduct. NU would only need to address claims when it has “actual knowledge” of an incident that occurred in its own “education program or activity.” In other words, the University would no longer need to respond to off-campus incidents or reports made to University officials who don’t have the proper authority to take “corrective action.”

In an interview on Thursday, Provost Jonathan Holloway, whose office oversees Title IX, said it can often be difficult to determine NU’s jurisdiction to investigate off-campus incidents.

“You can imagine a scenario, you know the scenario. One party says it was consensual. One party says it wasn’t. Both parties were drunk. This is just typical stuff. It was off-campus and one of the parties is not affiliated with the University,” he said. “Where does our responsibility begin and end? That describes a fair number of these cases, and it’s really exquisitely difficult.”

Northwestern’s sexual misconduct policy maintains it has the right to investigate alleged incidents that would “affect the University’s working or learning environments, regardless of whether the reported conduct occurred on or off campus.” It is not yet clear whether Northwestern would adopt this change.

Colleen Johnston, Northwestern’s Title IX coordinator, referred comment to Rowley’s statement.

The rules would also make it harder to find that schools violated Title IX law. Schools would need to demonstrate their actions were “clearly unreasonable in light of the known circumstances.” Northwestern would need to address formal complaints, but would have leeway to implement resolutions. The Education Department would allow Northwestern to close cases through informal resolutions like restorative justice or mediation, a practice the Obama administration viewed as improper.

While the University would have less responsibility to investigate off-campus incidents, it would also not need to look into reports not made directly to a University official with authority to investigate. Instead, NU would need to offer those accusers supportive measures that are non-punitive and non-disciplinary.

Additionally, the rules stick with the extended timeline granted last year, when DeVos stripped Obama-era guidelines and replaced them with an interim Q&A. The University revised its process this year to abide by the “prompt and timely manner” guideline, replacing the old 60-day requirement.

The centerpiece of DeVos’s overhaul bolsters the rights of the accused by strengthening due process regulations. Northwestern’s procedures would require cross-examination conducted by an adviser, though it would prohibit questions about an accuser’s past sexual history.

It would also prohibit the single-investigator model, in which a Title IX investigator interviews both parties separately and presents findings to a panel. The University was sued by a former student in 2017 for its “grievous mishandling” of an investigation, partly due to the single-investigator model.

The proposed changes were met with backlash from survivor advocates, who fear the regulations will discourage survivors from stepping forward. But the regulations could set up a clash between students’ concerns and the University’s responsibility under the law.

“We care about both sides of the equation,” Holloway said last week. “What we’re trying to do is get to a place of safe culture on campus, safe reality on campus, clarity about processes so both sides feel reasonably represented and heard.”

Daisy Conant contributed reporting.

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