Understanding Title IX Policies

Ellie Kelly and Nicholas Mroczka

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Since the appointment of Betsy DeVos as the Secretary of Education, there has been speculation and concern about possible changes to Title IX of the Education Amendments of 1972 (‘Title IX’). For those less familiar with the regulation, Title IX is a federal law that aims to prevent and remedy sex discrimination in educational institutions that receive federal financial assistance.

The University of New Haven, like most public and private universities, uses federal financial assistance, and is required to comply with Title IX and related federal regulations, such as the Violence Against Women Reauthorization Act (‘VAWA’) and the Jeanne Clery Disclosure of Campus Security Policy & Campus Crime Statistics Act (‘Clery Act’).

In addition, the University has to comply with Connecticut State laws, such as Connecticut General Statute § 10a-55m. These federal or state regulations govern University policies and procedures on sexual misconduct, including acts of sexual assault, sexual harassment/exploitation, intimate partner violence (domestic and dating violence), and stalking.

The U.S. Department of Education, specifically the Office of Civil Rights, enforces Title IX through its publication of guidance, Dear Colleague Letters, to inform educational institutions on implementation, best practices, and compliance standards. Education Secretary DeVos made numerous statements about her concerns that previous administration released guidance without following the prescribed notice and comment process, which allows stakeholders to voice their opinions prior to the release of guidance.

Many students perceive DeVos’ comments to mean that Title IX itself will be modified or revoked; we have heard other concerns that colleges will no longer prioritize campus sexual assault. After hearing these concerns, we researched DeVos’ statements to understand the implications of possible changes to Title IX, and any actual changes created by the Department of Education or made to Title IX. Recognizing the need to educate others on Title IX and its impending changes, we offer the following clarifications:

On September 22, 2017, the Department of Education released an official statement regarding New Interim Guidance on Campus Sexual Misconduct, which dispelled much of the prior speculation. In this statement, the Department withdrew the Dear Colleague Letter on Sexual Violence dated April 4, 2011, and the Questions & Answers on Title IX Sexual Violence dated April 29, 2014. Simultaneously, the Department issued its September 2017 Q&A on Campus Sexual Misconduct, which will remain in effect until the Department can engage in negotiated rulemaking on campus sexual misconduct. We think it is important to state that the newly released guidance, and withdrawal of prior guidance, does not revoke Title IX nor does it dramatically alter the obligations of colleges to address campus sexual misconduct.

The new Q&A on Campus Sexual Misconduct indicates that findings of sexual misconduct can be determined through either preponderance of evidence or clear and convincing evidentiary standards. Although this is the new indication, due to CT General Statue § 10a-55m, all Connecticut educational institutions are obligated to use the preponderance of evidence standard. The new guidance also removes the 60-day timeframe for investigations of sexual misconduct, allowing institutions to complete their investigations in a timely, fair, and equitable manner.

Much of the confusion regarding Title IX, and recent federal changes, is the misconception that campus sexual misconduct procedures are parallel to the criminal complaint process. Although Title IX requires institutions to inform students on the option to report both criminally and/or institutionally, these are two distinct processes.

Judicial and criminal terminology are often used when discussing Title IX but only serves to create confusion. The University of New Haven’s Title IX & Sexual Misconduct Policy details the reporting, investigation, and adjudication of sexual misconduct violations. If you thoroughly read the policy, you will notice that criminal terms, such as judge, jury, trial, conviction, guilty, innocent, etc., are absent throughout. Instead, the University uses this terminology: investigation team, hearing board, hearing, interview, responsible, not responsible, finding(s), etc. Proper terminology helps to distinguish between the criminal and University process.

The University of New Haven is responsible to investigate violations of the University’s Code of Conduct and policies; whereas, the criminal justice system is responsible for investigating alleged crimes. Even though behaviors described in the Code of Conduct may also be crimes, the University can only adjudicate violations of policy and defers criminal matters to local law enforcement.

The two processes result in strikingly independent outcomes. At the University, a responsible finding may result in restrictions within the community or separation from the University, whereas in court a guilty verdict can result a criminal sentence, such as prison or probation.

Although these processes differ, the University is still required to provide due process rights to all parties involved. These include, but are not limited to, the right of the responding party to receive written notification of the allegation, the right of all parties to have an advisor of their choice pursuant to VAWA, and the right for all parties to review all evidence used in a determination of a finding.

The University also provides each party with an opportunity to dispute the opposing party and witness reports through interviews, investigative reports, and an optional hearing. These due process protections guarantee that all parties can participate in a fair, impartial, and equitable process.

We encourage all students to learn more about the University’s policies located within the Student Handbook.

Are you interested in discussing Title IX, Campus Sexual Misconduct, or the University’s policies/procedures? Join the conversation at the Title IX & Sexual Violence Roundtables found on Charger Connection.