PSU responds to proposed Dept. of Ed changes to Title IX sexual assault guidelines
Author: By Julie Caron, PSU Title IX coordinator
Posted: February 4, 2019

Last November, the Department of Education (DoE), through the efforts of Secretary Betsy DeVos, proposed specific changes to the previous Title IX guidelines on how universities handle complaints of sexual harassment and student to student sexual assault. Individuals and organizations, such as colleges and universities, are given until Feb. 15 to provide comments. DoE has received more than 100,000 comments, including those from PSU and other Oregon public universities, which the department will be required to review and respond. Right now, it isn’t clear when or if these proposed changes would go into effect and what changes DoE will make after reviewing them. However, with DoE initiating the notice and comment process, the Title IX changes have the potential of becoming federal regulations, instead of guidelines.

A few of the proposed changes will strengthen the support universities provide to survivors, which PSU supports and has already been providing to survivors. Many of the changes, however, create a court-like process for the universities’ disciplinary systems, which may create a hostile environment and more trauma. The Oregon Council of Presidents (Oregon public university Presidents) and Oregon public universities’ Title IX Coordinators submitted comments to DoE that addressed what areas of the proposed regulations we support and which areas we strongly recommend that the department does not adopt. We have concerns that the new regulations will create additional barriers to students and employees reporting sexual harassment and sexual assault, create an adversarial system and increase cost to Oregon public universities at time when state funding has dramatically decreased. We hope DoE will read the comments closely and revise the regulations to make them reflect the needs of our students, employees and universities in addressing these sensitive matters.

Highlights of the Oregon universities’ comments, with the proposed Title IX changes in bold, include:

  • Requiring universities to dismiss complaints that do not fall within the new definition of Title IX, which requires the conduct to occur on a campus or within an educational program in the United States. If DoE wants to limit what can be addressed under Title IX, it should permit universities to address conduct through its student code of conduct outside of Title IX. 

    Requiring live conduct hearings for complaints against students and employees with no flexibility to have an internal, single investigator model. PSU permits live hearings for complaints against students, but not all matters are best heard by a conduct committee, and having the flexibility to determine the best method of adjudication could reduce the additional trauma to both parties. 

    Requiring cross examination during the live hearing where the university must appoint an advisor if a student does not have one. An advisor does not have to be an attorney. It may be a friend, family member, instructor or staff member. These individuals are not trained to question the opposing party and are not governed by rules of professional ethics. There is concern that cross examination of this nature could perpetuate a hostile environment. Currently, when there is a live hearing, an opposing party to a complaint can submit a question in writing to the chair of the conduct committee, who will ask the question if it’s fair and relevant. We believe that this system of cross examination provided to both parties involved is fair and reduces survivors’ trauma of being asked questions by advisors for the accused. 

    If a party of a complaint or a witness does not answer questions or submit to cross examination, none of that parties’ evidence or testimony will be considered. This does not even occur in court of law, so let's hope it will be eliminated. 

    The costs associated with implementing the new proposals will be high. DoE has a false belief that these changes will reduce the cost to an educational institution. This would only occur if fewer complaints are made, which is not the desired impact. However, the costs to implement the logistics will be high and could impact the ability for PSU and other universities to fund different programs.