The Office of Civil Rights (OCR), working under the U.S. Department of Education, recently issued new guidelines for how universities should handle sexual misconduct on campus.
The changes came on Sept. 22 and withdrew two previous guidelines in 2011 and 2014.
Drake Title IX Coordinator Katie Overberg explained these were informal guidelines previously put out by the OCR.
“(The previous guidelines) were really well-intended and they were momentous because they brought the issue to light,” Overberg said. “It made colleges and universities look at what they were doing.”
Guidelines from the OCR help institutions implement the law set out in Title IX, a 1972 piece of legislation that bans discrimination based on sex. Overberg said informal guidelines, like the ones from 2011, 2014 and now 2017, are guidance drafted within the OCR. Formal guidelines go through several steps before being released. That includes a draft stage, public comment period and final revisions.
With the new informal guidelines, schools no longer need to have a “preponderance of evidence” in a sexual misconduct complaint but can require “clear and convincing evidence,” or a higher standard of evidence.
“I am worried that it will become increasingly difficult to hold people accountable for their actions around conduct violations or Title IX violations,” said Phoebe Clark, the president of Drake’s Student Activists for Gender Equality.
Dean of Students Jerry Parker addressed the changes in a campus wide email last week.
“Drake will continue to follow applicable law and best practices in providing students with a safe educational environment and in treating all students fairly and respectfully,” Parker said in the email. “Specifically, Drake will continue its policies and programs to prevent both sexual and interpersonal misconduct, provide outreach when it learns of possible misconduct and respond appropriately and equitably to complaints of misconduct.”
A new frequently asked questions page is up on the Drake Title IX webpage. There, the FAQ page said Drake will continue to follow up on complaints using the preponderance of evidence standard, which requires less evidence to continue the complaint process.
“It’s predictable in that it’s definitely what I expected from Drake,” Clark said. “I’m not disappointed, also. Drake is really working hard to commit to protecting survivors and fighting for survivors within the constraints they have to work in.”
The 2017 guidelines also withdrew a 60-day time frame during which schools were expected to start the complaint process and investigation and potentially hold a hearing.
“Each case is different,” Overberg said. “Schools were working really hard. But there was always good justification for when you needed to go beyond 60 days, and you just needed to make sure everybody understood. Both sides want to know where we’re at. They don’t want it to drag out.”
Overberg said the lack of a time frame could allow universities to take their time to follow processes and procedures.
“What some folks would say, ‘Did it make universities rush?’” Overberg said. “We didn’t have that here. I’ve always been very comfortable that we’ve done a thorough job. Even if we had to go beyond 60 (days) it was because we were being thorough.”
Overberg said the new guidelines don’t change the fact that universities are still responsible for responding to sexual misconduct allegations, rather than turning things over to the police.
“They did, in the 2017 informal guidance, kind of loosen the reigns on some things and said, ‘Schools, you decide,’” Overberg said. “‘You’ve got to do it. You’ve got to do it well, and you’ve got to do it fairly. But you guys decide.’”
Clark said this lack of consistency could have a negative impact on campus.
“It’s almost like a free-for-all,” Clark said. “Schools can kind of fall back on what they think is best. Which is good, because then we get local control. But it’s probably bad in practice because we know … that schools have not been handling this issue well and have not been protecting their students.”
Overberg said the OCR is expected to send out new formal guidelines in the coming nine to 18 months.
“I’m worried about the potential for regulations that really destroy due process or make it really, really difficult for complainants to hold their attackers accountable,” Clark said. “I’m not concerned about how Drake will handle cases. I am concerned about other schools. But in the future, I am concerned OCR and the national Title IX office will release a new dear colleague letter or will work to really regulate how schools are handling Title IX complaints. I’m worried that they’re not going to be good for survivors.”
Overberg said she’s confident Drake will keep following best practices even as guidelines change.
“Concern is valid and I never want to minimize anybody’s concerns,” Overberg said. “We don’t know what’s coming so that’s always concerning to anybody. At Drake, we still have the same people, we still have the same processes and policies. And we’ve been doing a fair and balanced process all along. I’m comfortable and confident that we’re going to be able to keep doing what we’re doing. But I don’t want to minimize the symbolic nature and the timing of things.”
Clark said Secretary of Education Betsy DeVos and her office are pitting due process against survivors of sexual assault.
“I’ve been avoiding her speeches as much as possible just because I know they’re going to make me angry,” Clark said. “It’s difficult to say what they’re actually trying to do.”