When the U.S. Department of Education first proposed new Title IX rules in November 2018 on how colleges must address allegations of sexual misconduct, Pitt Chancellor Patrick Gallagher spoke out against some of the provisions.
And now after nearly a year and half and 124,000 public comments on the issue, Pitt still has concerns about the final rules published on May 6, which would require a live hearing where alleged victims and accused perpetrators can be cross-examined to challenge their credibility.
A statement on Pitt’s Title IX office website states: “This change has the potential to dissuade all parties, including witnesses, from engaging in the Title IX process.”
“Our goal is — and always will be — to eradicate sexual assault and misconduct at the University of Pittsburgh and ensure that everyone feels safe, respected and supported as members of our university community,” the statement says.
Gallagher reiterated that sentiment at the May 14 Senate Council meeting, “I do want to reiterate that these changes at the federal level, while they will affect our programs, there's no question about that — we are looking at exactly what that means — but they do not change our fundamental commitment that the University of Pittsburgh is a place that should be free from sexual harassment and sexual violence for all members of this community.”
The rules also limit the complaints that schools are obligated to investigate to only those filed through a formal process and brought to the attention of officials with the authority to take corrective action, according to the New York Times. Find a summary of the major provisions here.
The regulations will be the first Title IX guidance published by Department of Education’s Office of Civil Rights to go through a formal notice-and-comment process since 1997. They will have the force of law, and colleges and universities that receive federal aid will need to be in compliance with the regulations by Aug. 14. Gallagher called that deadline “grossly unrealistic” at the Senate Council meeting.
The statement from the Title IX Office also expressed concerned about “the rapid implementation required while we respond to the COVID-19 pandemic. ... We join our colleagues in the Association of Public & Land-Grant Universities and Association of American Universities in the hope that the Education Department will delay the implementation until universities across the country have had adequate time to review and update policies and educate their communities.”
In 2017, Education Secretary Betsy DeVos rescinded 2011 guidance from the Obama administration that said college officials should use a “preponderance of the evidence” standard to determine guilt in sexual misconduct complaints, basing decisions on the most convincing evidence presented, according to Inside Higher Education.
The 2020 regulations — which Education Department officials say secure due process rights for students who report sexual misconduct or are accused of it — will instead allow Title IX officials to use either a preponderance of the evidence or “clear and convincing” standard, which sets a higher burden of proof.
“Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” DeVos said in a statement, according to the New York Times. “This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process. We can and must continue to fight sexual misconduct in our nation’s schools, and this rule makes certain that fight continues.”
Gallagher, in his letter to the Department of Education in January 2019, also objected to language that is included in the final rules that makes schools responsible only for investigating incidents that occur within their programs and activities. “This language could lead community members to incorrectly believe that a school cannot address off-campus activities that impact its educational or employment environment, despite that institution’s capacity and — in some cases — duty to do so,” the chancellor wrote.
— Susan Jones
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