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Education Dive
With DeVos' Title IX rule taking effect, higher ed is under strain
Experts in the federal sex discrimination law still see many flaws in the new regulations.
Jeremy Bauer-Wolf
Aug. 13, 2020
Brett Sokolow, president of the Association of Title IX Administrators,
spent part of the last three weeks holding mock hearings with college
administrators, coaching them on how to run the courtroom-style
proceedings used to judge campus sexual violence allegations, which are
required by complex new federal regulations that go into effect Friday.
Sokolow, who also leads consulting firm TNG, said campus officials
"were shocked" by the "slow and stilted" pace of the faux tribunal, and
he estimated the real proceedings could stretch days.
"It will take skilled litigators to manage all this," Sokolow said.
The new rule is the product of a years-long effort by the U.S.
Department of Education to rewrite how U.S. colleges must investigate
and address episodes of sexual misconduct.
It represents a seismic shift for institutions, which for about half a
decade followed guidance issued under the Obama administration that
survivor advocates consider transformative, catapulting sexual violence
on college campuses into a bright national spotlight.
Contingents within the sector are unimpressed with the rule. They say
it is vague and mires Title IX processes to a point that students
reporting sexual assault will not want to pursue formal investigations.
Trying to adapt it during the health crisis has also proven difficult,
which experts in the law say will likely result in shaky proceedings.
Title IX practitioners are "mostly irate," Sokolow said, adding they spent years adjusting to the previous guidance.
"And now a grenade was thrown in all their efforts," he said.
What the rule does
Education Secretary Betsy DeVos had deemed the Obama-era policies
unfair, echoing grievances of civil liberties and men's activist groups
that they were too heavily slanted against accused students, and that
colleges were pressured to suss out guilt, even when there was none,
under the threat of having federal funding yanked. DeVos said her
regulation corrects this alleged imbalance.
It is most known for the new quasi-judicial process it sets up, which is far more intensive than a typical conduct hearing.
Both parties will be represented by an adviser, who can be a lawyer —
an option some higher ed experts fear will spawn vast legal enterprises
focused on absolving students who can pay top dollar. They must be
allowed to cross-examine each other through the surrogate. However,
critics believe this will result in a contentious and potentially
retraumatizing environment for a survivor. A neutral third-party will
vet questions to determine their relevance.
Who stocks the hearing panels will vary based on whether the
institution wants to include faculty, staff or students, Sokolow said —
or even outsource the job and bring in attorneys. The latter option
likely wouldn't be affordable for less-wealthy colleges, however.
No matter what, the hearing board will need to be versed in information
usually reserved for lawyers, such as which evidence is relevant for a
case, Sokolow said.
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