“I’m not sure what that means,” Salvaty says. Schools have lots of special procedures for sexual misconduct cases, she says, precisely because they are different from cases of plagiarism, for example. And many of those are required by federal regulations. Schools are also unclear whether new language in the new guidance means that Title IX rules would no longer apply off campus — at a fraternity, for example.
“That is causing some concern and confusion,” Salvaty says. “We’re just not sure what to do.”
Others have raised concerns that the new interim guidance contradicts a 2001 directive that was not among those rescinded by DeVos. John Clune, an attorney with Hutchinson Black and Cook LLC, says “the whole purpose of the 2001 guidance is that grievance procedures be prompt and equitable.” But, he says, the new guidance removes time limits on investigations, allows schools to offer an appeal option exclusively to accused students, and permits schools to raise the evidentiary bar from “preponderance of the evidence” to a “clear and convincing” standard, making allegations harder to prove.
“That discriminates against complainants,” Clune says. “It certainly undermines the concept … that the proceedings be prompt and equitable.”
Many schools say they are also confused by mixed signals on whether schools can try informal resolution methods, like mediation; the new guidance allows it, but the 2001 guidance bars it.
Skidmore College sociology professor David Karp says he hopes it signals a new opportunity for an alternative process he has been promoting known as restorative justice, a nonadversarial model that focuses on a victim’s healing, and how offenders can contribute to that. Schools have refrained from trying the idea for fear it would be seen as a form of mediation.
“I do think this is a green light that hasn’t existed before,” Karp says. He cautions that more guidance and training is needed, because “if badly implemented, [RJ] can backfire and cause further harm.” But “I think schools will feel like they have more latitude to explore this as an additional option,” he says.
Oklahoma Wesleyan University is one school feeling freed up by DeVos’ decision to rescind the Obama-era guidance, which OKWU President Everett Piper calls “nothing short of a disaster.”
Last year, the university sued the Department of Education, arguing that those guidelines resulted in a “growing number of innocent students being trampled [by the] ‘shoot first, ask questions later’ approach.”
Piper says he is relieved now that OKWU will no longer feel pressure to “compromise … students’ rights” and can now “operate … without threat of government intrusion and overreach.” But OKWU has not yet announced any specific change in policies or practices.
Indeed, most schools appear to be holding off on any immediate action. Officials from schools including Harvard, Cornell, the University of Missouri and the University of Michigan say they are still reviewing the new guidance to see what, if any, changes need to be made. And many more have announced they are simply staying the course.
“All of us are continuing as usual,” says Sarah Berg, deputy Title IX coordinator of prevention, training and outreach at the University of Colorado, Denver and the Anschutz Medical Campus.
A letter to the Yale University community says the school has “no plans to deviate” from current Obama-era policies. California State University, Northridge says “Regardless of this new DOE action … we will not waver in our commitment to Title IX and its protections.” Similarly, Washington University in St. Louis says “regardless of decisions at the federal level, we have no intention of turning back on our commitment or resolve.”
While that kind of resolve is reassuring to some, it’s frustrating to others.
“It is disappointing, but not surprising,” says Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education, a group that has criticized previous policies as unfair to the accused. Many schools see the new guidance as “designed to go back to the Stone Age,” he says. “But really this is about an adjustment to make sure that both sides’ needs are met, because that wasn’t happening before.”
Attorney Andrew Miltenberg of Nesenoff & Miltenberg LLP, who represents dozens of accused students, says the “pushback” from universities is unfortunate. “It’s a stubborn ‘we’re still going to do it our way,’ ” he says.
While the interim guidance is technically just a recommendation, not a binding rule, Miltenberg says schools that stick to old policies do so at their own peril. He says DeVos’ recent comments, and her decision to rescind the old guidance, will be a big boost to accused students’ lawsuits.
“It’s a significant acknowledgement that there is a problem in [that] process,” says Miltenberg. “It’s a great thing to say to a judge that ‘before last week, you didn’t have to believe that there might be inherent bias throughout the process, but now those arguments carry much more weight. The secretary of the Department of Education publicly announced those very things.’ ”
Miltenberg rejects the notion that the new guidance causes chaos or confusion, or even what he calls the “false hysteria” that the new guidance represents a setback for rape victims.
“This constant refrain is an attempt to create a … big lie,” he says. “It’s like if you say it loud enough and often enough, people will believe it.”
Ultimately, Miltenberg says, real change will require not only new policies but also a shift in who is administering them on campuses.
“The reality is that most of the people that I’ve come in contact with as part of any school’s Title IX apparatus have some sort of victimcentric view, or previous work history, or something in their lives that I think makes them unable to be as impartial and objective as someone should be,” Miltenberg says.
Title IX administrators deny any bias in their work, but they don’t dispute how fervently they want to maintain current policies. “Everyone I know who does this work … wants to hold on to this process, because we’ve really put our careers into this,” says Berg. “We’re really proud of where we’ve gotten. So to have someone essentially gut that policy would be really painful.”