The University of Iowa conducted a thorough review of the U.S. Department of Education’s new proposed Title IX regulations on sexual misconduct for higher education institutions. The following was formally submitted on January 30, 2019:
Dear Secretary DeVos:
On behalf of the University of Iowa, I submit comments in response to the U.S. Department of Education’s November 29, 2018, notice of proposed rulemaking (“NPRM” or proposed rule”) amending regulations implementing Title IX of the Education Amendments of 1972 (Title IX), Docket ID ED-2018-OCR-0064.
The University of Iowa supports comments submitted by the Association of American Universities (AAU), the Association of Public and Land-grant Universities (APLU), and the Association of Title IX Administrators. In addition, we offer comments below specific to our campus perspective.
The University of Iowa has a long-standing, committed team working to prevent and respond to sexual misconduct, including sexual harassment. Led by the Title IX coordinator, our multi-disciplinary team is made up of over 30 campus and community partners (see UI Anti-violence Coalition: https://osmrc.uiowa.edu/anti-violence-coalition) who meet monthly to identify and address priorities related to policies, procedures, prevention, and training. The university has demonstrated a commitment to evidence-based interventions and continuously assesses its anti-violence programs, policies, and resources. Updates and recommendations are routinely discussed with the university president and vice president for student life. As a public research and teaching university with a medical campus, we appreciate the flexibility to determine our own procedures and programs that are based on our values, students’ needs, resources, and ever-changing work environment. Our Title IX work is collaborative as evidenced by our most recent anti-violence plan, https://osmrc.uiowa.edu/anti-violence-coalition/2018-anti-violence-plan. We appreciate the Department’s engagement in the NPRM because it secures public involvement in establishing standards for Institutions of Higher Education (IHE), but we worry that the proposed regulations would impose a one-size-fits-all model that would limit our ability to tailor our policies and procedures to our specific campus community.
Response to Directed Questions
Applicability of provisions based on type of recipient or age of parties
Differentiating the applicability of regulations on the basis of respondents’ or reporting parties’ age will impact procedures at Institutions of Higher Education (IHE). University or college students may matriculate before turning 18 years old. Historically, at the University of Iowa, approximately 5% of our incoming undergraduate students are 17 years old. A high-achieving high school student may enroll in a college course without being a full-time student at that IHE. Summer camps, leadership academies, tutoring programs, dance classes, and music lessons for individuals under the age of 18 are provided by IHE. Regulating that the procedural steps used in sexual harassment investigations be responsive to the age of the parties involved seems desirable but it would be prudent for the Department to clarify how that rule applies to an investigation at an IHE when a party is under 18 years old.
Applicability of the rule to employees
The university is committed to implementing sexual harassment policies and procedures that hold both our students and employees accountable with the goal of creating a safe learning and working environment. The proposed rule contains a number of provisions that are unworkable in the context of sexual harassment involving employees. The requirement of a hearing with direct cross examination for all formal complaints of sexual harassment would lengthen complaint resolution time, hamper our ability to take prompt action against employees who have violated our policies, and add substantial cost as we ensure those overseeing hearings and providing cross examination are competent and qualified to do so. We are concerned that this has the potential to discourage the reporting of problems on our campus.
While we urge the Department to ensure that the NPRM grievance procedures apply equally to cases involving student and employee respondents, we do so by respectfully asking that the provisions not require that IHE be an arm of the criminal justice system or mimic civil court systems. Serving as a quasi-court system would be especially burdensome in our employment grievance procedures. On the other hand, restricting the NPRM’s applicability to cases involving student respondents and employee respondents only when the reporting party is a student, would create confusion, increase response error, increase litigation risk, and spread community distrust in our grievance procedures. We strongly urge the Department to allow IHE the flexibility to determine procedural steps in the context of its workforce.
The proposed rule that would require recipients to ensure Title IX coordinators, investigators, and decision-makers receive training is incomplete. The proposed rule refers to training only on the definition of sexual harassment, and on appropriate investigation and grievance procedures that protect the safety of students, ensures due process for all parties, and promotes accountability. The University of Iowa uses a three-module training curriculum for new decision-makers that in addition to the topics noted above, includes a case study, practice application of our policies and procedures, content on due process principles, dynamics of sexual harassment, sexual assault, dating/domestic violence and stalking, and information to assist in working across differences related to race, sexual orientation, gender identity, and language. Ensuring a culturally responsive process is exceedingly important because research literature and our own climate survey data suggests bisexual, gay men, and lesbian students are at a significantly greater risk of experiencing sexual misconduct compared to their heterosexual
Even with the more restricted training requirements proposed, however, the costs of training will increase substantially because of the additional personnel necessary to implement the proposed procedural changes calling for a quasi-court system approach rather than our current educational and employment procedures. The additional hearing officers, aligned advisors, and investigators managing inspection and review of considerably more and more sensitive documentation will need to be trained to perform these responsibilities effectively.
Standard of Evidence
We currently use the same standard of evidence, a preponderance standard, in all Title IX matters involving students and employees. We are deeply concerned that the Department seeks through the NPRM to dictate what standard we use in non-Title IX matters, especially our academic or research misconduct cases. It appears that this provision exceeds the Department’s statutory authority by attempting to direct the standard of proof in non-Title IX matters. The University of Iowa questions the enforceability of a requirement under these rules for the standard of proof in non-Title IX cases. We request the flexibility to choose an evidentiary standard that best meets our unique campus pedagogical and research missions, resources, and community’s shared governance standards.
Potential clarification regarding “directly related to the allegations” language
Even in courts of law, the issue of what is directly related to a matter can lead to confusion, hostility, and further litigation because of the complexity of its application in the context of a case. This proposed provision threatens to jeopardize IHE ability to redact private information like medical or counseling information, likely putting an institution at risk for violating state or other federal privacy regulations related to employment or health records. In addition, the draft regulation cites FERPA, a student record privacy law, as its basis for defining what it means by “directly related to the allegations” language, suggesting it does not apply to employee misconduct and neglecting to address how it relates to the employment context, which presents privacy concerns as well.
Priority Comment Response
Definition of Sexual Harassment
We appreciate a rule that attempts to establish consistency with a standard set forth by the Supreme Court regarding what constitutes a hostile environment, but we urge the Department to ensure that the final regulation also explicitly allows IHE to address problem behavior that does not meet the proposed definition of sexual harassment. The proposed language, “[u]nwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s educational program or activity,” is a narrower definition than that in the State of Iowa Code, Section 19B.12. The Department’s proposed provision would create conflict between state and federal requirements, potentially causing confusion for the university.
Live hearing with direct cross examination
This provision, alone and in conjunction with the inspect and review requirement addressed below, converts IHE’s grievance procedures into quasi-court systems. Administrative complaints are not an appropriate substitute for the formal criminal or civil judicial systems. Subjecting students and employees to a directly adversarial process that is intimidating, hostile, and draining by its very nature likely will yield unintended consequences. This provision will discourage individuals from reporting sexual misconduct as well as from serving as witnesses. As a result of fewer reports, fewer individuals will seek assistance from their institutions, weakening our ability to address sex-based discrimination and keep our campuses safe. This provision transforms the institution’s control over student and employee conduct by creating a venue in which parties conduct their own civil trials while we as the institution are relegated to serve only as referees.
The University of Iowa uses a live hearing model for student misconduct disputes when the investigator that finds it more likely than not that a policy violation occurred, determines the recommended sanction to be suspension or expulsion, and the material facts are in dispute. Our student conduct hearing is facilitated by an adjudicator who addresses prehearing matters, asks questions of the witnesses, resolves evidentiary issues and disputes, and ultimately determines whether a university policy violation has occurred. Our Student Misconduct Procedure provides for the ability of both parties and the university’s charging officer to submit questions to the adjudicator. It also provides a provision for either party to request a partition be placed in the hearing room so that the parties need not see one another during the live hearing but retains the parties’ visibility to the adjudicator. When it comes to the questioning of witnesses, the NPRM requires an on-the-spot explanation for any decision to exclude a question—a standard higher than any judge must follow in a court of law, and one likely to protract the proceedings and to invite further challenge.
The University of Iowa student hearing model also allows for written witness testimony to be introduced, even if that party chooses not to be present at the hearing stage of the process, including the written testimony of a respondent who is not present at the hearing for fear that their on-the-spot oral testimony may be admitted in a future criminal or civil proceeding.
In the circumstance of a respondent not participating in a hearing under the NPRM, the adjudicator will be all but required to make a finding of responsibility against the respondent if the reporting party testifies, is cross-examined, and is credible. This seems at odds with the Department’s intention of addressing fairness for respondents’ interests. As a public IHE, we strive to strike a balance between making the process accessible and fair for all parties. We have demonstrated a commitment to ongoing review, assessment, and revision of our policies and procedures.
Because the NPRM requires that any testimony that is considered must be subject to cross-examination, we fear aggressive questioning tactics will be used by advisors, who could include parents, classmates, or attorneys, in an attempt to intimidate the reporting party, the responding party or other witnesses from participating in a hearing. We believe the Department can make changes to existing guidelines with less prescriptive rules than noted in the NPRM. We strongly urge the Department to remove the requirement of direct cross-examination and live hearings for all sexual harassment cases.
Right to an aligned advisor who will serve to cross-examine
The university believes that this provision, if included in the final regulation, will be cost-prohibitive for the University of Iowa. If one party hires a well-known aggressive litigator as an advisor who is permitted to conduct direct cross examination, we might be required to ensure fairness in our process by providing a comparably experienced advisor to the other party. Hiring individuals with these skills would be very costly and also creates an imbalance in the level of institutional support provided to the parties. It is not reasonable to expect that we direct our resources in this manner to either or both parties. We currently rely on trained hearing officers to control the questioning of witnesses and to maintain fairness and appropriate decorum in our hearings. Additionally, the current language of the proposed regulations indicates that parties can choose their advisor. Clearly, if the institution is providing an advisor, the ability to reject (possibly repeatedly) an advisor can become a way for a party to stall or even disable the university’s resolution process.
Right to Inspect and Review
This provision noted in the NPRM will further legalize the grievance process and, if adopted as written, would require more than what is required in the criminal justice system. For example, a police detective is not required to circulate the incident report to the parties to solicit input prior to a decision being made to dismiss the complaint or file criminal charges. During the course of a sexual misconduct investigation, it is common for university investigators to receive information from witnesses that may or may not be relevant to the case. Such information may include HIPAA-protected medical history and treatment, prior criminal convictions or disciplinary issues, academic grade information, and prior abuse history. IHE need flexibility to protect the privacy of the parties and adhere to other federal, state and local privacy regulations. Our threat assessment professionals express concern that this provision could compromise the health and safety of parties involved and the larger campus community.
We ask that the final regulation allow for IHE to have the ability to redact confidential and other sensitive information, such as medical or counseling records. Parties should have access to information that is directly related to the allegations, with appropriate limitations. We worry that the Department’s prescriptive manner in which we are to share information with the parties is not sustainable and will remain a costly endeavor. We do not believe that technology exists to prevent a simple photograph from being taken with a smartphone of a document that is provided on a file-sharing platform. The speed at which the NPRM proceeds and any subsequent changes in years to come cannot keep pace with which technological advances. It would be wise to avoid specifying the means by which information is to be shared.
Determinations Regarding Responsibility
Requiring the decision-maker to be different from any person who served as the Title IX Coordinator or investigator for all Title IX grievance cases is burdensome, time consuming, and expensive. This provision attempts to impose a one-size-fits-all investigation model that does not respect the need for IHE to utilize a model that best reflects their mission, values, size of its student body or workforce, and the resources it has at its disposal. A model that allows the investigator to impose non-suspension sanctions without a live hearing has been upheld by the courts as consistent with the principles of due process.
Input from our campus community reflects support for using alternative resolution methods like mediation. Our commitment to adding this resolution option to our student misconduct procedure is evidenced as a strategy noted in the University of Iowa Anti-Violence Plan for Sexual Misconduct, Dating Violence, and Stalking 2018-2021, “Develop and implement an informal resolution option for addressing reports of non-criminal sexual misconduct involving students that is evidence- and trauma-informed, used at the request of the reporting party, and adherent to appropriate standards for due process,” https://osmrc.uiowa.edu/anti-violence-coalition/2018-anti-violence-plan. The proposed rule would require that both parties and the IHE agree to the resolution process. The needed investment in training for the IHE representatives facilitating this process is not lost on the University of Iowa, especially given that at the heart of these disputes is often a power imbalance created by position or status of the parties or by the alleged misconduct itself.
Language about when an IHE is required by Title IX to act is helpful. The Department should clarify that it does not prohibit or inhibit an IHE’s response to sexual misconduct outside of or beyond the regulation’s specific requirements. To leave this vague provides room for a legal challenge asserting the IHE’s response is an overreach.
We appreciate that the NPRM identifies that an institution may immediately remove a respondent from campus if it determines an immediate threat to health or safety exists. Our campus threat assessment team suggests further clarification is needed to know what exactly the Department is seeking through an “individualized safety and risk analysis.” Our team acknowledges that many risk analysis paradigms and tools exist within the law enforcement and mental health fields. If the Department does not clarify expectations, we worry that expectations will be left to the courts to determine when a party does not believe that an IHE made the right judgment on a safety matter.
We seek clarity on whether the proposed rule seeks to prevent an IHE from precluding a party from resuming a formal process once an informal resolution process has started.
We seek clarity on whether the proposed rules prohibit offering a supportive measure that notify a campus member not to contact a reporting party without a formal complaint being filed.
In closing, we share that members of our community have expressed additional concerns about other likely consequences of the draft regulations should they become finalized without amendment. The NPRM would require major changes in the day-to-day administration of student conduct and employee grievance matters in non-Title IX cases as well as Title IX cases. In order to avoid overcomplicating the misconduct procedures and exposing itself to lawsuits, IHE will likely adopt a one-process model. Alcohol and illegal drug rules, which IHE are required to enforce by federal law, will be much more difficult to enforce using the NPRM procedures compared to our current procedures.
As a public institution, the University of Iowa is committed to incorporating due process protections into our complaint resolution system. A summary of our current student misconduct procedure is referenced above, a model procedure which has never been struck down as unconstitutional. Unfortunately, the NPRM would inadvertently incorporate into our process procedural safeguards not required by the courts. As currently drafted, the NPRM imposes procedural burdens that are not required by the Constitution even in criminal cases.
We appreciate the opportunity to participate in the formal notice and comment process. We remain steadfast in our commitment to support survivors and ensure a fair process for all parties. We strongly urge the Department to modify the NPRM to address the concerns we have identified.
Monique G. DiCarlo
Sexual Misconduct Response and Title IX Coordinator
 We recognize the differences between our relationships with our students and our employees. The student hearing procedure is different than the various employee grievance procedures for our employees in collective bargaining units, on contracts, in tenure track, or at-will.