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Thursday, December 03, 2020

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UR implements interim Title IX policies following Final Rule

<p>&nbsp;The one-time science building, Puryear now houses the University’s communications, office of title IX and controller.&nbsp;</p>

 The one-time science building, Puryear now houses the University’s communications, office of title IX and controller. 

Editor's Note: This article was updated to distinguish between the CARE office and the Title IX office.

The U.S. Department of Education issued new Title IX regulations governing how schools address reports of sexual misconduct involving faculty, staff and students on May 6. The University of Richmond had until Aug. 14 to implement the new policies, which were released in a 2,000-page document known as the Final Rule, said Kristine Henderson, director of compliance and Title IX coordinator.

UR's Title IX office made the policies prohibiting sexual misconduct and preventing and responding to discrimination and sexual misconduct involving faculty or staff provisional to allow students, faculty and staff to respond to the DOE ruling, Henderson said.

"It was a rather Herculean task to take a look at the policies [...] our university's current policies and looking at the new [DOE regulations] and trying to get them to be compliant," Henderson said. "We realized we wanted to get as much input as possible from the entire campus."

To gather feedback about the new regulations and UR's interim policies, the Title IX office contacted student organizations, faculty and staff and hosted listening tours from September to October where UR community members could hear about and respond to the policy changes, said Tracy Cassalia, deputy Title IX coordinator for students. 

Cassalia and Henderson met with faculty, the Staff Advisory Council, Westhampton College Student Government Association, Richmond College Student Government Association, students from the T.C. Williams School of Law, undergraduate and law student Peer Sexual Misconduct Advisors, College Democrats and Spiders Against Sexual Assault and Violence, she said.

SASAV published a petition and proposal on June 29 with action items to promote student safety in response to the release of the DOE's Final Rule on Title IX policy regulations, according to the proposal.

Sam Mickey, a junior and the president of SASAV, said the student organization worked with SASAV alumni for two months to research restorative justice practices to recommend to UR because of concerns about the Final Rule.

"[The Final Rule] was anticipated, of course, because back in 2017 [the DOE] started the process to reform these regulations," she said. "But [the DOE] had to go through a comments period, and that's when a lot of student activists and national Title IX advocacy groups were flooding them with comments, trying to explain, 'Hey, this is really anti-survivor.'"

The Final Rule requires cross-examination and live hearings at sexual misconduct hearings, which worried members of SASAV, Mickey said. At a live hearing, the decision-maker(s) must permit each party’s adviser to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility, according to the DOE's summary of the Final Rule.

"That's something we're really concerned about: That survivors have to be in the same room and be re-traumatized with the respondent," she said.

Henderson said UR had to abide by the mandatory regulations of the Final Rule because it carried the weight of the law.

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"Unfortunately, in a lot of the controversial areas of the new regulations, there is no flexibility for schools," Henderson said. "For example, all cases must go to a live hearing and all cases must allow for cross-examination by the party's adviser."

Some aspects of the Final Rule allowed for schools to be flexible in the policy they chose, which prompted Cassalia and Henderson to ask the UR community for feedback, Cassalia said.

"The new regulations allow schools to choose the evidence standard of preponderance or clear and convincing," Cassalia said.

Under the preponderance standard, there must be a greater than 50% likelihood that evidence is true to prove a claim; the clear and convincing standard maintains that there must be a substantially greater than 50% likelihood that evidence is true to prove a claim, according to Cornell Law School.

Cassalia added that the evidence standard impacts faculty and staff in a way that it never had before because it would use the same investigative conduct process outlined for students.

SASAV members are concerned by the implementation of the same conduct process for students, faculty and staff, Mickey said.

"[Members of SASAV do not] agree that, like, the standard of evidence should be the same for faculty, students and staff because [faculty and staff] have a very different vested interest in this university compared to [students]," she said. "We're just trying to get an equal, high-quality education whereas faculty and staff, this is their livelihood, they need these wages, so it's frustrating."

The Board of Trustees will vote on which standard of evidence UR will use for Title IX hearings, Cassalia said. The Title IX coordinators do not know when the vote would occur, she said.

Cassalia said the new regulations narrowed the scope and jurisdiction of Title IX. Because of this, UR created an alternative resolution process that covers conduct that no longer falls under Title IX jurisdiction, such as sexual misconduct between a UR student and a non-UR student, she said.

"We've created a parallel process to encompass things under sexual misconduct that would occur off campus [or] outside of the United States and meet that broader definition," Cassalia said.

Henderson emphasized that all types of sexual misconduct cases should be addressed.

"[Cassalia and I] both felt it was imperative that the school be able to address [and] adjudicate all types of sexual misconduct, whether it would fall under the narrow definition of Title IX or not," Henderson said. "That's what our starting point was: to keep the campus as safe as possible, to adjudicate and investigate sexual misconduct."

There is an amnesty exception in the interim COVID-19 policies for violations of the COVID-19 framework if a student reports sexual misconduct, which is modeled after the alcohol amnesty policy, Cassalia said. The COVID-19 pandemic has not impacted Title IX hearing proceedings so far, she added. 

Mickey hopes the 2020 presidential election will lead to a new administration in the White House and the replacement of current Secretary of Education Betsy DeVos, who issued the Final Rule, she said.

If the election results in policy decisions that change Title IX regulations, those changes would be communicated to the campus community, Cassalia said.

Henderson said the Title IX coordinators welcomed feedback about the Title IX policies and would aggregate input to support the campus community as UR adjusts to the Final Rule.

"The ultimate goal is to support people who were impacted by sexual violence and connect them to the resources on campus that they need to thrive [while also] knowing that they have choices so they can make the most informed choice possible," Cassalia said. "We want to be there to support students, faculty and staff who may experience sexual violence."

Contact investigative editor Morgan Howland at morgan.howland@richmond.edu.

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