Changes coming for OIE investigations

There has been a lot of dialogue in the news regarding how universities conduct investigations of campus sexual misconduct, including changes in the way the courts and the U.S. Department of Education interpret the federal law known as Title IX of the Education Amendments Act of 1972, which prohibits gender discrimination in federally funded education programs. Rob Kent, MSU’s Interim Associate Vice President for Civil Rights and Title IX Education and Compliance, takes a look back on what happened and forward to how the changes may affect MSU.

What changes have been made to Title IX?

No changes have been made to Title IX itself, but there are two significant developments that impact how the law is interpreted and applied — one from the Sixth Circuit Court of Appeals and one from the U.S. Department of Education. These developments will eventually impact the way Michigan State investigates reports of relationship violence, stalking and sexual misconduct.

What happened at the Sixth Circuit Court?

On Sept. 7, 2018, in a review of the University of Michigan’s Title IX investigation process, the US Sixth Circuit Court concluded that when credibility is at issue in a sexual misconduct case, universities are constitutionally required to give the respondent, or someone they designate to represent them, an opportunity to cross-examine the claimant and any witnesses they bring forward in the presence of a neutral fact-finder. The claimant has the same right to cross-examine the respondent and any witnesses they bring forward.

This decision by the court now requires MSU, and all other public universities in the Sixth Circuit’s jurisdiction, which includes Michigan, Ohio, Kentucky and Tennessee, to make changes to their Title IX investigation policies to allow for cross-examination.

What happened at the Department of Education?

On Nov. 29, 2018, the U.S. Department of Education published proposed rules that would significantly change the way universities investigate and decide incidents of sexual misconduct under Title IX. The proposed rules would:

• Likely require a change in MSU’s standard of proof from a preponderance of the evidence, which means that the evidence is “more likely than not” to prove the incident occurred, to clear and convincing, which means the evidence is “highly and substantially” more likely to be true than untrue.
• Limit application of Title IX to incidents that occur on university property or in connection with a university activity.
• Limit the number of employees on campus who are required to be mandatory reporters.
• Require MSU to change from its single-investigator model, where one neutral person conducts the investigation and decides whether the policy is violated, to a model where the decision-maker is not the person who conducted the investigation.
• Require all universities, even those outside of the Sixth Circuit, to hold a live hearing where cross-examination can be conducted through representatives of the accused and accuser.

The department published its proposed rule changes in the Federal Register for the “Notice and Comment” period of the rulemaking process. Interested parties have until Jan. 28, 2019 to provide comments back to the Department of Education on the proposed rules. After review of the comments, the department can choose to include suggested changes before publishing its final rules. It is expected that the final rules will be published in the spring, with an effective date later in the fall.

What does the Sixth Circuit ruling mean for MSU’s efforts to prevent and investigate incidents of stalking, relationship violence and sexual misconduct?

Michigan State is required to follow the mandates of the court’s decision and make corresponding changes to its Relationship Violence and Sexual Misconduct policy to include a live hearing component under certain conditions.

Once we learned of the court’s decision, we began working with campus experts and stakeholders to develop procedures that minimize the impact these required changes will have on all participants. While we have not fully developed the changes to our RVSM policy to conform to the Sixth Circuit’s recent requirements, our experts suggest the following:

• When credibility is at issue, an opportunity for cross-examination of adverse parties and witnesses will be offered in the form of an “online hearing.” Online hearings will occur remotely, and will not require the parties be in close proximity to one another.
• The claimant and respondent must use an adviser of their choice to conduct the cross-examination. If parties do not have their own advisers, MSU will have advisers available to them.

We will continue to keep students, faculty and staff informed along the way and before any formal changes take place, which are anticipated at the beginning of spring semester, 2019.

What does the Department of Education proposed rule changes mean for MSU’s efforts to prevent and investigate incidents of stalking, relationship violence and sexual misconduct?

MSU has significant concerns regarding the impact of the Department of Education’s proposed rules.

We designed our current Title IX policy — MSU’s Relationship Violence and Sexual Misconduct policy — to:

• Ensure the university has notice of reports of stalking, relationship violence and sexual misconduct;
• Conduct a full and fair investigation of reported conduct by a neutral investigator in a way that allows both claimants and respondents to participate without being subjected to undue trauma, and;
• Allow the neutral investigator who is an expert on MSU’s policy and has in-depth knowledge of the case to determine whether the policy was violated. The policy was designed to comply with existing law and is continuously updated to reflect best practices and changes in how the law is interpreted.

Again, we are working with experts and stakeholders to review the proposed rules and analyze the effect they would have on our Title IX investigation process and MSU community members. The university is also in discussions with colleagues within the Big Ten, other peer institutions and representative groups including the Association of American Universities (AAU) and the Association of Public and Land-grant Universities (APLU) to determine the most effective way for Michigan State to provide comment back to the Department of Education.

Upon publication of the final rules, MSU will work with campus experts and stakeholders to make changes that meet or exceed legal mandates and further MSU’s commitment that it will not tolerate sexual violence or misconduct in our community.