Universities in Maryland could be forced to adopt more courtroom-style proceedings to adjudicate sexual assault complaints on campus as last week’s proposed federal Title IX guidelines intersect with a recent Maryland law.
The U.S. Department of Education last week proposed Title IX rules that would overhaul guidance issued under the Obama administration. The new rules could allow for more cross-examinations of victims and a higher standard of evidence in these cases, both changes that men’s rights groups had lobbied Education Secretary Betsy DeVos to implement.
Maryland universities are still reviewing the proposed rules. The Department of Education will be collecting public input until it finalizes the rules next year.
For now, Maryland schools will continue to follow the Obama administration’s guidance.
“We do not anticipate any changes in our policy during the comment period,” a spokesman for Johns Hopkins University said in a statement. “We will follow developments closely, but remain dedicated to prompt, fair and effective resolution of complaints of sexual misconduct, including sexual assault. We are fully committed to a policy and process that are thoughtful, supportive and responsive to the complexities of addressing sexual misconduct on college and university campuses.”
The Obama rules called for more investigation of sexual assault complaints and told schools to use the “preponderance of the evidence” standard. The DeVos rules would allow schools to use the more stringent “clear and convincing” evidentiary standard.
Public universities in Maryland use the “preponderance of the evidence” standard in all of their campus disciplinary hearings and will likely continue to use that standard in Title IX cases.
As Maryland universities navigate the new federal regulations, they will also have to keep in mind a state law, passed this year, similar to some of the Obama guidance.
“Over the past decade, our universities have developed policies and procedures that comport with federal guidance and best practices in addressing sexual misconduct,” a University System of Maryland spokesman said in a statement. “Earlier this year, the Maryland General Assembly approved legislation reflecting federal guidance provided by the Obama administration. We will be closely examining the proposed federal regulations and, going forward, will ensure that we continue to remain in compliance with all applicable laws.”
The new federal rules also allow for the cross-examination of victims during Title IX hearings, though the victim could request that the alleged assailant not be in the room during this questioning.
Universities in Maryland worry that cross-examination makes Title IX proceedings too similar to a courtroom. But this year’s state legislation could also exacerbate that issue.
That law calls for universities to provide attorneys to students involved on both sides of the process, paid for by the Maryland Higher Education Commission. The law applies to both private and public universities.
Backers of that state law also want to make sure proceedings do not turn into trials.
“It is critical that we prevent school proceedings from turning into trials,” Lisae Jordan, executive director of the Maryland Coalition Against Sexual Assault, wrote in an email. “Maryland’s law was crafted specifically to avoid cross-examination and instead provides for the right to suggest specific questions to be posed to the other student and the right to provide and hear testimony out of the physical presence of the other student. This provides both sides with the rights and protections needed for a fair proceeding.”
In addition to weighing the proposed federal rules, the state law mandates that all universities in Maryland come up with a revised sexual assault policy meeting the law’s parameters by Aug. 1 next year.
Even as Maryland universities must consider how to balance the federal guidelines and the state law, there is third constituency they have to consider: their own campuses. Sexual assault has become a dominant issue for students on campus and student leaders often put pressure on administrators to ensure cases are taken seriously.