Some of Maryland’s top higher education leaders told a state Senate panel Thursday that they do not see a lot of positives in the federal Department of Education’s proposed regulations on handling sexual assault and misconduct allegations under Title IX.
Last fall the Department of Education proposed Title IX regulations that could force universities to alter sexual misconduct policies that previously had been revamped under the Obama administration. More than 96,000 comments were submitted by Wednesday’s deadline to respond to the proposals.
“In general I would say we have some concerns, but we are hoping that through the regulatory process, they will be ironed out, they will be coordinated with what we are able to do with the state, and we will be able to go forward with something that makes sense,” University System of Maryland Chancellor Robert Caret told the Senate’s Education, Business and Administration Subcommittee of the Budget and Taxation Committee. “But there are some challenges right now.”
Last November, the Department of Education overhauled guidance for sexual assault cases on campus 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.
The rules also allow schools to limit the number of mandatory reporters — personnel who have to report an incident to the Title IX office — and limit a reportable offense to one that happens on university property or at a university event.
Taken altogether, the proposals appear to meet Education Secretary Betsy DeVos’ goal of providing more rights to the accused in Title IX cases.
But schools have been working to overhaul their sexual misconduct and sexual assault properties in response to the Obama-era guidance and to a growing discussion around these issues on campus and in the workplace.
At the top of education officials’ concerns is the cross-examination requirement. They fear it could turn Title IX hearings and investigations into something approximating a court procedure.
“I think the general consensus is that universities are just not set up to be tribunals,” David Wilson, president of Morgan State University, told the panel. “And we don’t know what that would look like in terms of trying to turn universities into courtrooms. And so we are very very leery about that, and I think at the end of the day what you are hearing from all of us is pretty much the same thing.”
Maryland universities are also concerned about which standard of evidence to use.
The Department of Education proposals would allow schools to use either the “clear and convincing” evidentiary standard or the “preponderance of the evidence” standard.
Most Maryland universities use the preponderance of the evidence standard. Allowing them to keep that standard was the one part of the department’s proposal that Tuajuanda Jordan, president of St. Mary’s College of Maryland, said she was happy with.
But within that flexibility, there are still reasons to be concerned, said Tina Bjarekull, president of the Maryland Independent College and University Association, which represents the state’s private colleges.
“But what the federal government, what the U.S. Department of Education has said is, if you use preponderance of the evidence for any disciplinary hearing with the same kind of punishment, that you have to use that same standard for every other complaint,” she told the panel. “That’s problematic because some things you can have clear and convincing evidence and it is much more important to do so when you are talking about an academic violation, for example.”
One change highlighted a possible positive development for universities from the proposal. It would cut back on investigations into how universities handle Title IX complaints.
“There are campuses that have been for six or seven years on this list not even knowing why they are being investigated,” Caret said. “So I think there are some positives here, but that may be the only one.”
At the same time as Maryland universities have to respond to these federal guidelines, they also have a separate state law to comply with. That law, passed by the General Assembly last year, requires all universities in the state to provide their governing board with a sexual assault policy by Aug. 1.