As universities across the country prepare for an unprecedented academic year because of COVID-19, they are also working to implement the U.S. Department of Education’s new Title IX regulations, which are scheduled to take effect Aug. 14.
The new rules released on May 6 require significant shifts in colleges’ and universities’ policies and procedures for investigating and adjudicating violations of their sexual misconduct policies.
For example, many universities, including Vanderbilt, will need to shift from using a single investigator model, where the facts are collected and the findings are determined by the investigator, to a live hearing model, in which an adviser for each party is permitted to ask the other party and any witnesses relevant questions.
During the U.S. Department of Education’s rulemaking process, Vanderbilt was one of a number of universities to express concern about a “one-size-fits-all” approach to responding to sexual misconduct reports that would limit universities’ ability to tailor policies and procedures for their campuses. The institutions also noted that a potentially adversarial, hearing-based system that includes cross-examination could chill participation by complainants, witnesses and respondents—thus undermining institutions’ efforts to address sexual misconduct.
“While we will honor our obligation to comply with the requirements of these new regulations, we will maintain Vanderbilt’s firm commitment to fostering a safe and welcoming campus for everyone. Sexual misconduct is unacceptable, and, in areas where the new rules allow for discretion, we are making decisions to exceed the guidelines—using them as the ‘floor,’ not the ‘ceiling’—as part of our commitment to addressing sexual misconduct in all forms,” Stephanie Roth, interim associate vice chancellor for Title IX and Equal Employment Opportunity, said.
“We are using our discretion particularly with regard to defining behaviors that would violate the university’s sexual misconduct policy and those who will be designated as mandatory reporters at the university,” Roth said. “It is imperative that our campus is a safe, inclusive and welcoming environment for everyone.”
At Vanderbilt, a working group of campus stakeholders—representing Title IX and Student Discrimination, Project Safe, Student Accountability, Equal Employment Opportunity and the offices of the Provost and General Counsel—has been examining the complex new rules to ensure they are implemented in a manner that protects the well-being and safety of the Vanderbilt community and respects the rights of everyone involved.
While the group is still finalizing the details of new policies and procedures that will be implemented at Vanderbilt, the university has made some initial decisions within the discretionary areas of the new regulations. These include maintaining the preponderance of the evidence or “more likely than not” standard for adjudicating cases; continuing to broadly define “mandatory reporter,” or those required to report sexual misconduct and retaliation to the university; and continuing to broadly define the behaviors that constitute sexual misconduct. For example, the sharing of sexually explicit images or videos of a person online without their consent is a behavior that is not specifically addressed in the new regulations but will continue to be defined as sexual misconduct under Vanderbilt’s policy.
The university will more fully roll out its new Title IX process through a series of communications near the start of the academic year.