“The Department of Education is not living in the real world. As a result of the pandemic, virtually every college and university in the country is closed. Choosing this moment to impose the most complex and challenging regulations the agency has ever issued reflects appallingly poor judgment.
We pleaded with the department to hold off issuing these regulations at a time when campuses across America are shuttered until further notice. Faculty, staff, and students are doing their best to adjust teaching, learning, and research to a new world without any personal interaction. It is a time of high stress, heroic efforts, and extraordinary adaptation.
Today’s release of these regulations, with an incomprehensible mandate to fully implement them by August 14 is as cruel as it is counter-productive. The department certainly knows how involved and complicated these regulations will be for our colleges and universities because it has taken it nearly three years to develop them. Typically, the Department of Education gives colleges and universities at least eight months to implement new regulations. But in this case the department expects colleges and universities to implement them in just over three months, and when the institutions are closed. This is irrational, unrealistic, and completely at odds with the Trump administration’s oft-repeated statement to tread lightly when imposing complex new regulations.
We urgently implore the department to re-think this. If it does nothing else, the department should postpone the effective date to the summer of 2021 to enable sensible planning and adoption of campus processes and procedures.
Even in normal times, implementing these Title IX regulations was sure to be enormously complex and burdensome. There is no magic wand that will enable campuses to put these new regulations into effect. Doing it effectively requires coordinated, intensive, in-person effort across multiple campus departments and constituencies, including students, to identify, review, and change existing policies and procedures in a considered and sensible manner. But this is practically impossible right now, and surely will remain so into the summer.
As for the substance of the regulations, we are disappointed that they fail to address serious concerns expressed by ACE and our member institutions who must implement them. The regulations will undermine college and university efforts to effectively, fairly, and compassionately combat sexual harassment and treat both parties equitably when investigating and resolving campus sexual harassment and assault cases.
This package of mandates represents the worst in regulatory overreach. The department’s extraordinary micromanagement is likely to heighten confusion and concern, discourage survivors from coming forward, and impose on every campus in America a “one size fits all,” court-like framework that is antithetical to the campus educational environment and institutional disciplinary processes.
When we submitted our Jan. 30, 2019, comments on the proposed regulations, we stressed this central concern about the problems associated with the imposition of such a legalistic process. We made a series of recommendations to address the problematic areas of the proposed regulations, such as the proposal to require that live hearings permit direct court-like cross-examination of both the survivor and the accused by the other party’s advisor. This type of highly contentious, hostile, and emotionally traumatizing approach has obvious drawbacks.
We urged the Department of Education to remove the mandate for confrontational cross-examinations during live hearings, and offered sensible alternatives that could be permitted, such as a process whereby parties ask the presiding panel or individual presiding over the hearing to pose follow-up questions requested by the other party. We also emphasized the need to provide flexibility to institutions, including being able to use investigative and decision-making models that may not culminate in a live court-like hearing, but still permit each party to test the credibility of the other party and witnesses.
We are continuing to review the 2,033-page package, but, based on our initial read, we are dismayed that the final rule rejects virtually all of our recommendations and turns student disciplinary proceedings into legal tribunals that will tip the scales in favor of those who can afford to pay for high-priced legal pit bulls. In addition and especially in the current crisis, as we stressed above, the dictate that institutions revamp current Title IX procedures in just the next few months in order to put these dramatic and ill-advised changes in place is also very troublesome.
Colleges and universities will continue to strive to create and maintain campus environments that are safe, supportive, and responsive for all students. Indeed, the requirement to provide campus disciplinary proceedings that are prompt and equitable is at the heart of Title IX, and what all institutions strive to achieve. It is deeply disturbing that these regulations, far from aiding that effort, actually make it more difficult for institutions to do the right thing and effectively and compassionately address the scourge of campus sexual assault.”