The University of Minnesota System is just one of countless public education institutions currently discussing how to make the required changes to their Title IX policies on sexual misconduct following the U.S. Department of Education's new regulations issued May 6.
Schools have until Aug. 14 to make the required changes, all while trying to navigate how to continue offering higher education during a pandemic and period of widespread economic downturn.
The federally required policy changes — once approved during a special University of Minnesota Board of Regents meeting later this month — must secure due-process rights for both those who report sexual misconduct and those accused by guaranteeing the right to live hearings and cross-examinations of both parties.
Lisa Erwin, the University of Minnesota Duluth's vice chancellor for student life and dean of students, said the cross-examination will lead to some of the biggest changes in the hearing process in student cases.
"But the real changes for our university and for the system are on the employee side. Currently a matter like this would be investigated and then a single decision-maker would make the final determination of responsibility. Now that's going to be a live hearing," Erwin said. "We're accustomed to having hearings on the student side."
As the Title IX coordinator for UMD and someone who oversees student conduct, Erwin has been in regular conversation with those in the system who are doing the policy drafting.
As the system moves toward approving the policy changes, she hopes it can hang onto a survivor-centered, trauma-informed approach to handling sexual misconduct cases. This gets more challenging when cross-examination comes in the process, Erwin said.
Many find this piece of the new regulations controversial, and say the live questioning could re-traumatize survivors and even those accused. Minnesota and Wisconsin were two of 18 states that filed a legal complaint against the federal regulations that addressed those cross-examination concerns. The complaint alleges that the regulations will reverse decades of work to end sexual misconduct on campuses, leaving students with less protections.
While the new federal regulations don't allow the parties to question and cross-examine each other during a live hearing, they do allow the parties' advisers to do so. Parties must be given the option to participate in the live hearing and examination from a separate room using technology. And before a respondent can answer a cross-examination, the decision-maker must first determine if the question is "relevant."
"I think the spirit of the new regulation is around fairness and that is very much consistent with our goals for our processes," Erwin said, though she also added that she has not been previously concerned with a lack of fairness toward people who have been accused of misconduct at UMD.
"I'm really hopeful that we'll be able to continue to offer the fair processes that really address a serious issue on campus," she said.
In the 2018-19, the University of Minnesota Duluth received 24 reports of sexual assault, and of that number, fewer than 10 were investigated by the university under the complainants request. Currently, only a small number of people who report misconduct at UMD opt to initiate a formal hearing, which they can do if they're not satisfied with the findings of an informal resolution.
Proposed policy changes
Following a presentation from U of M System employees working on coming into compliance with the new regulations in a limited timeframe, the U of M Board of Regents discussed the proposed policy changes Tuesday ahead of a vote later in July.
While the regulations allow schools to use either a “preponderance of the evidence” standard, meaning guilt is determined based on the most convincing evidence presented, or a "clear and convincing evidence" standard, which requires a higher standard of proof, schools must select a single standard to use in all hearings.
The U of M has proposed using the "preponderance of the evidence" standard.
A single, systemwide grievance process has also been proposed in order to avoid duplicating efforts needed to run hearing processes and promote consistent outcomes.
Creating a systemwide hearing committee to serve as the decision-makers during the live hearings has also been proposed. Under the proposal, each committee would include three people: a professional hearing officer and one panelist selected by each party from a list.
Regent David McMillan, of Duluth, said he supports a more streamlined, centralized approach and questioned the interest and availability levels of panelists who need to be recruited to participate in the hearings. The panelists would determine disciplinary sanctions in students cases and make recommendations for disciplinary sanctions in employee cases.
"I know we want and I want the most diverse panels we can find. We want panels that are willing to step up and do it," McMillan said. "As we think of the various ways to go and create the processes ... who's willing to do this?"
Tina Marisam, director of the Equal Opportunity and Affirmative Action for the U of M and Title IX coordinator, said that in the past, when selecting panelists to serve on panel for a hearing, provosts solicited a call for applicants.
"In the past, we have had plenty of interest of individual students and staff who are willing to step up and serve on the panel, which is quite a testament to our community because this is very time-consuming work. It's also emotionally laborious work," Marisam said.
Under the proposed changes, Marisam said workload will go up in part due to more requirements and process steps.
Cases can be resolved prior to the live hearing process in circumstances when both parties voluntarily agree, but an informal resolution is not allowed when a students makes a complaint against an employee, Marisam said. In those instances an entire hearing process is needed.
The federal regulations require schools to allow advisers to the parties to be present for the live hearing. Further consideration is required regarding whether to allow advisers to be present during other parts of the process as well, said Brian Slovut, deputy general counsel for the U of M.
Parties that do not have an adviser must be provided one by the university. There's also the question of who should serve as an adviser.
"We will be faced with situations where one party, usually it will be the respondent, will have an attorney and the other party will not have their own adviser and the university will need to assign an adviser to that person," Slovut said. "Ideally, the adviser provided by the university would have the skills, experience and training to effectively present that party's perspective."
Depending on the path the system takes, the cost of providing advisers could potentially be "very significant," Slovut said. If the university can't find the sufficiently skilled and experienced individuals within the system, the university will need to add additional staff.