Both the University of Wisconsin and University of Minnesota's boards of regents have recently approved changes to the way their campuses will handle sexual misconduct cases in order to comply with new rules under the Title IX federal civil rights law the U.S. Department of Education announced May 6.
The new regulations require that schools guarantee the right to live hearings and the cross-examinations between both parties. Parties aren't allowed to cross-examine during the live hearing, but advisers to the parties can do so. Both parties must be given the option to participate in a separate room using technology.
It also allows schools to use a "clear and convincing evidence" standard, which requires a higher standard of proof when determining guilt. An Obama-era policy required schools to use the "preponderance of the evidence" standard, meaning guilt is determined based on evidence suggesting it's more likely than not the misconduct took place. Schools must choose one of those two standards to use for all cases.
Under the new guidelines, the Title IX rules define sexual harassment as unlawful discrimination on the basis of sex, including sexual assault, dating violence, domestic violence and stalking.
When the new rules were announced, U.S. Department of Education Secretary Betsy DeVos said in a news release that the intent was to "restore due process in campus proceedings to ensure all students can pursue an education free from sex discrimination."
U of M System
In a special board meeting last week, the U of M Board of Regents approved the necessary changes that must take effect by Aug. 14 or schools risk litigation and loss of federal funding.
As proposed in a July board meeting, the approved changes include continuing to use the "preponderance of the evidence" standard for sexual misconduct cases.
A hearing committee consisting of faculty, staff and students from all five campuses in the U of M System will serve as the decision-makers during the hearings. At the hearings, the committee members will serve on panels of five, as opposed to three, which U of M officials originally proposed at the July meeting. Panel members will include a professional hearing officer and at least one panelist from the same classification (student, faculty or staff) as the party.
The U of M estimates it will hold between 15-25 hearings systemwide in fiscal year 2021. It also anticipates that it will be able to fill the hearing officer role for the majority of those hearings by redirecting 0.2 of an employee's full-time-equivalent hours from the University of Minnesota Duluth's Office of Student Conduct and Conflict Resolution.
In the 2018-19, the University of Minnesota Duluth received 24 reports of sexual assault. Less than 10 were investigated by the university under the complainant's request. An even smaller number of people who reported misconduct at UMD opted to initiate a formal hearing.
A single, systemwide grievance process to be used for all University members across all campuses has also been approved. During the July meeting, U of M officials said the change would avoid duplicating efforts needed to run hearing processes and promote consistent outcomes.
Advisers, or attorneys, will be allowed full participation during hearings. Schools are required to provide an adviser to parties who don't already have their own. The U of M expects to have to provide at least one, and sometimes two, advisers per hearing. Advisers conduct cross-examinations and provide opening and closing statements.
At a future meeting, the board of regents is expected to more clearly define sexual exploitation as a form of sexual harassment as well. Sexual misconduct cases can be resolved prior to a live hearing if both cases agree. However, informal resolutions are not allowed if a student makes a complaint against an employee.
In July, Lisa Erwin, UMD's vice chancellor for student life and dean of students, told the News Tribune that since the campus is used to having hearings for student cases, the biggest changes under the new rules will be how cases involving employees are handled. Misconduct cases involving employees previously utilized a single decision-maker.
On Wednesday, the University of Wisconsin Board of Regents approved emergency rules changes to comply with the new federal guidelines that will affect the investigation process at all campuses, including UW-Superior.
The changes must be approved by Gov. Tony Evers before they can go into effect. In June, Wisconsin and Minnesota were among several states that filed a legal challenge to block the new rules, though Evers has approved statements of scope outlining the changes. Later this year or early next year, the UW Board of Regents will consider permanent rules. UW officials will seek public comment in October or November prior to the permanent ruling.
During the meetings, some regents expressed frustration for the federal expectation that schools restructure how they investigate misconduct cases in such a short amount of time, and while busy trying to figure out how to navigate education during the pandemic.
While the new federal guidelines narrow the scope of conduct that Title IX applies to, the resolution that the Board of Regents approved states that the UW System will remain committed to addressing all forms of sexual misconduct using the system's conduct codes, even if it doesn't fall under the federal definition.
The UW System will also continue to use the "preponderance of the evidence" standard.
“UW System campuses are committed to providing a learning and working environment free of harassment, discrimination, and violence," said Interim UW President Tommy Thompson. "We will continue to aggressively enforce violations of law and our policies.”