In August, the U.S. Department of Education implemented changes to federal Title IX regulations, causing universities around the country — including the University of Oregon — to adjust their own Title IX rules and standard operating procedures in response.
Both the federal changes and some of UO’s new rules have raised concerns for putting unnecessary burdens on the complainant, or the person who files the complaint.
Title IX prohibits discrimination on the basis of sex in any education program receiving federal financial assistance in the U.S., according to the federal Title IX website. Sex discrimination also includes sexual harassment, it said.
Cheyney Ryan is a former UO law professor and currently a senior fellow at the University of Oxford. Ryan looked through UO’s student conduct process and was surprised to see it had been substantially revised, he said, and he hasn’t found anyone who really knows about the changes.
Nicole Commissiong, UO’s Title IX Coordinator, said the Office of Investigations and Civil Rights Compliance provided formal notice of the new procedures to the Associated Students of the University of Oregon — as well as notices to key administrative leaders — in August.
“The office also put significant effort into updating the language on its public website to reflect the details of those changes,” she said.
Ryan’s first concern was with the investigation phase of UO’s standard operation procedures.
Under Section 3a, the process says: “Parties must provide names, contact information, and a summary of expected information for any proposed Witnesses, and any relevant documents, within 10 business days of receiving the Notice of Allegations.”
The issue here, Ryan said, is that only 10 days are allowed for parties to provide this information. Collecting this information can’t be done in just over a week, he said, especially in a situation where a complainant just went through a traumatizing experience.
“Why is that even necessary?” he said.
Ryan said he compared UO’s regulations with those from schools like Stanford University and Oregon State University. He couldn’t find anything similar to the 10-day timeframe in their rules.
One UO student who reported sexual harassment in 2018 — before the new rules were in place — said a 10-day deadline would be tough for anyone, especially those recovering after experiencing sexual harassment or assault.
“It could take a survivor or victim more than 10 days to even understand what happened to them,” he said.
Commissiong said this type of deadline is an attempt to get the investigation underway and not cause further delay in a process that can already take months.
“The idea is that we want to get started in a timely manner, but where we need to give students extra time to accomplish things throughout the process, we do that,” she said. “I don’t think people should read these to say that, ‘if you don’t do it within 10 days, we’re not going to pay attention to your witnesses,’ because that’s absolutely not true.”
Another of Ryan’s concerns has to do with changes made on the federal level.
According to the federal Title IX website, “all students now have the right to a live hearing where advisors conduct cross-examination.” This is part of a set of rules intended to restore fairness, it said.
“If the goal is to find out whether harassment or assault occurred,” Ryan said, “is it necessary to have each side cross-examine the other to get the right answer to that?”
Ryan said he questions if cross-examination brings any benefits to investigating student conduct, and he actually sees more of a benefit in not requiring people to cross-examine each other.
Commissiong said cross-examination occurred at UO and other universities before the federal rule changes. At UO, the cross-examination used to be indirect and facilitated by the “Decision Maker” at the hearing. Now, it’s more direct, and party advisors ask questions to each other directly.
Decision Makers can decide not to allow questions, Commissiong said, and even remove an advisor from the proceeding if they are being aggressive.
“We’ve had a couple of hearings so far,” she said, “and the cross-examination has not been an issue.”
Both the federal rules and UO’s guidelines say that students can request to be in separate rooms or participate remotely. Even so, Ryan said he thinks cross-examination is unnecessary.
UO’s procedure says the cross-examination will occur during the Administrative Conference. The conference “is an administrative proceeding not comparable to a criminal or civil trial,” the guidelines said.
UO states that parties are not required to attend the conference. If a party chooses not to attend, their advisor, or chosen representative, can still attend. If neither the party nor their advisor attends, “the University will provide an Advisor to conduct cross-examination on behalf of the Party whose previously designated Advisor does not attend.”
Just from looking at the guidelines, a party has no idea who the provided advisor will be, Ryan said, and he is concerned it could be someone with no interest in fighting for them.
“The cost of not participating can amount to basically knowing you’ll lose the case,” Ryan said. “Then, someone who doesn’t want to participate isn’t going to make a complaint in the first place.”
The same UO student who reported harassment in 2018 said he wouldn’t feel comfortable being represented by someone he didn’t trust.
“My voice would be weakened,” he said.
For a number of years, UO has had a designated complainant advisor who works in the law school’s Domestic Violence Clinic, Commissiong said, and UO has contracted a respondent advisor who works at a local law firm. The advisors are not listed in the standard operating procedures.
Both advisors work with students confidentially, she said, and do not share information with university officials without the consent of the student.
Students have the opportunity to work with advisors throughout the entire student conduct process, she said, not just in the conference as the guidelines suggest. They can also work with a “support person” as well as others for further emotional support.
Ryan said he’s concerned that, although complainants have the right not to attend an Administrative Conference, there could be consequences if they make that choice . Another of his biggest concerns involves the consideration of evidence at the conference.
UO’s standard operating procedure says: “When considering allegations of Title IX Sexual Harassment, if a Party or Witness does not submit to cross-examination at the Administrative Conference, the Decision-maker must not rely on any statement of that Party or Witness (including statements relayed through third parties or in writing) in reaching a determination regarding responsibility.”
Commissiong said this rule is required by current federal regulations.
Ryan said he finds this to be a major deterrent to reporting sexual harassment. He interprets it as someone saying, “I want to submit a complaint, but you can’t rely on anything I say about it.”
If this is what it means, Ryan said, why would anyone bother making a complaint?
Commissiong said she recognizes why many people are frustrated with the federal Title IX regulations. Because of federal rule changes, she said, UO’s own guidelines had to become more prescriptive and rule-heavy.
UO must follow certain procedures and guidelines to abide by federal regulations, Commissiong said, and some aspects of the operating procedure are not negotiable.
However, UO can adjust other aspects of the procedure to accommodate student needs, she said. For example, if a student has a family emergency, they can request more time throughout the process. Or, if an important witness decides to participate late in the process, UO can make time to interview them.
Commissiong said there are aspects of Title IX regulations that improved in August, including allowing students to seek alternative resolution if both parties agree to it.
UO’s new guidelines also allow advisors to make requests and communications on behalf of a complainant or respondent, which Commissiong said actually lessens the burden on students. Previously, students had to ask questions at hearings, too, but advisors now do this.
Ryan said he’s glad UO students now have the option to appeal a final decision, too.
Commissiong said UO goes through the standard operating procedures for Title IX annually to think about lessons learned and consider ways to make it more clear for students.
Even since August, Commissiong said, the Title IX office revisited a section of the guidelines around Violation Agreements and simplified the language.
Ryan said he doesn’t completely understand some of UO’s guidelines, and he is concerned that a student wanting to report harassment might be deterred by the confusing procedure.
“I’m a [Senior Fellow] at Oxford University; I don’t understand what this says,” he said. “So, that’s not a good sign.”
Commissiong said the Title IX office listens to student concerns to help decide which parts of the procedure may need revision. Students with concerns about the procedure can reach out to the Domestic Violence Clinic, the Dean of Students office, Deputy Title IX Coordinators or email Commissiong directly, she said.
Recently, the Biden administration asked U.S. public institutions to provide feedback about Title IX regulations, Commissiong said, and she was working on compiling thoughts and recommendations to submit on December 17.
On November 18, OSU president F. King Alexander announced that he was engaged in “personal communications” with federal leaders and members of President-elect Joe Biden’s transition team, partially to work on rolling back the Title IX regulation changes that “create problematic barriers for reporting.”
Ryan hopes the Biden administration will adjust the federal Title IX regulations to ease the burden on complainants, he said. His biggest concern is that aspects of the federal regulations and UO’s regulations will deter people from reporting.
“The number of reported cases is only a proportion of the number of assaults and stuff that happen,” Ryan said. “So, the biggest worry you have is that people will simply not report this at all. That’s why there’s the worry about, well, what is achieved by adding further things to discourage people from participating in it?”