The U.S. Department of Education and the Missouri legislature are considering proposed changes to laws on campus sexual misconduct, dating and domestic violence, and stalking (commonly referred to as “Title IX” laws). We are aware of these proposed changes, and we have been actively engaged with lawmakers about them.
In November, the U.S. Department of Education released new proposed Title IX regulations. We welcome some of the proposed changes. For example, the proposed regulations would allow universities to decide whether to use a “preponderance of the evidence” or a “clear and convincing evidence” standard of proof. This is a common-sense resolution to a years-long debate in higher education policy circles.
However, we have concerns about certain provisions. For example:
- The proposed rules would require that we provide students with an attorney or adviser aligned with their interests. The compliance costs associated with this are exceptionally high.
- The proposed rules would guarantee all accused students the right to have their own attorneys cross-examine complainants and other witnesses during Title IX proceedings. This change threatens to turn an educational, administrative conduct process into a full-fledged legal proceeding. It could also discourage reporting of incidents, making it harder for universities to provide support services to impacted students.
Additionally, several of the proposed changes will likely result in unnecessary delays in resolving Title IX allegations and seem to undermine the very purpose of Title IX — to protect students (both complainants and respondents) from the academic disruption that results from sexual misconduct and Title IX allegations.
We took the opportunity to articulate our concerns in writing to the U.S. Department of Education as part of their formal rule-making process.
In addition to the proposed federal changes, legislators have filed bills this year in the Missouri General Assembly that would impact universities’ Title IX processes.
Similar to our position on the Title IX regulations, we are not opposed to the idea of legislation that guarantees a standardized set of best practices to ensure that appropriate notice, fairness and due process are part of Title IX processes at all institutions throughout the state.
However, we have several concerns about the current bills:
- To avoid conflicts between federal and state law, we think the state should wait to enact new laws on this topic until after the new federal rules are finalized and implemented.
- The bills allow students to move Title IX proceedings to the State Administrative Hearing Commission. This will delay the Title IX process and make it difficult to protect students’ confidentiality. It will also substantially increase Title IX compliance responsibilities and costs, particularly because the bills also provide for students’ rights to guaranteed legal representation, subpoena power, cross-examination and formal discovery processes.
- The bills require universities to use a “clear and convincing evidence” standard of proof. This is a higher standard of proof than would be required if a student decided to file a lawsuit in a court of law instead of initiating an internal Title IX complaint with the university’s Title IX office.
- The bills would allow students to present any evidence they wish at a hearing, and the university could not limit the type of evidence that could be presented in any way. We believe there should be rules that limit irrelevant evidence to maintain order to proceedings, prevent unreasonable delays and ensure fairness for all individuals involved.
We have been very engaged with state legislators on these bills. Jill Patterson, the university’s Title IX coordinator, met with the bill sponsors in late January to discuss our concerns. We have been assured that our concerns are being taken seriously, and we expect that opportunities will arise throughout the legislative process to advocate for changes to the bills.
We anticipate legislative hearings on the Title IX bills in the coming weeks. We plan to testify at these hearings to publicly state our concerns with the bills.
Protecting the university community
We have good Title IX processes at Missouri State University, and our Title IX office has a strong reputation as a leader in using best practices for Title IX investigations and compliance.
Our Title IX process protects students, faculty and staff from sexual misconduct, dating and domestic violence and stalking, and it provides a thorough process to promptly investigate and resolve allegations. Our process is fair, and we provide a high level of due process for all involved students.
Thanks for all you do for Missouri State!