Proposed Title IX guidelines could force GW to abandon single-investigator model

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Betsy DeVos, the education secretary, released guidelines Friday that would allow institutions to dismiss reports of off-campus assault, require cross-examination during investigations and use a more stringent standard for determining guilt.

Updated: Nov. 19, 2018 at 12:47 p.m.

A series of proposed changes to federal Title IX procedures could require GW to alter its Title IX policy and eliminate the single-investigator model for sexual violence cases.

The guidelines, released by the Department of Education Friday, also allow institutions to dismiss reports of off-campus assault, require cross-examination during investigations and use a more stringent standard for determining guilt. Officials declined to say how the changes would affect students, but Title IX experts said they would deter survivors from coming forward to report assaults.

University spokeswoman Maralee Csellar said GW takes issues of sexual misconduct, sexual violence and its obligations under Title IX “very seriously.” She said University officials are still reviewing the proposed regulations and are evaluating how they align or don’t align with GW’s current practices.

“The University is committed to fully supporting survivors, providing an equitable process for complainants and respondents and treating appropriately those who are found responsible for engaging in sexual misconduct or sexual violence,” Csellar said in an email.

Csellar said officials will continue to monitor the proposed guidelines and the education department’s feedback period, during which colleges and other institutions can comment on the proposal.

“It is premature to consider changes to our policies based on proposed regulations,” Csellar said. “In the meantime, the current policies and practices will remain in effect.”

She declined to say how the proposed changes would affect students and if the University will release a formal response to the proposed changes or engage with the Department of Education during the comment period on the proposal, which began Friday.

Csellar also declined to say how University officials reacted to the proposed prohibition of a single-investigator model, which officials implemented for the first time in July after years of using a six-person faculty and student hearing board to investigate cases.

Eliminating the single-investigator model
Following a yearlong review of GW’s Title IX procedures, officials announced in May that they would employ a single investigator to consider complaints.

Eight of GW’s 12 peer schools use a single-investigator model or a hybrid model, where the facts and findings collected by the investigator are then used by a hearing board to determine the outcome of the case.

The proposed guidelines would prohibit the use of a single-investigator model to eliminate “conflict of interest” or “bias.” But Title IX experts said the switch could create a more traumatic reporting experience for survivors because it would mean recounting their experiences in front of more people.

Russell Froman, the Title IX coordinator at the University of Florida, said moving away from a single-investigator model could be beneficial if the practice prevents an administrator from developing favoritism toward a student during their case. But he said that ultimately, a single-investigator model creates a more supportive process that encourages survivors to report because they are less intimidated by one-on-one case work than recounting their experience to a handful of people.

“I am opposed to the hearing process requirement for the reasons of creating yet another hurdle for reporting parties to have to overcome in order to get their story heard and dealt with,” Froman said.

Katherine McGerald, the executive director of SurvJustice, a nonprofit based in D.C. that advocates for survivors of sexual violence, said schools should push back against the proposed guidelines during the required 60-day comment period, which she said falls during a “horrible time” because the period includes Thanksgiving and final exam season.

“They made changes to address sexual violence, and now these proposed changes are really a step backward,” McGerald said.

Alan Sash, a partner in the litigation department at McLaughlin & Stern who has worked on Title IX cases, said any person or entity can comment on the proposed Title IX policies. He said the Department of Education will review the comments and could amend or modify the proposal based on received feedback – but changes are unlikely.

“The U.S. Department of Education has studied this issue for a long time now and has heard from all sides,” Sash said in an email. “I don’t think that it is going to hear anything that it hasn’t heard before.”

Off-campus assault reports dismissed
The proposed guidelines would nearly eliminate a student’s ability to report off-campus assault, which McGerald, the executive director of SurvJustice, said is a “big change” because a lot of student activity happens off campus.

She said the move means universities would turn a “blind eye” to assault if it happens in off-campus areas, like Greek townhouses.

“It would discourage students from reporting at all,” she said. “Depending on the area, I’m not sure law enforcement is seen as necessarily a friendly place for survivors to go. I am a former prosecutor, so I say that sadly.”

Jess Davidson, the interim executive director of End Rape On Campus, said not requiring schools to investigate incidents of sexual misconduct off campus prevents thousands of survivors who are assaulted at student organization events or off-campus parties from reporting at all. She said nearly nine out of every 10 college students live off campus in the United States, and the change would isolate most of a university’s student body.

GW students are mandated to live on campus through their junior year, though juniors can enter an annual housing lottery to dodge the requirement.

“We know that a sexual assault which takes place off campus can wreak just as much havoc on the student’s education and well-being as one that takes place on campus,” Davidson said.

Davidson said that just because a survivor is sexually assaulted off campus doesn’t mean the incident will not have an impact on their ability to focus in class because they might still see their perpetrator in courses, dining halls or campus buildings.

More rights for the accused
Sage Carson – a manager for Know Your IX, a youth and survivor advocacy group – said the new guidelines could give more rights to the accused in a Title IX hearing. She said the proposed changes allow a university to choose between the preponderance of evidence standard – which bases decisions on if a situation is more likely to have occurred than not – and the clear and convincing evidence standard, which is a more rigorous standard to meet.

Betsy DeVos, the education secretary, rescinded Obama-era sexual assault protections in September 2017 that directed universities to use the preponderance of evidence standard. Interim guidelines at the time allowed colleges to decide between the two standards.

Carson said that because a school can choose which standard to use, a university could mandate a more likely than not standard for a simple assault but utilize the clear and convincing standard for a sexual violence investigation – a practice she said would be “wholly inappropriate.”

“They’re exceptionalizing campus sexual violence by using different standards for sexual violence, and not applying those same standards across the board,” she said.

But Joseph Lento – an attorney for Lento Law Firm, a firm focused on student defense based in New Jersey and Pennsylvania – said the changes to Title IX policies are long overdue because universities have frequently received complaints from both accusers and the accused about the process. He said that rather than place a greater emphasis on the accused, the proposed guidelines will make Title IX processes “more equitable.”

“I’d say it is a step in the right direction,” Lento said. “I fight the good fight every day and just knowing how things can be, these are tough, exhaustive cases from both perspectives, the perspective of a complainant and a respondent.”

Paige Morse, Lauren Peller, Shannon Mallard and Diego Mendoza Diaz contributed reporting.

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