‘U’ community circulates petition with demands regarding new Title IX regulations

Wednesday, May 13, 2020 - 9:06pm

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More than 300 University of Michigan community members have signed a petition regarding the University’s sexual misconduct policy following last week’s newly released Department of Education Title IX regulations. The petition has seven specific demands about investigation time limits, evidentiary standards, processes to resolve off-campus assault and more. 

The petition was created by LSA senior Morgan McCaul, a sister survivor and sexual violence prevention advocate, alongside student-run non-profit Roe v. Rape, a survivor empowerment organization. They are asking University administration to agree to commit to their demands in a written statement before June 1. 

In a previous Daily article, University spokesman Rick Fitzgerald wrote it will take time to understand how these new regulations will affect University policy. Fitzgerald reiterated this sentiment when asked whether University administration plans to consider the petition’s demands. 

“We are not able to share anything further until we have a clear understanding of the impact of these new regulations across several U-M policies,” Fitzgerald wrote. 

The new regulations, announced last Wednesday by U.S. Secretary of Education Betsy DeVos, come after her department rescinded Obama-era guidelines in 2017. According to DeVos, the new rules, which bolster due process protections for those accused of misconduct and reduce university liability in investigating misconduct incidents, “continue to combat sexual misconduct without abandoning our core values of fairness, presumption of innocence and due process.”

However, Public Policy junior Emma Sandberg, Roe v. Rape founder, called the new regulations “absolutely devastating” and said they reverse years of progress for survivors’ rights. She said these regulations will prevent and deter more people from reporting misconduct. 

“It’s going to be bad regardless,” Sandberg said. “But the best we can do with these regulations is, in these areas where DeVos leaves it up to the universities to decide, we need to make sure the University takes a clear stand and does everything they can to ensure survivors have the civil rights that they’re supposed to have.” 

Former President Barack Obama’s administration previously asked schools to complete sexual misconduct investigations within 60 days. That time limit has been rolled back alongside other Obama-era guidelines, which the petitioners worry will drag out an emotionally-taxing process for both the accuser and the accused. 

Thus, the petition demands the University to continue to maintain a 60-day time limit, with exceptions only for “substantial extenuating circumstances.” According to LSA sophomore Ceciel Zhong, Roe v. Rape outreach director, having a time limit encourages students to report misconduct. 

“Survivors have to navigate if reporting is worth it,” Zhong said. “Sexual assault is already an underreported violation of civil rights, so maintaining the time limit would at least give everyone a measurement of how long the process would take.”

Under DeVos’s new policy, universities are able to choose between implementing the “clear and convincing evidence” or the “preponderance of evidence” standard. Obama-era guidelines identified “preponderance of evidence” — meaning the evidence is “more likely to be than not so” — as sufficient for schools to find students responsible for misconduct.

The petition asks the University to continue to use the “preponderance of evidence standard,” which Sandberg noted is the typical evidentiary standard used for civil cases. On the other hand, Sandberg said a “clear and convincing evidence” would elevate the burden of proof to what is necessary for criminal cases.

One of the most consequential changes in the new regulations is that universities are no longer required to investigate sexual misconduct cases occurring off-campus during non-university sponsored programs and activities. 

According to Sandberg, sexual violence is traumatic, regardless of where it occurred. Thus, she said universities should protect students from their perpetrators, even if the incident did not occur on campus. 

“If you’re assaulted in your apartment off-campus, when you’re in the library studying, your assailant could be in the room with you,” Sandberg said. “And how are you going to be able to study if you’re aware the person who assaulted you is there, or if they’re in your class, or if you’re walking around campus and you see them on the Diag?” 

In response, the petitioners are asking the University to create a separate process outside of formal Title IX investigations for survivors to report and resolve these otherwise unaddressed cases of sexual violence. 

The petition also requests claimants reporting misconduct in these types of newly non-eligible cases continue to have access to interim measures. Interim measures — such as providing counseling services, modifying housing or work assignments, issuing no-contact directives and placing transcripts on hold — are supportive and protective actions taken after misconduct has been reported and before a final outcome or disciplinary decision has been made. 

Zhong said incidents of sexual misconduct occurring off-campus and in non-University affiliated settings are still detrimental, as having the perpetrator on campus still poses a threat to other students.

“Personally, it’s outrageous that regulations do not require schools to respond to these instances, because these cases still provide danger to the wider university communities,” Zhong said.

Additionally, the petition asks the University to bar the use of mediation in cases of sexual assault, rape, domestic or dating violence and stalking associated with that violence. Know Your IX, an organization working against dating and sexual violence, claims these mediation processes “pushed survivors to ‘work it out’ with their rapists, fostering a climate where students were afraid to come forward.”

The petition asks the University to respond to reports and conduct Title IX investigations through the COVID-19 pandemic, as the new Title IX rules specify that these processes can continue remotely. 

In an email to The Daily, Elizabeth Seney, the University’s Title IX coordinator and senior associate director of the Office of Institutional Equity, the office which oversees Title IX violations, said OIE remains open and is continuing its work through video conferencing and email. 

“We continue to take in new reports of concern, and are responding to these as well as continuing the work on matters that were reported previously,” Seney wrote. 

According to Seney, cross-examinations, mandated both by the new regulations and have been in place at the University since the 2018 Doe v. Baum lawsuit, are occurring through live video conferencing technology. Seney said remote operations should not have an impact on the timeliness and thoroughness of investigations.

“We are still committed to conducting a fair, thorough process and strive to do so as timely as possible,” Seney wrote. 

Lastly, the petition asks University policy to follow the rescinded 2016 guidelines protecting LGBTQ+ students from discrimination. 

In late March, 18 attorneys general, including Michigan Attorney General Dana Nessel, penned a letter to DeVos and her department asking her to hold off on releasing the new regulations in light of the COVID-19 pandemic. The letter claimed university administrations are already stretched thin as university resources are focused on adjusting to the pandemic.

Last week when the regulations were announced, Ted Mitchell, president of the American Council on Education, asked universities to make sense of “the most complex and challenging regulations the agency has ever issued” during the pandemic which “reflects appallingly poor judgment.” 

DeVos defended her department’s release of the regulations by noting universities were aware they were coming, stating that “civil rights really can’t wait.”

Sandberg said she thinks it is reasonable to demand the University respond to the petitioner's claims by June 1. She noted the newly released regulations are largely similar to DeVos’s initial proposals released November 2018.

“I can guarantee you that any person working in the Office of Institutional Equity, in (the Office of Student Conflict Resolution), General Counsel, they have spent months pouring over these regulations previously,” Sandberg said. “They were very aware what these changes were likely to be, and so they had adequate time to prepare.”

Thus, she said she is waiting to see if the University will respond. 

“We’re giving them until June 1 to give them honestly a generous amount of time to provide a response,” Sandberg said. “And it also gives us time, if they don’t provide a response, to take further action to ensure the new policy has these protections included.”

Daily News Editor Claire Hao can be reached at cmhao@umich.edu