CAPPA Position statement on 2020 Title IX regulations
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May 28, 2020
The Campus Advocacy and Prevention Professionals Association (CAPPA) is a collective of campus-based professionals who work to educate their campuses and colleagues about interpersonal/gender-based violence in all its forms, and those who advocate for and support students who have been affected by dating and domestic violence, sexual assault and harassment, and stalking. Our organization envisions campuses free from all forms of interpersonal and gender-based violence; an interest we believe the Department of Education shares.
In 2020, the Department of Education released their new regulations on how federally funded educational institutions address Title IX, as it relates to sexual misconduct. While CAPPA will continue its priority of supporting student survivors, we believe the Department of Education’s decision to move forward with new regulations at this time creates an undue burden on educational institutions, and most importantly, survivors.
CAPPA reaffirms our policy recommendations made in 2017, which were grounded in our membership’s experience and expertise, as well as research-based practice and legal and legislative precedent. In the statement to follow, we reiterate the recommendations we stated in 2017 and address some of the final regulations released by the Department of Education.
Affirming preponderance of the evidence as the appropriate evidentiary standard in disciplinary proceedings
We can link the appropriate standard of evidence in Title IX cases to two concepts: severity of the penalty imposed (which, at schools, cannot exceed expulsion) and the standards employed in similar kinds of cases.
Title IX demands that both higher education and K-12 institutions receiving federal funding address sexual discrimination, behavior that overlaps the realms of student conduct, civil rights, and criminal law. Detractors of the 2011 Dear Colleague letter have made an effort to portray the preponderance of the evidence standard as new and lacking in precedent and merit.
However, the 2011 Dear Colleague letter is a further articulation of previous guidance from the Department of Education provided in 2001. In that guidance, the Department of Education reaffirms that the definition of actionable gender-based harassment derives from a Title VII-based definition of harassment. Given that preponderance is the standard in Title VII discrimination cases, it is only appropriate to use a consistent and established standard of evidence for both types of civil rights cases. To do otherwise demonstrates that children in K-12 schools and students in higher education are less deserving of civil rights protections than adults in the workplace.
The regulations currently allow schools to choose between using the clear and convincing standard or the preponderance of evidence standard. A noteworthy question is whether the push to abandon preponderance as the evidentiary standard is designed to limit the likelihood of any student being found responsible for sexual misconduct via campus disciplinary and Title IX processes. We are in agreement that the charge for schools is to safeguard the educational civil rights of students who have experienced gender-based violence and sex discrimination, and not to create a copy of the criminal-legal apparatus. Certainly, then, schools will never have at their disposal the power of subpoena, criminal discovery processes, or crime labs, nor should they. Schools are not finding students guilty or not guilty of violating criminal statutes. It is difficult to meet the clear and convincing standard with the above mentioned investigative tools and structures, rendering the policies, accountability, and remedies of a civil rights process functionally meaningless.
Trauma-informed processes are key to procedural equity
Title IX originally charged institutions with providing a prompt and equitable response to sexual harassment. The 2001 guidance from the Department of Education further obligated institutions to take “immediate effective action.” Equity neither requires nor implies identical treatment, and indeed the Department of Education has long required interim, non-punitive measures to remedy the effects of sexual harassment, of which interpersonal violence is an established component.
Disciplinary proceedings determine whether a respondent’s behavior is a violation of the institution’s code of conduct and Title IX policies. Reporting parties, responding parties, and institutions benefit from a full and fair investigation to make that decision, as well as a decision about the appropriate sanction when policies are violated.
Institutions and student affairs professionals can and should respond to the acute wellness and educational civil rights needs of survivors, needs which exist separately from and not mutually exclusive to the questions of accountability and procedural due process.
As professionals, we consistently see the stress of students involved as responding parties in conduct processes equated to and conflated with the trauma of students who have experienced interpersonal violence. Certainly, regardless of whether an individual student is found responsible for a conduct violation, it is appropriate to offer responding parties in interpersonal violence cases psychological counseling resources, and stress or crisis management tools via the institution’s existing structures or via referrals to off-campus resources. However, responding parties have not experienced a trauma (that is, exposure to actual or threatened death, serious injury, or sexual violence) in the context of the specific behavior at issue in the disciplinary case. Creating a false equivalency between these two experiences prevents us from providing appropriate services to both students.
The VAWA Amendments to the Clery Act--promulgated after an extensive negotiated rulemaking process--already require institutions to notify reporting parties and responding parties of their right to a support person of their choice in campus disciplinary processes for interpersonal violence. We support this regulation, whether that support person is an attorney or a trained campus or community-based individual. The new regulations, however, state that cross-examinations are to be conducted by an advisor. We do not recommend this advisor be a victim advocate.
Trauma-informed investigation protocols and adjudication processes best serve the goals of procedural equity and due process. A trauma-informed approach is considered best practice by victim advocates, education professionals, and law enforcement agencies. We have and will continue to advocate for trauma-informed systems and protocols as a mechanism for procedural equity, and creating safer campuses.
It is noteworthy that professional associations of attorneys and the faculty of law schools have been some of the most vocal proponents of processes which are not trauma-informed and mirror the criminal justice system’s use of attorneys as gatekeepers of student rights and options. Processes similar to the criminal justice system, such as cross-examination, would systematically disadvantage both reporting and responding students who can’t afford an attorney, and are structured primarily for the benefit of the legal profession, not the students trying to navigate these processes and the institutions tasked with implementing them. Additionally, placing the burden of cross-examination on unskilled and inadequately trained advisors disadvantages both reporting parties and responding parties.
Title IX ultimately compels us to preserve educational opportunity for those who have experienced gender-based violence and discrimination. And yet, the actual harm to educational opportunity and the academic and economic impact on survivors are always subordinated to the hypothetical future impact on responding parties.
Accountability is necessary for repair, and prevention is necessary for wellness
The new Title IX regulations have perpetuated many myths our society holds about sexual violence. One of the most disturbing myths reinforced is that responding parties in Title IX investigations are all either victims of false accusations by scorned former partners, hence, greater protections for the accused at the expense of supporting student survivors.
Every institution, regardless of the student population they serve, has individuals who have harmed others with their inappropriate and abusive sexual behaviors, or who are at risk of harming others. There are pressing and important questions at hand about how to ensure that our campus-based conduct processes do not replicate the racial and economic injustices so entrenched in the criminal justice system; how to apply sanctions and remedies to cases that advance students’ rights to live safely in the campus community--without fear of further harm and without harming anyone further; and how we expect our students to respect and care for others and give them the tools to successfully do so.
Prevention professionals have at their fingertips solid evidence-informed strategies for educating students in this realm. These are focused on what decades of scholarship tell us about the factors associated with harming others, especially in late adolescents and young adults, who comprise the majority of students. These include both individual-level risk factors like a preference for impersonal sex and hostile masculinity, as well as community-level risk factors like general tolerance and weak community sanctions for sexual violence. It is our responsibility as student affairs and allied professionals to address the full range of risk factors in order to enable students to live safely and thrive, not just on our campuses but in their family systems and post-education lives. The new regulations reify myths which directly counter these evidence-informed strategies, greatly impacting efficacy of future prevention work.
Finally, we are compelled to focus on prevention work not simply because of the Title IX charge to prevent recurrence of harassment which creates a hostile environment. We imagine a broader vision for students, from kindergarten through graduate and professional schools, to achieve academic success following experiences of harm, and ultimately preventing that harm from occurring in the first place.
Geographic limitations to processes
The new regulation of limiting investigations to reports from incidents occuring on campus is a fundamental departure from decades of established precedent regarding hostile environments and/or caused by sexual harassment in both employment and educational settings. It also highlights the Department’s fundamental misunderstanding of the interactions between students and their educational programs and activities. Many students do not live in housing controlled by the university. With so much of the student population living off campus where incidents of sexual harassment are likely to occur, what qualifies for an investigation is severely limited. The proliferation of both mobile technology and social media also prevents neither students nor employees to ever fully separate from the programs or activities of their educational environment or workplace.
The Department has further limited recipients’ ability to address discrimination by adding language that excludes conduct outside the United States. Many recipients maintain campuses and programs outside of the U.S. that are extensions of their U.S. campuses and enroll U.S. students from their own and other institutions. This is no different than if the student was on campus in the U.S. Beyond formal study-abroad programs, countless other students at the graduate and undergraduate level are engaged in research, fieldwork, and data collection off-campus and abroad. This behavior--sometimes perpetrated by other students, but also by faculty, graduate advisors, and other employees--has significant implications for the academic and career trajectories of students enrolled at and employed by higher education institutions. To that end, this exclusion does a grave disservice to students and employees of higher education institutions, resulting in decreased safety, institutional buy-in, professional growth, and the perceived and actual accessibility of support services.
Cost to individual institutions and students
The prospect of much higher costs incurred by both institutions and individual reporting parties and responding parties would be a result of the new regulations. Chief among these costs is hiring representatives to conduct cross-examination in a quasi-criminal model. For schools, everything ranging from video conference technology to massive overhauls of most institutions’ systems will be an additional cost. The Department of Education’s assertion that cost reductions will come from a decrease in investigations stems from the inaccurate premise that schools are adjudicating a lot of "minor" conduct (i.e. non-severe, non-pervasive). The Department of Education also assumed reduced costs resulting from investigating fewer incidents if schools are no longer required to investigate off-campus reports. However:
1) Some schools will need to continue to investigate off-campus reports to maintain consistency with student conduct processes that adjudicate off-campus behavior, such as alcohol violations and other violations of state and local law; and
2) Most schools don't pay per report, rather they maintain full or part time staff, and wouldn't necessarily be able to cut positions and contract out investigations, so the overall cost would remain the same.
Conclusion
It is our every intent to ensure that policies impacting survivors are created with a trauma-informed and equitable lens; encouraging evidence-based prevention efforts and practices that support survivors on college campuses. As outlined above, these new regulations create more barriers not only for survivors who have experienced harm, but also for institutions’ capacity to respond to that harm. These regulations will have a chilling effect on reporting rates, resulting in gender-based violence going unchecked and making students and employees less safe on their campuses. They will also send the message to survivors that protecting institutional liability is a greater priority than student safety. These regulations present great challenges of equity and access as well, which will disproportionately impact survivors with marginalized identities who are already at higher risk of experiencing gender-based violence. They do more to exclude survivors and those who have experienced harm than to provide support.
Despite these harmful regulations slated to go in effect on August 14, 2020, we plan to continue supporting student survivors in trauma-informed and evidence-based ways. Moving forward, CAPPA will continue to support our members by sharing information and providing spaces for professionals to feel grounded in this work.
This statement was written by the Campus Advocacy and Prevention Professionals Association Leadership Council.
ABOUT CAPPA
The Campus Advocacy and Prevention Professionals Association (CAPPA) is the professional association representing over 900 professionals in 48 states, the District of Columbia, and 3 countries working as campus-based advocates and prevention specialists. CAPPA envisions campuses free from all forms of interpersonal and gender-based violence, including dating and domestic violence, sexual assault and harassment, and stalking.
For more information visit: http://www.nationalcappa.org/