BY SARANNA THORNTON

On September 7, 2017 Secretary of Education, Betsy DeVos, harshly criticized the “failed system” of policies promulgated in Dear Colleague Letters issued in 2011 and 2014.

DeVos rightly noted that some colleges and universities have indelibly harmed survivors when their reports of sexual assault were “swept under the rug”. The Secretary rightly noted that some colleges and universities have indelibly harmed students accused of sexual misconduct by denying them the protections of due process before imposing sanctions.

A year ago, in a special report, The History, Uses, and Abuses of Title IX, the AAUP also called attention to problems with Title IX interpretation, implementation, and enforcement on campuses across the country—problems that threaten academic freedom and shared governance. The report documented instances where overly broad and subjective definitions of a “hostile environment” based on sex confounded faculty in the performance of their jobs as teachers and scholars, and subjected them to sanctions for protected extramural speech. The AAUP report also decried instances where respondents in sexual misconduct cases were not provided adequate notice of the charges against them, and were not given opportunities to provide a full array of evidence in their defense.

As noted by the AAUP, Secretary DeVos, the National Association of College and University Attorneys (NACUA), the Foundation for Individual Rights in Education (FIRE), and many others, colleges and universities seeking to rapidly comply with sometimes confusing OCR mandates have frequently adopted overly broad interpretations of what types of verbal, non-verbal, and physical conduct creates an impermissible hostile environment based on sex.

On September 23, 2017 in an attempt to improve the current system for responding to complaints of sexual misconduct (including sexual assault) the Department of Education announced  it had withdrawn instructions it provided in the 2011 Dear Colleague Letter   and in the 2014 Questions and Answers on Title IX Sexual Violence.

During the next several months the Department of Education will solicit comments from the public as part of a formal rule making process for addressing sexual misconduct in education. In the interim the Department has issued guidelines through a new document, Questions and Answers on Sexual Misconduct.

The interim guidance contains approximately 50 distinct instructions—some of which are not new (e.g., designate at least one employee to act as a Title IX Coordinator). While in other areas the Department of Education provides more detail than previously issued official Title IX guidance, such as how to conduct a thorough and equitable investigation of a sexual misconduct complaint. Mandatory due process protections are explicitly stated, including; offers of interim measures to both the accuser and the accused; sufficient advance notice of interviews to each party so they can adequately prepare; the right of both parties to an advisor of their choice at all meetings that are part of the complaint resolution process; as well as the right to cross examine parties and witnesses, or to submit questions to be asked of parties and witnesses.

And schools subject to Title IX are required to interpret and apply their sexual misconduct policies in a manner that respects federal court precedents that guarantee free speech rights of students and faculty.

In 2015, utilizing the principles of shared governance, the faculty and administration of Hampden-Sydney College wrote a sexual misconduct policy that complied with Title IX mandates to prohibit sex discrimination, provided extensive due-process protections, and guaranteed academic freedom in teaching, scholarship, and extramural speech. Both the procedure utilized to craft the policy and the critical elements of the policy are explained in my Journal of Academic Freedom article, “Complying with Title IX while Protecting Shared Governance, Academic Freedom, and Due Process: A Model Sexual Misconduct Policy”.  On September 22, 2017,  when the Department of Education issued its interim guidelines we were not surprised to learn that the policy we adopted two years ago was already in compliance.

Guest blogger Saranna Thornton is a professor of economics and business at Hampden-Sydney College. She is a member of the Executive Board of the Virginia Conference of the AAUP, and co-author of AAUP guidebooks on the topics of the Family and Medical Leave Act and pregnancy in the academy.