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Notre Dame makes changes to Title IX policy

| Monday, August 28, 2017

The University implemented a number of changes to its process of reporting and resolving cases of sexual assault, sexual misconduct, dating violence, domestic violence and stalking at the beginning of the academic year. The changes included the hiring of two additional deputy Title IX coordinators, an increase in the role of the deputy Title IX coordinator in the administrative resolution process — which can result in disciplinary consequences — and the new option of pursuing an “alternative resolution” in lieu of disciplinary action.

“We always get feedback about incidents that have occurred,” University vice president for student affairs Erin Hoffmann Harding said. “We’ve made a variety of changes trying to be responsive to what we’ve learned and how we can be more supportive of all students.”

These changes were rolled out in the midst of an unsettled lawsuit against Notre Dame filed in April by a former student — referred to as “John Doe” — alleging he was unjustly dismissed from the University less than a month before his graduation.

Doe was experiencing episodic depression and suicidal thoughts in the summer and fall of 2016, according to the original lawsuit, and sent related texts to his girlfriend — referred to as “Jane Roe” — over the course of months. Roe perceived the texts as sexual harassment and dating violence and reported the incidents to deputy Title IX coordinator Heather Ryan on Oct. 14, according to documents from a preliminary injunction hearing in the Northern District Court of Indiana. After an investigation and subsequent administrative hearing, the University found Doe in violation of its sexual harassment policy and expelled him, with an opportunity to re-enroll at a later date.

The lawsuit alleges Notre Dame mishandled the case and conducted an investigation full of “procedural flaws, lack of due process and inherent gender bias, designed to ensure that male students accused of any type of sexual misconduct or harassment — concepts that do not apply to John’s conduct — are found responsible.”

Judge Philip Simon ordered the University to permit Doe to take his final exams in May, stating in his order following an April 28 injunction hearing that “the University’s limits on hearing testimony — particularly the application of its narrow witness standard — might be found to be arbitrary or capricious in several respects.” Notre Dame was required to grade Doe’s work, the order said, but it could still withhold his degree and ban him from campus pending the result of the case.

An initial date for the trial has not been set.

Hoffmann Harding said she could not comment on an unresolved court case. Of the policy changes, however, she said similar revisions and improvements are made each summer.

“We try to learn from each and every situation where a student has been hurt or harmed and look at it every summer,” she said. “We’ve looked at it every summer since I’ve been in this role.”

For its most recent changes, she said Notre Dame looked to Baylor University’s newly-implemented model.

“Baylor’s system is one of the most recent that has had input … from the Office of Civil Rights, but also from outside folks with expertise in fairness and ensuring that we can be supportive of students involved in these situations,” Hoffmann Harding said.

Ryan said the University is in the process of hiring the two new deputy Title IX coordinators, who will collaborate with her to fill the position’s heightened responsibilities. Instead of contracting work with external investigators as Notre Dame has done in the past, deputy Title IX coordinators will now conduct investigations by talking to the complainant and respondent, interviewing witnesses and examining information provided.

This change was made in response to student feedback about conversations with external investigators and the timeliness of investigations, Hoffmann Harding said.

“In some cases, [students] felt a bit less comfortable sharing information with an external investigator, as excellent and well trained as they are,” she said.

In the past, once an investigation was complete, a Title IX case was referred to the Office of Community Standards for a hearing.  Now, a three-person panel — comprised of the deputy Title IX coordinator conducting the investigation, a member of the Office of Student Affairs and another individual from the Title IX office — will recommend a finding and outcome, Ryan said.

“Everything will happen much sooner than it’s happened in the past, in terms of timeline for a student who’s experiencing this,” she said.

In his injunction order, Simon pointed specifically to delays in the investigation and hearing processes as merits to why Doe’s case had some likelihood of success, part of the burden of proof required for the order allowing Doe to take his exam. Simon wrote that in its handbook, the University sets a goal of finishing each case within 60 days of the initial report; the decision in Doe’s case was made 111 days later.

Additionally, Doe filed complaints against Roe in February that “evidently remain pending,” Simon wrote, preventing Doe’s allegations from drawing Roe’s character and credibility into question.

Now, Ryan said, after a final report is released by the investigative panel — stating whether or not a respondent is found to have violated University policy and recommending disciplinary action, if necessary — both the complainant and respondent have the opportunity to accept the outcome. If either party contests the decision, the case moves to an administrative review proceeding to determine if there was a procedural flaw, substantive new information or insufficient evidence to support the recommended finding — reasons the University accepts as grounds for review.

“This scope allows us to have an administrative review board really look at a case in a way that is comprehensive and really responding to student concerns,” Ryan said. “They’d be able to still have an opportunity to speak in front of that panel and share information, ask questions.”

The administrative review board is now chosen from a pool of trained individuals from the University appointed by University president Fr. John Jenkins, she added.

In the past, a case review board consisted of three faculty and administrators, according to a transcript of the April injunction hearing. Simon discussed the review of Doe’s case in his order, referencing a “conclusory and dismissive denial by the Conduct Case Review Board” as another merit of the case to allow Doe to take his exams. Simon wrote that the board refused to consider Roe’s “cherry-picked” text messages and “evidence pertinent to Jane’s credibility and state of mind,” which could have qualified as reasons to remand the case to the Office of Community Standards before taking any disciplinary action.

Hoffmann Harding said in previous years, when a case came to the Title IX office, a complainant had two options: to pursue an administrative resolution, potentially dealing with disciplinary consequences, or — if the deputy Title IX coordinator found no threat to the general community — to close the case. Now, complainants have the additional option of an “alternative resolution,” she added.

“This has the objective of stopping a behavior, but not necessarily going to that next step, a disciplinary outcome,” Hoffmann Harding said. “So it involves sharing the feedback … and then basically agreeing that it ceases and desists, but not necessarily taking that next step.”

Ryan said participation in the alternative resolution process would be voluntary for both parties and entail non-disciplinary outcomes, such as mediation, support services or a non-contact order. The goal of it all, she added, is to make the process more “restorative.”

“It’s going to be very individual, depending on the needs of the complainant and the nature of the concern,” she said.

This option was not available in October, when Roe made her complaint against Doe. Ryan Willerton, Notre Dame’s vice president of career and professional development and former director of the Office of Community Standards, said the disciplinary outcomes were meant to be “educational,” while speaking about the old process at the injunction hearing in April. In his court order, Simon wrote that he did not find this testimony to be credible.

“Being thrown out of school, not being permitted to graduate and forfeiting a semester’s worth of tuition is ‘punishment’ in any reasonable sense of the term,” the judge wrote.

Hoffmann Harding said the University is always looking at ways to adapt policies and procedures to ensure it is “providing student care in the fairest and most compassionate way.” And despite the numerous changes made to the University’s process of dealing with Title IX cases internally, the process of reporting sexual harassment or misconduct remains the same, she added.

“I think it’s very important to realize that most things really haven’t changed in terms of getting support from confidential or non-confidential resources,” Hoffmann Harding  said.

The University introduced the changes in its summer training and Welcome Weekend programs and will continue to publicize them in other ways, such as the Moreau First Year of Studies courses. Ryan said she will be hosting a monthly “Lunch and Learn” series, where students are welcome to discuss and learn about the new policies. 

“We’re trying to make it accessible and transparent for all of you so that students have enough choices and agency and the support they need,” Hoffmann Harding said. “That’s truly at the underline of what’s driving all of this.”

Assistant Managing Editor Rachel O’Grady contributed to this report.

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About Katie Galioto

Katie, The Observer's former Managing Editor, is a senior majoring in political science, with minors in Business Economics and Journalism, Ethics and Democracy. She's an ex-Walsh Hall resident who now lives off campus and hails from Chanhassen, Minnesota. Follow her on Twitter @katiegalioto.

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