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Observer Editorial: ND & Title IX — where do we go from here?

| Friday, October 11, 2019

When U.S. Secretary of Education Betsy DeVos repealed Obama-era Title IX policies in 2017, advocates across the country — including at Notre Dame — expressed concern over how the changes could negatively impact sexual misconduct investigations at universities.

DeVos’ proposed replacement rules, announced in 2018, sparked additional concerns. The new regulations would only require schools to investigate sexual misconduct that occurred on campus or was part of a campus program, potentially allowing schools to opt out of investigating off-campus incidents. Additionally, these regulations allow for cross-examination of accusers by a defending party’s lawyers in college Title IX investigations.

In light of the potential negative impacts of these changes, it was encouraging to see Notre Dame address the proposed rules after the public was invited to submit comments. The University’s extensive response should serve as an example for Saint Mary’s, which said it will wait until the more than 100,000 comments submitted to DeVos are reviewed and the new rules are enacted before deciding how to proceed. In the meantime, Title IX will exist as is at the College. It is unclear how Holy Cross plans to respond to the changes — Holy Cross administrators could not be reached for comment in time for publication.

In its public comment, the University expressed concern that allowing cross-examination could discourage students from reporting, create a hostile environment for those who come forward and increase disparities between students who are able to afford higher-end attorneys and those who are not.

Kerry Schneeman | The Observer

In an interview with The Observer published Oct. 4, the University also pledged to continue to investigate off-campus incidents, even if granted more flexibility under the new rules. It also plans to stick to the 60-day timeline for sexual misconduct investigations and use the “preponderance of the evidence” standard — the lowest standard of evidence — to determine whether reported incidents merit disciplinary action.

These commitments, along with the time and care Notre Dame took in submitting a comment, are reassuring, and we commend the University for its response to the new rules.

However, Notre Dame still has work to do. While the reports to Title IX Student Services stayed consistent between 2016 and 2018, the University’s most recent campus climate survey also indicated most barriers to reporting had increased since 2016.

Of the students who responded to the 2018 campus climate survey, 42% of those who experienced non-consensual sexual intercourse and did not report it said they “[d]id not trust the University’s process.” This number was at 30% in 2016. In 2018, 60% of these students said they did not think reporting would solve anything.

The last time The Observer’s Editorial Board wrote on this issue, Notre Dame had two pending Office for Civil Rights investigations for possible Title IX violations regarding sexual violence. Those cases are still pending. Since that time, the Office for Civil Rights has opened two more investigations into Notre Dame for potential Title IX violations regarding sexual violence. All four investigations are ongoing, and whether Notre Dame mishandled the cases is still unknown. But the fact that there are four open investigations at all — including two new ones — gives us pause.

By submitting a public comment, Notre Dame has clearly demonstrated a willingness to assess what is working within its Title IX process and a commitment to maintaining those higher standards, even if federal policies no longer compels the school to do so. The University said it plans to keep the parts of the process it has decided serve the community well.

But now, we hope it will also consider what is not working, and what can be changed to create a system that will foster greater trust with the student body.


Have you been through the Title IX process at Notre Dame, Saint Mary’s or Holy Cross? The Observer wants to hear from you. Fill out our form here to get in touch.

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