The University moved its Title IX office to the Office of Institutional Equity this summer and has been preparing for national changes to Title IX rules by submitting a public comment on new proposed regulations.
University administrators said the Student Title IX Service’s move will have little impact on how Notre Dame handles cases of sexual misconduct. Notre Dame also does not anticipate major changes to its process in areas where universities may be granted more flexibility under the new regulations.
Why the office was moved
Student Title IX Services, which formerly operated “as a support service within the Division of Student Affairs,” moved to the Office of Institutional Equity due to the departure of Bill Stackman, former associate vice president for student services.
Vice president for student affairs Erin Hoffmann Harding said when looking for someone to take on Stackman’s Title IX responsibilities, she turned to Erin Oliver, an assistant vice president who oversees the Office of Institutional Equity.
“She brings to Notre Dame, through her leadership here, deep experience from her past institutions with student Title IX services,” Hoffmann Harding said. “So truly, it was just a happy marrying of hiring the right leader for institutional equity, knowing … that [it] had become a more common practice nationally to have faculty, staff and students’ cases handled in one place.”
While reports of faculty, staff and student misconduct will now be handled through one office, the Title IX process at Notre Dame has remained nearly unchanged, Oliver said.
“As far as the life of a complaint or report that comes into our office, through resolution, it’s primarily the same team doing the same good work,” she said.
Students who report sexual misconduct can choose to pursue an administrative resolution — which can result in a disciplinary outcome — or in some cases, an alternative resolution, which consists of mediation.
University concerns about proposed Title IX rules
According to the New York Times, U.S. Education Secretary Betsy DeVos rescinded Obama-era guidelines for Title IX cases in 2017, most notably reversing the policy that required colleges to use “preponderance of the evidence” — the lowest standard of evidence — in determining whether to discipline students for alleged sexual misconduct.
Last November, DeVos proposed new rules to replace the former guidelines, and members of the public were welcomed to submit comments on the regulations over a period spanning about two months. Following a review of these comments, the new rules will be announced.
In its public comment, the University praised the new rules’ support for alternative resolution and the flexibility it grants in investigating off-campus misconduct, as universities would only have to investigate incidents within campus-sanctioned programming under the proposed policies. Notre Dame also approved of the requirements to provide both parties involved in the investigation with “detailed written notices of investigation,” the right to review evidence and an appeals process should one exist at the school.
However, the University also expressed concerns about how outside parties would be involved in the process under the new regulations. The proposed rules would allow students on either side of the case to bring in an advisor or attorney to cross-examine the other party, a practice the University said could discourage students from reporting.
“We were concerned both about the environment — that it would not necessarily encourage students to come forward in all cases — but we were also really concerned about inequitable resources that might be available to students there,” Hoffmann Harding said. “So we’ll see what comes out in the final rules.”
Hoffmann Harding said the University currently allows students to have advisors during the Title IX process, but they serve in “non-speaking roles.”
“Students can have advisors available, but those are non-speaking roles so it doesn’t turn into the equivalent of sort of a litigation process,” she said. “But it does allow us to gather information, I think, quite fairly and ask questions of both parties that again, try to serve students well and the community.”
B. Ever Hanna, policy director for advocacy group End Rape on Campus, appreciated that Notre Dame took the time to submit a comment. Hanna echoed the University’s concerns about cross-examination, saying the practice could be traumatic for students and promote inequality for those with fewer financial resources.
“In general, there’s a lot of great language [in the comment] about what fairness actually is,” Hanna said. “Does fairness require due process protections like direct cross-examination, or can fairness look like something else? So the fact that the comment links fairness and not having cross-examination is really great.”
Assessing other potential changes
The proposed changes loosen a few requirements for how schools investigate sexual misconduct including: allowing colleges to determine what standard of evidence they will use; greater flexibility in deciding what off-campus conduct they will address; and getting rid of the requirement that cases be resolved within 60 days.
Though the University appreciates the “latitude” granted to colleges in addressing off-campus conduct, Notre Dame does not plan to change its practices in these areas or its other policies, administrators said.
“The University has long included the flexibility for us to take off-campus incidents into account,” Hoffmann Harding said. “We don’t anticipate changing that, even if the federal rules provide more flexibility.”
Hanna said while they might disagree with the proposed rules’ stance on off-campus misconduct, they understand why universities could support this change.
“I definitely think that from our perspective, being able to investigate, or at least look into more conduct than less is helpful, and I know that that’s not always the perspective of universities because it’s really time-consuming and costly,” Hanna said.
Hanna added it was “heartening nonetheless” that Notre Dame plans to continue to investigate off-campus incidents.
The new rules would also allow universities to choose whether they use “preponderance of the evidence” standard or “clear and convincing standard” in evaluating alleged misconduct. Under the Obama administration, schools were required to use the former standard, which means the misconduct occurred “more likely than not,” according to the New York Times. The “clear and convincing standard” means the alleged misconduct was “highly probable” and requires a higher standard of evidence.
Hoffmann Harding said the University plans to continue to use the “preponderance of the evidence” standard.
“I think the new proposed rules would perhaps allow for more flexibility, but you need to be consistent across all of your cases,” she said. “And for all of the cases at the University, right now, we do use that preponderance of the evidence standard.”
Additionally, Notre Dame currently plans to stick to its 60-day timeline for investigating cases, Oliver said.
“It’s still our goal,” she said. “ … We have University holidays and breaks and there’s a lot of reasons why that can be impacted, but in du Lac, you’ll read it’s still a 60-day expectation that we place on ourselves.”
Once the new rules are announced, Hoffmann Harding said she would likely approach the Committee on Sexual Assault Prevention (CSAP) for student feedback if the University was considering changing its policies.
Notre Dame may also be open to collecting broader student feedback depending on the rules, she said.
“I think we’ll have to respond and see what the content of the changes are — should we have more intentional student conversations with a broader set of groups beyond CSAP?” Hoffmann Harding said. “We’re really open to that.”
Editor’s Note: A previous version of this story incorrectly stated Hanna’s title. Hanna is the policy director for End Rape on Campus. The Observer regrets this error.
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