University of Colorado Weighs in on Proposed Title IX Changes

January 30, 2019

University of Colorado officials weighed in Wednesday on the federal government’s proposed changes to how campuses respond to sexual harassment and assault allegations under Title IX, the federal gender equity law.

Wednesday was the last day of a two-month public comment period on the proposed changes. By midday, the total number of comments submitted had topped 96,000.

The rules, proposed by Education Secretary Betsy DeVos, would narrow the types of cases schools are required to investigate. DeVos also contends the rules would afford more due process to people accused of sexual assault or other forms of sexual misconduct. Critics counter that the proposed changes would put up more barriers for victims of sexual assault seeking justice.

The university’s comment, drafted by university counsel Patrick O’Rourke, noted that the proposed changes would force the university to review and potentially revise its current policies and procedures.

CU provided several examples of how the changes, as drafted, would affect current procedures. The changes would narrow the definition of sexual harassment and do not address other types of misconduct as currently covered in CU’s sexual misconduct, intimate partner abuse and stalking policy. They would also require live cross-examination, rather than facilitated cross-examination as currently provided through CU staff — under the proposed rules, accused students could hire experienced criminal defense attorneys to cross-examine the victim in person, with no judge or prosecutor overseeing the process, Boulder attorney John Clune previously told the Daily Camera . The changes also would require decision-makers to make factual findings and determine sanctions, rather than CU’s current procedure of using multiple, separate levels of review boards.

Separately, CU officials on Wednesday submitted seven lengthy questions for clarification about how they should interpret and implement the proposed changes, should they take effect.

CU has continually evaluated and improved its policies, even within an evolving legal framework, CU spokesman Ken McConnellogue said in a written statement provided to the Daily Camera.

“CU is committed to creating campus communities where students, faculty and staff can study, live, learn and work without discrimination, including sexual and gender-based harassment and assault,” McConnellogue said. “We are committed to preventing sexual harassment and assault, providing fair and effective processes for addressing misconduct when it occurs, and promoting a culture of respect and inclusion where all members of the university community can reach their highest potential.”

Colorado Attorney General Phil Weiser took a sharper tone in a letter sent to DeVos on Monday. He condemned the proposed changes and said they not only would be insufficient in protecting survivors of campus sexual assault and harassment but also would be insufficient in preventing and deterring such actions in the first place.

“In its current form, the procedures required by the Proposed Rule deny survivors the dignity, equality, and equal rights to education that Title IX aims to protect,” he wrote.

He added that the proposed changes would require Colorado’s institutions of higher education “to undergo costly and administratively difficult changes to these well-established systems.”

“Such disruptive changes would impose substantial burdens on Colorado (institutions of higher education), requiring the abandonment of approaches that work well — all in favor of an untested approach dictated by the federal government,” he wrote.

In September 2017, DeVos scrapped a set of Obama-era rules and issued a set of interim guidelines that allowed colleges to choose between the previous standard of evidence, called “a preponderance of evidence,” and the new standard of evidence, called “clear and convincing evidence,” which is stricter and harder to meet. Clune previously described a preponderance of evidence as posing the question : “Which is more likely — they did it, or they didn’t do it?”

At the time, CU officials had said they would not make any immediate changes to their policies because they were already fair and compliant with the guidance.

In the Wednesday comment, CU officials stated they would comply with legal obligations, while also acting in accordance with university values.

The federal government has not set a date the proposed changes would take effect.

Cassa Niedringhaus: 303-473-1106, cniedringhaus@dailycamera.com