MIT, other universities raise concerns over proposed Title IX regulations

Regulations would require ‘courtroom-like procedures,’ Barnhart says

MIT has joined with other educational institutions to raise concerns over the proposed Title IX regulations that the Department of Education released for public comment last November.

The Association of Independent Colleges and Universities in Massachusetts (AICUM), American Council on Education (ACE), and Association of American Universities (AAU) all published statements this week. MIT is a member of these associations and helped shape their comments, according to Chancellor Cynthia Barnhart PhD ’88 in an email to the MIT community Wednesday.

“[W]e are convinced that if the proposed regulations become final as currently written, it will become more difficult for colleges and universities to effectively address sexual harassment and discrimination and to ensure a safe campus environment,” Barnhart wrote.

The proposed regulations would require universities to implement “quasi-judicial” proceedings, in particular through cross-examination during live hearings.

“The draft rules impose onerous courtroom-like procedures that will likely involve outside lawyers and perhaps retired judges — changes that could have a chilling effect on reporting, could lead to delays in case resolution, and could erode the role faculty and staff play in upholding institutional values,” Barnhart wrote.

The statements by the associations argued that there are alternative, less adversarial means of ensuring credibility, such as allowing written questions and interviews by neutral investigators.

The statements also claimed that the proposed regulations subject universities to “an unprecedented amount of federal control when it comes to how to investigate and adjudicate allegations of sexual harassment,” as the AAU statement put it.

This has resulted in a set of highly prescriptive, “one size fits all” rules that fail to take into consideration the varying needs of different institutions, all three statements said, and the federal government should instead allow universities to develop policies that are best suited for their communities.

Several other aspects of the proposed regulations were discussed in the statements as well.

The AAU statement argued that the proposal’s stipulation that universities require the same standard of evidence in sexual misconduct hearings as in hearings for other violations, like plagiarism, is misguided. The statement claimed that in sexual harassment cases, “fact-finding is more nuanced, complicated, and most often dependent on witness testimony,” and therefore should not be lumped with all other violations in determining how evidence is considered.

The AICUM similarly contrasted sexual misconduct proceedings with faculty revocation procedures, which are governed by state and federal laws that are out of the control of universities.

In cases of sexual misconduct, MIT currently uses a “preponderance of evidence” standard, which means “more likely than not,” rather than the higher “clear and convincing evidence” standard, Sarah Rankin, MIT’s Title IX coordinator, said in an interview with The Tech last May.

Another one of the regulations appears to require institutions to dismiss complaints that do not meet the Department’s definition of sexual harassment or that occurred outside the institution’s “program or activity.”

“This language implies that an institution is prohibited from moving forward under its own campus disciplinary procedures to address a violation of its own code of conduct for sexual misconduct if that conduct falls outside the boundaries of the proposed rule’s definition,” the ACE wrote. “We believe this is a serious mistake.”

Different sections of the proposal also provide somewhat contradictory views on the issue, the statements noted, causing uncertainty as to whether universities would continue to be free to pursue complaints beyond the scope of the Title IX guidelines. It is unclear, for example, whether incidents that occur during school-sponsored study abroad programs qualify.

AICUM also took issue with the requirement that all evidence be shared with both parties for inspection. It wrote that the policy “could require institutions to share highly confidential information about a complainant, respondent, witness, or other third-party,” which could “raise significant reputational and other concerns for the individuals involved.”

The ACE additionally outlined a number of ways in which the proposed regulations could positively affect institutions’ abilities to address sexual harassment, such as clarifying that an institution may immediately remove a respondent from campus if they pose a serious risk to others, and providing more flexibility in how long the grievance process may take.

“We do not yet know how [the Department of Education] will respond to our feedback or when to expect final regulations,” Barnhart wrote. “In summary, we do not believe that the proposal will achieve the Department’s objective of promoting a fair process for all parties nor will it promote learning environments that are safe and free from sexual harassment and discrimination.”