Potential changes are coming to Title IX enforcement, from both the federal and state levels, including new federal guidelines from the Department of Education and state-mandated public reports on cases undertaken by a university’s Title IX office.
Title IX guidelines are traditionally set by the Department of Education in “Dear Colleague” letters, which are letters laying out new or modified guidelines. Previous guidelines in the 2011 and 2014 “Dear Colleague” letters were rescinded in the 2017 “Dear Colleague” letter, with differences including a choice between the “preponderance of evidence” standard and the “clear and convincing evidence” standard, as well as providing an informal voluntary mediation process. The preponderance of evidence standard means that whoever is judging must be reasonably sure there is a 50% likelihood in either side’s favor, while the clear and convincing standard is stricter, requiring that evidence be “highly more probable” and that the judge must have a firm conviction in it. There isn’t an exact definition for “highly more probable,” because it varies on a case-by-case basis.
At UTD, these changes were of little impact to the general running of the Title IX office, Title IX Coordinator Marco Mendoza said.
“We use the preponderance of evidence,” Mendoza said. “We do have the informal process, but we do not use that process when it comes to sexual assault or the more serious violations, that is not something that we even bring up because that’s just not good practice.”
Mendoza also brought up the upcoming changes to guidelines coming from the Department of Education, who Mendoza says is one of the two areas of oversight, the other being the Texas Higher Education Coordinating Board.
“The Department of Education is actually right now preparing to release new guidance that we’re suspecting will be released in January,” Mendoza said. “They did a long comment period, got a lot of feedback, so we’re not sure what the final version of the guidance is going to look like.”
Along with upcoming Department of Education guidelines, in the last legislative session, the Texas legislature passed SB 212 on June 14, 2019, which has two main provisions. First, it requires all employees at public or private institutions to report sexual harassment, assault and other violations to the Title IX coordinator if they witness or receive information of such an incident, however, there can be designated employees that can report such incidents confidentially.
“Right now, we have designated employees that are responsible employees,” Mendoza said. “The new law changes that slightly in making every employee that works for any institutions of higher, whether it’s public or private in the state of Texas, all those employees are now responsible employees.”
Responsible employees are required to report all sexual misconduct. The law also requires Title IX coordinators to report to the chief executive officer of a higher education institution with all of the reports of incidents once a semester, which afterwards is also distributed online. This requirement is currently undergoing a rules-making process by the Texas Higher Education Coordinating board.
“The rules are actually up for public opinion on the Texas Register,” Mendoza said. “I believe they’re going to be up there maybe for a couple more weeks. But once we have those rules finalized, I would be able to give a more definite date of business when we are mandated by the state to have these reports on the website.”
While these changes are currently ongoing, the guidance from the Department of Education is expected to be released in January of next year. The 2017 guidelines were sued over various provisions, however there were no recent relevant rulings applicable to UTD. Mendoza said to expect more potential lawsuits in regards to Title IX.
“I think you’ll continue to see a lot of that,” Mendoza said. “A lot of court battles over new guidance depending on what the Department of Education releases because a lot of the things that were in the preliminary guidance was very disturbing to a lot of individuals and especially the victims or the complainants.”
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