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 Wednesday afternoon, 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 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. Currently, investigators collect information through written questions and answers, as the Obama administration had discouraged live cross-examination to avoid additional trauma, O'Rourke said.
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.
Mary Friedrichs was among the thousands of individuals who also commented on the proposed changes. She retired in 2012 from her position as the director of CU Boulder's Office of Victim Assistance, and she was motivated to comment because she felt the proposed changes would erase much of the progress she saw under the Obama administration, as well as progress she saw made since she began working to combat violence against women in the early 1970s.
"Betsy DeVos has proposed changes to the rules for how to enforce — or not enforce, in this case — Title IX," she said in an interview. "I felt like it was extremely detrimental to the progress that we've made in the last couple of decades on this issue."
She wasn't surprised by the flood of comments, she said, because the majority of the people she knows who work in the field were upset by the proposed changes.
She objected to many of the proposed changes, including the ones that would institute a new standard of evidence and live hearings.
Highly trained investigators currently handle such investigations, she said. They conduct thorough interviews and evidence collection, and their findings are legitimate and validated. Increasing the standard of evidence, to require more eyewitnesses and evidence, would make it harder to make a finding of responsibility, she said.
"Betsy DeVos would have us think that many of the respondents are completely innocent and are getting framed and railroaded," Friedrichs said. "... It's in the rarest of circumstances."
The live hearings would have a higher likelihood to re-traumatize complainants, as they sit in the same room as the respondents and have their stories questioned by attorneys or others who are trying to trip them up and impugn their motives, she said. She likened it to a kangaroo court.
These cases are not in the criminal justice system, she said. They are administrative in nature, and the consequences are not nearly as severe as those for someone convicted in court, such as prison time. Such a process would discourage victims to come forward, she said.
"Why would anyone bring a report under these circumstances?"
Cassa Niedringhaus: 303-473-1106, email@example.com