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UA to quietly reform Title IX procedures in face of new federal regulations

Amy Bailey

The University of Arizona has sent out several statements about COVID-19 and how the administration plans to prevent a widespread outbreak on campus.

The University of Arizona faces an August 14 deadline to draft and implement new Title IX policies and procedures on campus. Title IX of the Education Amendments Act of 1972 is a federal law that addresses gender discrimination and sexual assault on college campuses. 

UA’s reforms were sparked by the May release of new and much-anticipated Department of Education regulations for Title IX, spearheaded by U.S. Secretary of Education Betsy DeVos. 

While these new regulations have been hailed by due-process advocates, experts and members of the UA community worry the greater flexibility offered to university administrators, along with new procedural requirements seen as hostile to victims, will result in more unreported and unpunished sexual assaults within the UA community. 

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These reforms come during a time of transition for Title IX leadership at UA. This February, UA’s inaugural director of the Department of Title IX, Equity and Inclusion, Ron Wilson, announced his departure from UA along with much of the department’s staff. 

Experts agree that UA’s new Title IX policies will significantly impact students on campus, leading to calls from student leaders for UA’s administration to include student voices in its Title IX reform process. Unlike other Arizona universities, UA has not yet established a public and official avenue for students to participate in its reform. 

UA’s Current Title IX Policies Maintain Obama-era Reforms 

“One in four women will experience an attempted or completed rape while they are in college,” said Elise Lopez, director of UA’s Consortium on Gender-Based Violence. “Despite millions of dollars worth of prevention programming this [national] rate has not changed in the last forty years.” 

UA is not an outlier. In a campus climate survey conducted by UA’s Dean of Students Office in 2019, over 35% of female undergraduate students believed that it was very or extremely likely they would experience sexual assault or misconduct during their time at UA. 

In 2015, the Arizona Board of Regents, which governs Arizona’s three public universities, repealed its policies outlining disciplinary procedures for cases of sexual misconduct on campus (ABOR Policy 5-403) citing the fast-changing regulatory environment. As part of the repeal, the regents directed the UA to draft and implement its own stand-alone policies to address sexual assault on campus. 

Following Secretary DeVos’ repeal of Obama-era Title IX guidance in 2017, the UA released an interim Title IX policy outlining the procedures it would use to investigate reports of sexual misconduct. The release of the policy was not dated. 

UA’s interim policies presevered many of the Obama-era reforms to Title IX investigations meant to bolster reporting and disciplinary action: UA’s policy continued to prevent informal mediation of sexual assault reports and direct cross-examination between the accused and victim. 

Yet, the UA’s policy did not outline what standard of evidence University Hearing Boards should use when evaluating reports of sexual misconduct. 

“[UA’s current] Title IX process can be really tiring for survivors,” said Joann Kohng, a recent UA film and television and communication graduate who produced a documentary about Title IX on campus. “There is this whole system, which takes so long to go through, that is designed like a court system with its own jargon and rules.”

As the fall semester approaches, UA faces a deadline to release a new policy to bring the campus into compliance with federal regulations which include new requirements, but also new flexibility, for university administrators. 

DeVos Requirements Seen as Hostile to Victims 

“Justice was limited for victims of sexual assault [under Obama-era policies], there were hundreds of complaints against universities for failing to investigate sexual assault and there was not much guidance as to what universities were required to do,” said Shannon Harper, an assistant professor of criminal justice at Iowa State University and Title IX researcher. 

According to Harper, the new DeVos regulations were sparked by a desire to codify and clarify Title IX obligations for universities but also to address what some saw as due-process violations or unfair treatment of those accused of sexual assault during investigations.

The new DeVos policies require that those accused of sexual assault under Title IX be able to cross-examine their victims during investigations through an advisor and permit universities to raise the standard of evidence for disciplinary action (such as suspension) from a preponderance of evidence to the more stringent clear and convincing standard used in criminal court cases where there is potential for jail time.  

“It is good that the government is thinking about due-process rights, but you cannot implement more fair procedures for those accused of sexual violence while at the same time subtracting protections from those the policy is intended to protect,” Harper said. 

For example, after the University of Michigan began allowing cross-examination in Title IX investigations in response to a lawsuit, reports of sexual assault decreased by 15 percent and the number of students who choose to pursue a Title IX investigation also significantly decreased according to an internal report. 

In addition to these changes, the DeVos regulations narrow the definition of sexual assault under Title IX to exclude off-campus sexual assaults, allow universities to reduce the number of individuals required to report Title IX violations and bring back informal mediation of sexual assault reports.

According to Harper, the DeVos regulations do open the door to new restorative justice approaches to combating sexual assault on college campuses. Restorative justice is a less adversarial approach focused on holding the offender responsible for acknowledging and repairing the harm they caused, Harper said. 

According to Lopez, the focus of restorative justice is also to change the future behavior of the offender. 

“Undergraduates are still in a place where risk-taking behavior is normal and they are also still developing social skills, such as communication and conflict resolution and intimacy,” Lopez said. “That is absolutely not an excuse for sexual assault, but what it does mean is that many of these young people are malleable their behavior is changeable.” 

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While Lopez believes this new restorative justice approach could succeed in UA’s Title IX office, it would require sustained funding and commitment. 

For Brian Pappas, a current administrator at Eastern Michigan University and former Title IX coordinator and researcher, the eventual impact of these new federal regulations will vary greatly by institution. 

“Universities could conceivably pull way back on their Title IX progress,” Pappas said. “They could make Title IX investigations use the clear and convincing evidentiary standard. They could create very formal hearing-like processes. They could make very few people mandatory reporters. That would all be a deterrent to students reporting sexual assaults.”

Potential for More Unreported Sexual Assaults on Campus 

While UA does not publicly release the number of Title IX reports, investigations or disciplinary actions it processes every year like the University of Michigan, the  UA’s Survivor Advocacy Program, which was created in 2018 to provide confidential resources to survivors of sexual violence, does track the number of students accessing its support.  

“During the [program’s] first year, we provided resources to 300 students and saw nine students go through a Title IX investigation,” said Karyn Roberts, an advocate for the Survivor Advocacy Program.

While not every one of those 300 students was eligible for a Title IX investigation, around half of students helped by the program had been assaulted by another student at UA, according to Roberts. The complexity and formality of Title IX investigations can be overwhelming for students Roberts said.  

“Some of the new Title IX regulations are firm requirements, but others fall in this gray area and so I think a lot of the impact of these new policies is going to come down to how our school interprets some of these gray areas,” Roberts said.

As UA reforms its Title IX policies, it will have to identify who will be a mandatory reporter, what standard of evidence it will use when investigating claims of sexual assault and how it will handle reports of sexual assaults off-campus.

These procedural rules are not trivial, and they will dramatically impact the number of students reporting their sexual assault at the UA, according to Pappas. 

For Lopez, one of the biggest potential pitfalls of the UA’s new Title IX policies could be how it chooses to utilize DeVos’ narrowed definition of sexual assault covered under Title IX. 

“If most sexual assaults are happening off-campus, but still affect students on campus, then we need a process that will help those students, otherwise we are going to be missing this huge swath of people who need assistance and who frankly are not going to go to the police,” Lopez said.

While the number of false reports of sexual assaults are extremely low, universities could adopt a higher standard of evidence reminiscent of a criminal trial and not an administrative or civil procedure as Title IX has historically been seen as according to Pappas. 

“If [the UA] goes to a clear and convincing standard of evidence, that is a much higher standard to reach, and that is going to fundamentally decrease the numbers of complaints that are coming forward,” Pappas said. 

Such a standard means a longer investigation and more pressure on victims to gather and present evidence of their sexual assaults, forcing them to relive over and over a traumatizing experience. 

While Harper is optimistic universities will place students’ right to safely access an education before other concerns, Pappas concedes DeVos’ new regulations and reduction in federal oversight provide universities counterproductive incentives. 

According to Pappas, UA will face the incentive to resolve Title IX complaints at the lowest possible level, in mediation, a process that can cause additional trauma for survivors. 

“On some level, universities want to avoid the liability and avoid negative attention Title IX investigations bring,” Pappas said. 

Pappas hopes that universities will find a way to comply with the law while not discouraging people from reporting sexual assaults. Oftentimes, Pappas said, it is not short-lived Title IX coordinators or student advocates crafting campus policies. 

“It is not university Title IX coordinators that control or shape campus Title IX policies; university general counsel’s offices or consulting firms have a much bigger role,” Pappas said. 

Student Voices Absent from UA Title IX Reform 

“Students should absolutely have a voice in Title IX reforms,” Harper said. “Most students have had classes with victims of sexual violence and these reforms have implications for students’ ability to enjoy access to an education.” 

Administrators at Northern Arizona University agree with Harper’s sentiment and have provided students with an official feedback form to make recommendations for NAU’s new Title IX policy.

“As part of [our Title IX reform], NAU will engage and seek input from the university community,” NAU’s Title IX website reads. “When they become available, working drafts of NAU’s revised student-focused sexual misconduct policy and procedure documents will be posted [publicly].”

Contrasting NAU, UA has not taken any public steps to seek community input as it reforms its Title IX policy.

Mary Beth Tucker, UA’s interim director of the Department of Title IX, Equity and Inclusion and Title IX coordinator, declined to be interviewed for this article citing her interim role. 

In a brief statement, Tucker did state UA’s commitment to supporting students who have experienced sexual violence or misconduct on campus. 

“I will be conferring with others to analyze and absorb the changes so that we can formulate a response and announce plans in the near future,” Tucker said. “We are committed to minimizing barriers to reporting and obtaining support, and we will continue to take all reports seriously and respond swiftly.” 

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In response to the new federal Title IX regulations, Tara Singleton, UA’s incoming student body president, expressed concern that off-campus instances of sexual assault may not be investigated by the UA in the future.  

Singleton emphasized her hope that UA will include student voices in its reform process. 

“If we as a university do not react the right way, these new regulations could be extremely harmful for a lot of students and their experiences on campus,” Singleton said. “I hope that ASUA [UA’s student government] can have a role in these discussions because students should be at the forefront of this conversation.” 

Singleton’s concerns were also reflected by Lauren L’Ecuyer, the outgoing student representative on the Arizona Board of Regents and a law student at UA. 

“At the end of the day, students are the people we as the university need to be protecting and guiding,” L’Ecuyer said. “I think students know what students need, their voices should play the largest possible role [in UA’s Title IX reform].”

While there is consensus among student leaders that student voices should play a role in developing UA’s new Title IX policies to be released this August, not everyone is optimistic such an opportunity will be provided. 

“In an ideal world, we would have a really diverse collaboration between students who feel strongly about this topic and administrators to figure out what is feasible,” Roberts said. “I think such a process requires a lot of intentionality and I do not know if UA has the sufficient time or resources to be able to implement such a strategy.”

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