[Wsssc] {Disarmed} Re: NYTimes: Betsy DeVos Reverses Obama-era Policy on Campus Sexual Assault Investigations

Christina Castorena christina.castorena at email.edcc.edu
Fri Sep 22 14:44:51 PDT 2017


In case you have not seen this, I'm sharing this announcement from ASCA
that provides a great summary of the new guidance and what's changed from
the previous guidance.

Also, there is a link to register for a free webinar co-sponsored by ASCA
and NASPA.


---------- Forwarded message ----------
From: ASCA <asca at tamu.edu>
Date: Fri, Sep 22, 2017 at 1:18 PM
Subject: ASCA News Blast - Statement on DoED Guidance
To: ross.villegas at email.edcc.edu

*ASCA News Blast *
*Statement on new DoED Guidance*
Dear Ross,

Today, and as expected, the U.S. Department of Education released new,
*interim* guidance on Title IX in higher education.  We encourage you to
read through the Announcement Letter
and the Q&A on Campus Sexual Misconduct
The question and answers issued today merely provide information about how
OCR will assess an institution's compliance in the *interim*. We cannot and
should not assume this information shall serve as long-term, permanent

This new letter by no means indicates that what institutions have been
doing is wrong. It merely rescinds the "requirement" to do certain things.
It does not condemn what institutions are doing. It simply indicates that
the current administration does not believe the 2011 letter was done in
accordance with regulations and they now intend to do so. The letter today
refers to the 2001 guidance for which most of us used well before the 2011

We continue to encourage our members to engage in the comment period once
that begins as that is the most appropriate venue to express our thoughts,
expertise, and experience.  As stated in a previous letter to you, I will
be testifying at the U.S. Department of Education's Public Hearing on October
4, 2017 on behalf of ASCA.

We encourage everyone to read the question and answers for yourself. As you
will see, much of the Q & A provides general guidance as to an
institution's responsibility vs. tasks. Question #8 is the most specific
and possibly policy changing given the information OCR expects an
institution to provide at the onset when some of that information is not
available. Given that there are not new regulations and there are
regulations connected to VAWA and Clery as well as Title IX case law,
institutions should continue to provide student-centered processes that
address issues around potential violation of institutional policy.

In our best effort to respond in a timely manner to today's U.S. Department
of Education's rescinding of the 2011 and 2014 guidance documents, we have
compiled an FAQ outline about the new information released today. Below you
will find a brief analysis based on our best efforts to understand the
impact to our practice.  This is not legal advice, and we encourage you to
work with your institutional Title IX Coordinator and General Counsel
should you need to adapt any processes.

We invite you to join ASCA and NASPA for a free webinar *Title IX Turmoil:
Initial Analysis and Next Steps After the Withdrawal of the 2011 Dear
Colleague Letter on Wednesday, September 26, 2017 at 3:00 p.m. EDT**,
moderated by Kevin Kruger, NASPA President and **Tanya L. Jachimiak,
Director, Title IX Office, **Wake Forest University. * Click here
to register.

As we have stated previously, compliance is a floor, not a ceiling.  ASCA
will continue to provide support not only around actual guidance and
regulations but practices that are ethical, sound, and grounded in
fundamental fairness.  Keep calm and carry on the good work that you do.

In service,

 Jill L. Creighton
ASCA President
*Review of September 22, 2017 DCL & FAQ*

   - Rescinds April 4, 2011 DCL
   - Rescinds April 29, 2014 Q&A


   - Standard of proof -  The Preponderance of Evidence is no longer
   mandatory. Institutions may use either the preponderance of evidence or
   clear & convincing standard, however, institutions must use whatever is
   used for the rest of your conduct violations.
   - Written notice must be provided prior to first interview with the
   respondent and must include:
      - identities of the parties involved
      - the specific section of the code of conduct allegedly violated
      - the precise conduct allegedly constituting the potential violation
      - the date and location of the alleged incident.

 *General Changes:*

   - The 60-day time frame has been removed.
      - According to the 2001 guidance says schools must have "designated
      and reasonable time frames for the major stages of the complaint process"
      (p. 20) but does not give a number of days.
   - Clearly states burden of proof is on the school, not on either party, to
   gather sufficient evidence to reach a fair, impartial determination.
   - It is no longer required to let both parties appeal (if there is an
   appeal process), however it is permissible for both parties to appeal.
   - There is a prohibition on direct questioning/cross-examination,
   however there is nothing to indicate that it must be allowed.
   - The Prohibition on asking about complainant's sexual history with
   anyone other than the respondent has been removed, however there is nothing
   stating that it must be allowed.
   - Interim measures are no longer required and should be used when needed
   to ensure equal access as well as be available to both parties.

*Language from 2014 Q&A that is no longer in 2017 Q&A but is partially
addressed in 2001 Guidance:*

   - Informal resolutions
      - 2017 Q&A removes restrictions on informal resolutions, but the 2001
      Guidance document still contains restrictions, specifically that
      is inappropriate for sexual assault cases (p. 21).
   - Responsible employees - 2001 Guidance (p.13)
   - Confidentiality request by complainant - 2001 Guidance (p. 17)
   - Retaliation - 2001 Guidance (p. 17)

 *Language from 2014 Q&A that is no longer in 2017 Q&A and not in 2001

   - Language suggesting schools offer amnesty for drug or alcohol use is
   - Guidance related to students with disabilities is gone
   - Guidance related to international/undocumented students is gone
   - Guidance about delaying when working with police is gone

 *Special thanks to authors of this FAQ: Martha Compton, ASCA Director of
Education; Christy Anthony; Regina Curran; and Kevin Carmody.*

ASCA | asca at tamu.edu | http://www.theasca.org
PO Box 2237
College Station, TX 77841

ASCA, PO Box 2237, College Station, TX 77841
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*Christina Castorena, M.Ed.*
*Vice President for Student Services*
20000 68th Ave. W., Lynnwood, WA  98036 | edcc.edu
christina.castorena at edcc.edu | 425.640.1668

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On Fri, Sep 22, 2017 at 10:39 AM, Joe Holliday <jholliday at sbctc.edu> wrote:

> FYI below. I'm on a multi-agency call today at 11:30 with Senator Murray's
> staff on this. Let me know what your concerns are, if any. It looks like
> you can choose to keep the preponderance of evidence standard for now.
> Joe Holliday
> https://www.nytimes.com/2017/09/22/us/devos-colleges-sex-
> assault.html?smprod=nytcore-ipad&smid=nytcore-ipad-share
> The Education Department said colleges may use a higher standard of
> evidence before finding an accused student responsible, which could make it
> harder to prove claims.
> Sent from my iPad
> _______________________________________________
> wsssc mailing list
> wsssc at lists.ctc.edu
> http://lists.ctc.edu/mailman/listinfo/wsssc_lists.ctc.edu
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