This article is part of series about sexual assault at the University of Louisville.
Proposed federal regulations governing how universities handle sexual assault reports will likely lead to only minor tweaks at the University of Louisville.
“We are not going to be in the position of having to blow it all up and start over,” Brian Bigelow, UofL’s Title IX coordinator, said of the university’s sexual assault conduct hearing process.
Regulations proposed earlier this month by Secretary of Education Betsy DeVos’ administration focus more on protecting the due process rights of students accused of sexual assault than past guidance from the Obama administration.
“Broadly speaking, the main focus of the regs, and I think the impetus for the drafting of regs, was concern that the due process rights of the accused were not being given adequate attention or being adequately respected by a lot of institutions’ procedures to handling sexual assault cases,” Bigelow said in a recent interview.
The proposed regulations, now in a 60-day comment period, are also more specific about how colleges should handle conduct complaints related to Title IX, Bigelow said.
A university would be responsible for investigating fewer types of sexual assault and at smaller range of locations or events, along with the option to use a higher evidentiary standard, according to the proposal. Changes to how students are questioned in administrative hearings and who is allowed to do the questioning also headline the proposal.
Bigelow said he was “surprised” at how balanced and detailed the proposal was. It received national criticism from victims’ advocates and praise from others. The proposal enshrines protections of the accused in law, while still giving schools flexibility in preventing additional trauma for the complainant, he said.
“Throughout this process, my focus was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment,” DeVos said in a statement announcing the recommendations. “That starts with having clear policies and fair processes that every student can rely on.”
Calling the proposal “ambitious” and “robust,” Bigelow hopes clearer definitions and standards will bolster students’ confidence in the process, making them more likely to report assaults.
Sexual assaults are nationally underreported, and critics of the proposal say its higher standards and focus on rights of the accused may further decrease the number of reports on campuses.
UofL sees few police reports of sexual assaults — one rape has been reported this semester, according to UofL Police crime logs. Because of student privacy laws, it is difficult to gauge how many conduct reports UofL receives for sexual assault or harassment.
Bigelow wasn’t sure how many sexual assault reports move through the conduct hearing process each year at UofL. A UofL spokesman asked Insider Louisville to submit an open records request for the information in late October. Despite two follow-ups, UofL’s records custodian has not acknowledged the request in the month since. (State law requires an acknowledgment of records requests within three business days.)
But traffic to UofL’s PEACC Center, which helps survivors of interpersonal violence at UofL, has skyrocketed this semester, according to director Tisha Pletcher. Not all of those students report their assaults, Pletcher said, adding she was “concerned” about the proposed regulations.
“I don’t think it would be easier on (survivors),” Pletcher said in a September interview shortly after the proposal was publicly leaked. “I think it would be harmful.”
After working for 14 years at the Office of Civil Rights — which works with Title IX at a federal level — Bigelow now oversees Title IX compliance at UofL. Anything that creates a hostile learning environment for a student on the basis of sex, including sexual assault, falls under his office.
If passed as is, the regulations will potentially lead to big changes for smaller schools, especially ones using a single person to investigate reports, Bigelow said. But UofL’s current conduct hearing process aligns relatively closely with what is proposed, he said, likely meaning small changes to how the school handles formal complaints of sexual assault and harassment.
Fundamentally, the proposal will not change UofL’s hearing timelines or the amount of due process already allowed to parties, Bigelow said. It will, however, require greater documentation as to the university’s reasoning behind decisions.
How UofL’s hearing process works, and how that could change
Most of UofL’s current conduct hearing process is the product of 2012 Title IX task force, designed to ensure compliance with 2011 Obama administration guidance on how universities should handle sexual assault reports. The task force included “numerous” victims’ rights advocates, a UofL spokesman said.
In the proposal, the definition of sexual assault or harassment shrinks to “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” Under less formal Obama administration guidance, the definition was simply “unwanted conduct of a sexual nature.”
Schools would also only be responsible for investigating incidents that happened at on-campus or at university-sanctioned events. That is somewhat of a gray area, Bigelow said, but he read it to include spots like affiliated housing, a common place for reports of sexual assault at UofL, and off-campus Greek houses.
If sexually assaulted or harassed, a student can file a student code of conduct complaint through the dean of students office. That office can provide remedies like no contact orders or changes in housing to help mitigate hostile living and learning environments.
In some situations, that is all a student wants, Bigelow said. UofL would still need to document that report, even though it didn’t head to a formal hearing. The reporting system would help schools track repeat issues and “go forward on our own behalf in the interest of preserving a nondiscriminatory environment for students,” he said.
“Even in cases that don’t go to a hearing, we will still have an obligation to assess whether or not a discriminatory educational environment is created and if so — did we respond in a way that was sufficient or not deliberately indifferent? Was it was it a reasonable response?”
A complainant can also go through a formal hearing process to potentially seek administrative punishment from UofL — a process which DeVos is attempting to clarify and define across the country. If an accused student is ultimately found guilty of sexual assault through the hearing process, he or she could be expelled or suspended, Bigelow said.
Most of UofL’s current process seems unlikely to change. A student making an accusation files a report, including verbally explaining what happened and providing a written statement to a student conduct coordinator.
The coordinator investigates the claim, including approaching the accused student and have them provide a written response. Both sides are able to recommend witnesses to the officer, who collects statements and evidence into what one survivor called a “hearing packet.”
At UofL, the hearing panel consists of three people — a student, staff member and faculty member — trained to make judgments about a variety of conduct violations. A representative from the dean of students office presides over the hearing.
Both the complainant and the accused can have advisers — typically a lawyer, but not always — with them to help develop questions of witnesses. Those advisers, however, are not allowed to act on behalf of the students. They cannot speak to anyone other than the student they’re with, make opening or closing statements or ask questions.
Normally, the hearing panel sits at the front of a conference room, with the two students and their adviser in front of them.
There can be a physical divider, like a curtain, placed between the students so they don’t have to see each other. In some cases, students can be in different rooms and communicate via phone or Skype to further avoid trauma. The proposal gives schools flexibility to continue those types of setups.
“There you have the direct confrontation but you don’t have the there’s not the same sort of intensity or potential trauma as being in the same physical space,” Bigelow said.
Each side can ask questions of witnesses, either posing questions through the panel or asking them directly. The parties can only directly question each other if both sides consent to it. If they don’t, questions of the other party are posed through the hearing panel.
Direct cross-examination would still be allowed under the proposal, a rule tied to the proposal’s emphasis on due process. Under a recent Sixth Circuit Court decision ruling, state institutions will need to allow direct cross-examination regardless of potential federal changes, Bigelow said.
“Both parties have the right to directly confront their accuser … and they have the right to present their case unfiltered through anybody else,” Bigelow said, adding hearing panel members may not pursue the same lines of questioning.
But students would not be allowed to personally question each other at all under the proposal. Advisers would be able to speak on behalf of their student during the hearing under the new regulations, and would be responsible for questioning the complainant or accused during direct cross-examination.
“That’s sort of a nod to the concern for the potential to retraumatize a survivor by … sort of softening the impact of direct examination,” Bigelow said.
Still, giving speaking power to advisers could give one student an advantage over the other if one is able to afford a lawyer while the other can’t. Schools would be required to provide a student an advisers if they couldn’t find or afford one on their own, Bigelow said, but the proposal is unclear about what exactly that would require of schools.
“I think it’s assumed that we’re not going to be providing attorneys to students,” he said.
UofL does not provide advisers to students currently, which can cause issues when students, especially complainants, can’t obtain a lawyer. A grant that used to provide pro bono attorneys to survivors for hearings ran out recently, Pletcher said. Greek Law, a program started by law student Joey Wilkerson, offers law students to act as advisers, but the program is still relatively new.
Advisers would not be able to ask the complainant about their sexual history, similar to a rape shield law, Bigelow said. While they would be able to ask about the specific assault, they would not be able to bring up past experiences, information Bigelow called “irrelevant” and “prejudicial.”
The full hearing, including reading witness statements onto the record, typically takes four to six hours, according to those familiar with the process. After, the panel decides if there was a preponderance of evidence that there was a conduct violation — typically a little over 50 percent — based off the evidence presented.
DeVos’ proposal suggests using a higher “clear and convincing” standard in sexual assault cases, although schools will be able to use the lower standard if they use it across the board for all conduct violations. UofL will likely continue to operate with the lower standard, Bigelow said.
Bigelow said he hasn’t determined what constitutes a “clear and convincing” standard, saying it lies somewhere between the 50 percent standard UofL uses and the “beyond a reasonable doubt” standard of criminal cases.
After the hearing, the panel recommends a decision and potential sanction, which then heads to the Assistant Dean of Students for a final decision. Either side can appeal the decision or the sanction if they disagree with it, Bigelow said. Under the proposal, both sides would still be able to appeal.
The public can submit comments on the proposal until Jan. 28. DeVos’ department must respond to all comments before issuing final regulations, which Bigelow estimates could happen in the spring. Any final regulations could also be challenged in court, potentially further delaying implementation.
The final proposal could come with a delayed effective date as well, so it is unclear if or when schools will need to meet the proposal.
If and when it gets approved, Bigelow says he’ll have to go through it with “a fine-tooth comb,” make a checklist and ensure UofL is in compliance.