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New proposed federal rules might change how Minnesota colleges handle sexual misconduct

November 17, 2018

Far-reaching new rules proposed Friday could force Minnesota colleges and universities to change how they handle sexual misconduct complaints, including campus rape.

Around the state, schools are digesting the plan of Education Secretary Betsy DeVos, who said she aimed to better balance the rights of alleged victims and the due process rights of the accused. The proposed rules narrow the definition of sexual harassment, reduce the instances when schools are required to investigate and call for live hearings, among other changes.

In Minnesota, the proposal drew criticism from advocates for sexual assault survivors and some campus officials, who said it would discourage victims from reporting and make it tougher to hold assailants to account. But others, including attorneys for the accused, said the new rules would make campus investigations fairer and roll back cumbersome demands on colleges. And while nothing is final theres a 60-day public comment period the phones of experts in handling such complaints are ringing.

Ive had a number of schools reach out to me, said Minneapolis lawyer Kathryn Nash, a specialist in campus sexual harassment and assault who provided input to DeVoss team.

The proposed regulations come as a high-level task force in Minnesota considers recommending a review of Minnesotas laws to possibly make it easier to prosecute cases in court when a sexual assault victim is too intoxicated to consent.

Last year, Minnesota colleges and universities fielded 400 reports of sexual assault and investigated 172 of them, according to data campuses are required to report to the Minnesota Department of Education. In the majority of the remaining cases, the accuser opted out of a campus investigation. In 89 cases that the campuses did investigate, the person facing allegations was found responsible for sexual assault.

The proposed provision with the largest impact, Nash said, is the mandate that all higher education institutions hold live hearings, with cross-examination by the parties advisors, as part of the complaint resolution process.

Many private colleges and universities dont currently conduct such hearings, Nash said. They are expensive and create more opportunities for critical mistakes as institutions are required to make on-the-spot decisions.

The hearings could have a chilling effect on alleged victims, who might be more reluctant to pursue a formal complaint if faced with an in-person cross-examination, Nash said.

The live hearings requirement surprised Carl Crosby Lehmann, vice president and general counsel of St. Olaf College. He called it really problematic.

This was radically different from the draft regulations that were leaked earlier this year, Crosby Lehmann said. More than anything I think it will create a barrier to victims who want to come forward and use our process.

The University of Minnesota declined to discuss the proposal, saying it is still reviewing it and that the rules will likely undergo changes based on feedback in the public comment period. In a statement, the Universitys Office of Equal Opportunity and Affirmative Action said the U is committed to addressing reports of sexual misconduct in the most effective and sensitive manner.

Both the U and St. Olaf are facing lawsuits from current or former students claiming they did not receive due process after they were accused of assault. The U is seeking to dismiss a discrimination suit by nine Gopher football players, some of whom were suspended or expelled after a woman alleged she was raped in 2016.

At Gustavus Adolphus College in St. Peter, Vice President for Student Life JoNes VanHecke said the campus had moved away from using mediation and cross-examination in addressing sexual misconduct complaints approaches that Obama-era guidelines strongly discouraged. The new rules would likely mean a return to these practices.

VanHecke said he generally welcomes the greater flexibility and more limited liability under the proposal. But in some ways, they are a moot point. All employees at Gustavus are required to report allegations of sexual misconduct that students or others share with them to the administration a policy the University of Minnesota also adopted in recent years.

I still want us to be accountable every single person at Gustavus to make sure our students get the resources they need, she said.

For us at Gustavus, not a lot will change, she added. Colleges and universities have been at this for years and have for years been trying to find the appropriate middle ground thats fair to all our students.

Victim advocates decried the changes as an attack on Title IX, the 1972 law that protects against discrimination based on sex at education programs receiving federal money.

If these draft rules go into effect, schools will become more dangerous for all students and more schools will shield harassers and rapists, Fatima Goss Graves, head of the National Womens Law Center, said in a statement.

Teri Walker McLaughlin, executive director of the Minnesota Coalition Against Sexual Assault, said she agreed wholeheartedly.

It does negate a lot of the work thats been done. Its like rolling back time, she said. The idea that theyre going to have to face criminal defense lawyers for questioning, rather than a school official... thats frightening for a victim survivor.

The vast majority of sexual assault attacks go unreported already, she said, and the changes will push it back even further.

Others say that change was necessary as the pendulum had swung too far in favor of victim rights, and that the due process rights of students accused of misconduct needed greater protections.

The U.S. Department of Educations proposed Title IX rule appears to bring more balance to how colleges and universities handle campus sexual harassment and assault, said Catrin Thorman, policy fellow at the Center of the American Experiment in Golden Valley. This is necessary to support and protect survivors and restore due process.

The two dont contradict each other, Thorman said: Having a process to let due process work does not negate the schools obligation to meaningfully respond to sexual harassment claims.

Beau McGraw, a Lake Elmo defense lawyer who represents a number of young men accused of sexual assault at area schools, heralded the proposed rules as a huge improvement. Allowing the accused to confront their accusers about the claims in a hearing is a significant improvement in protecting due process rights, he said.

Another significant change, McGraw said, is the provision allowing schools to choose a heightened standard of proof.

I think schools are going to be between a rock and a hard place knowing that they have an opportunity to choose the heightened standard of review of clear and convincing evidence, rather than the existing standard, which is the preponderance of the evidence.

Thats really a key development, he said.

Jennifer Bjorhus 612-673-4683 jennifer.bjorhus@startribune.com

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