Changes to Title IX policies have come to Duke, but the University didn’t give the community much time to offer feedback on them before implementation.
Title IX is a 48-year-old federal law that prohibits discrimination on the basis of sex in educational or federally funded programs. It is also used to protect victims of sexual assault on university campuses, given legal mandates that schools are responsible for investigating cases of sexual misconduct.
New Trump administration regulations increased the standard of evidence for schools to investigate sexual misconduct, a move that advocates say puts students at risk by raising the standard for investigations and not adequately addressing misconduct that occurs off campus.
However, critics of the Obama-era regulations lauded the new rules, claiming that the previous rules pressured them to support accusers without offering fair treatment to the accused.
Secretary of Education Betsy DeVos, who facilitated the policy update, told The New York Times in May that she feels the new policy updates recognize “that we can continue to combat sexual misconduct without abandoning our core values of fairness, presumption of innocence and due process.”
The new rules were released May 6, and institutions were given until Aug. 14 to implement them. At Duke, the changes were published on the Office of Institutional Equity website Aug. 11 and announced via the Duke Daily, Duke’s email newsletter, the following day.
Some students criticized the University for what they saw as a lack of transparency in communicating its implementation of the Title IX changes to the public, including offering only two days for public comment after the new rules were widely announced.
How the new rules were implemented
Kimberly Hewitt, vice president for institutional equity, wrote in an Aug. 31 statement to The Chronicle that the updated policy was constructed by “a working group of representatives from Human Resources, the Provost’s Office, Legal, OIE and Student Affairs who worked together and in subgroups to develop the policy and procedures.”
“As part of our process we presented the proposed policy to several stakeholder groups to get their feedback that included student and faculty governance, relevant committees, Human Resources at the University and the Health System, various levels of University leadership and other administrators,” Hewitt wrote.
One stakeholder identified in the statement was the Student Sexual Misconduct Prevention and Response Committee—also known as the Student Sexual Misconduct Task Force—which was recently restructured under the leadership of Mary Pat McMahon, vice provost and vice president for student affairs.
Hewitt wrote that OIE and Student Affairs regularly meet with the Student Sexual Misconduct Prevention and Response Committee, and that both offices will be “using this open forum this fall to get their perspectives.”
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Hewitt also wrote that the working group engaged with a legal expert specializing in higher education and Title IX to create the umbrella Policy on Prohibited Discrimination, Harassment and Related Misconduct and the Title IX Sexual Harassment Grievance procedures that contain the rules mandated by the Department of Education.
McMahon and Hewitt sent an email to undergraduate and graduate students Sept. 9 regarding new sexual misconduct policies, including the Title IX rules. They outlined the implementation process and major changes from the previous rules.
Hewitt said in a Sept. 9 interview that one of the most significant changes with the new rules is that staff and faculty on campus can be the accused party in a Title IX hearing.
Changes were also made to the cross-examination element of Title IX trials. While Hewitt said that “historically, [they’ve] been able to separate people,” victims must now face the accusers in trial. The accused and victim each are appointed an advisor who is there specifically to ask questions of the other party.
The third big change Hewitt described is that any information that is to be used in the hearing must be available for cross-examination.
“So if we learn something in the investigation process, or somebody shares information, and they’re unwilling to testify or participate in the hearing, we can’t consider it,” Hewitt said, calling the rule a “big departure” from previous policies.
Hewitt said the working group set up a week-by-week timeline. They worked with an outside lawyer, who Hewitt said “made himself an expert on these rules,” which she said were thousands of pages long. At one point they even broke up into subgroups—one would focus on staff and faculty policies, another on students and another on “evidentiary questions and the process.”
She said that by the second week of July, they had a “rough outline of what the policy was going to look like” and had a series of meetings with different groups to get feedback on their work.
Two days for public comment
Once the new rules were drafted, Duke released them for community feedback. But for the Title IX changes, that public comment period was only two days after they were widely announced.
On Aug. 12, the Duke Daily included a message announcing that community members were invited to submit feedback to the University about the proposed Title IX changes. The announced deadline for comments was Aug. 14, just two days later.
Duke Student Government included the link to submit comments in its weekly Thursday email to undergraduate students Aug. 13. The Graduate and Professional Student Council sends its weekly emails on Mondays and was not able to share the information with graduate students via a mass email before Aug. 14, according to Jay Lusk, GPSC president and an MD/MBA candidate at Duke.
However, the GPSC Executive Committee provided feedback about the Title IX policy earlier in the summer, Lusk wrote in an email. He added that they “took efforts to engage students who are not themselves active in GPSC when it was possible.”
Lusk wrote that the timeframe for commenting was inadequate.
“I do not think that a two day feedback window was sufficient and am disappointed that students were not able to engage more fully with the revisions to the Title IX policy,” he wrote.
The working group will “review the efficacy” of the new policies in January 2021, Hewitt and McMahon wrote in their Sept. 9 email to students. They invited students to submit comments to Victoria Krebs, associate dean of students for Title IX outreach and response.
“While our policies must adhere to federal guidance, we will incorporate community feedback and input to the fullest extent possible,” they wrote.
The initial comment deadline was later extended to Aug. 28, Hewitt said, but only for comments on the changes to the misconduct policies and procedures that were not related to Title IX, which were not subject to the Department of Education’s Aug. 14 implementation deadline.
“Given that these changes [to the harassment policy] also extend to aspects of the policy and procedure that do not relate to the federal Title IX regulations, the comment portal remained open until August 28 to allow for more responses,” Hewitt wrote. This extension for the non-Title IX policy was posted on the OIE website Aug. 14.
“We were very intentional about identifying the stakeholder groups and talking to them and getting feedback from them and integrating proposed policy procedures before we issued a public comment period,” Hewitt said Sept. 9, adding that there was “no agenda not to be open about [implementing the new policies].”
She wrote in an Aug. 31 email that the policy will be revised in six months and that a longer open comment period will be provided at that time.
“This will allow us time to monitor how the new policy and processes are working, and consider all the comments,” she wrote.
Hewitt also wrote in her Aug. 31 statement that OIE received 14 responses from the community between Aug. 12 and 14.
“We will do another communications push before the six-month review,” she wrote.
Other members of the community expressed frustration regarding the initial two-day period for feedback.
Emma Dolan, a fourth-year graduate student in the department of pharmacology and cancer biology, wrote in an Aug. 25 email to The Chronicle that she did not have time to review the changes and provide comment given her busy schedule.
“Unfortunately, I think the short timeframe for comments was indicative of a lack of consideration for workers’ input,” Dolan wrote.
The Graduate Student Union has previously advocated for improvements to the University’s policy on harassment, with a particular focus on expanding protections beyond federally protected classes and including neutral parties in investigations rather than Duke employees.
“A lot of my energy went to the harassment policies last year,” wrote Madeline Sells, a fourth-year graduate student in pharmacology, in an Aug. 26 email.
She wrote that that recent policy changes “are not due to any of the work we have done, or fixing the issues we would like addressed, but are simply to align Duke with new government policies, which they were very direct about.”
“I think the short time frame for comment is indicative that they are aware these changes were not designed to satisfy the needs of the student body,” she wrote.
Zollie Yavarow, also a fourth-year graduate student in pharmacology, wrote in an Aug. 26 email that she was angry about the short comment period.
“I only found out about it two hours or so before commenting closed and didn’t have time to comment,” she wrote. “It made me feel like they did not actually want comments and were opening comments to ‘check a box’.”
Yavarow is a member of the Student Sexual Misconduct Prevention and Response Committee. She wrote that she was “under the impression by OIE leadership that although the new Title IX regulations are less stringent, Duke would still hold itself to a higher standard”.
“I think that they have failed at this and I feel lied to,” Yavarow wrote.
Hewitt wrote in a Sept. 8 email that she wants the community to “understand that we care about this issue tremendously and we understand the implications of these new regulations are challenging.”
“Unfortunately, the 1000+ page federal regulations do not allow much flexibility for universities and so I understand that there are probably parts of the new Title IX procedures that are frustrating and disappointing to the community,” Hewitt wrote.
She also wrote that OIE would produce a Frequently Asked Questions page “in order to be more responsive to the concerns being raised now and to help clarify what is legally required and the limited flexibility that we have within the confines of these new regulations.”
“We are always open to meet with any student, faculty or staff member who wants to share their feedback with us,” Hewitt wrote.
In May, The Chronicle reached out to Jayne Grandes, assistant vice president for Title IX compliance at the OIE, to request an interview about how Duke was planning to implement the proposed Title IX changes on campus.
Hewitt responded on Grandes’ behalf, writing in an email that she and Grandes were not available for an interview at the time. She added that Duke was reviewing the rules so that they could be implemented by the Aug. 14 deadline.
“In this process we are necessarily making adjustments to our existing policy in order to be in compliance,” Hewitt wrote. “Duke remains committed to working with students, faculty and staff to create a safer community for everyone.”
Hewitt said Sept. 9 that at the time of the previous interview request, the Title IX team “really didn’t have any answers.” She said they were busy attending webinars and working together to understand what the regulations said.
“I wouldn’t phrase it as a ‘refusal to talk,’” she said. “I just felt like at that point, we didn’t have a lot of information to share.”
On Aug. 20, The Chronicle reached out again by email to Grandes and Hewitt to request an interview about how the University handled the Title IX changes. Hewitt again responded on behalf of herself and Grandes and declined an interview, asking The Chronicle to email her written questions instead. Hewitt responded to the questions Aug. 31.
The Chronicle reached out to Grandes and Hewitt Sept. 9 to ask for comment regarding transparency concerns, including the declined interview requests. Grandes did not respond, and Hewitt agreed to the Sept. 9 phone interview.