April 25, 2020
There is undoubtedly a lot going on with our neighbours to the south right now. It’s hard not to be a cliché rubber-necker, gasping at the daily press hearings about Covid-19. While watching Trump’s odd behaviour is indeed entertaining, my eyes are on his Republican colleague, Betsy De Vos, the Secretary of Education.
I am a harassment investigator and lawyer in Canada. I do a lot of third-party investigations for Canadian universities under campus sexual misconduct policies. I always keep my eye on what is going on in the US in terms of sexual harassment and sexual assault investigations as I think they are about five years ahead of us in terms of experience with third-party investigations.
You may recall that Ms. De Vos became the Secretary of Education in early 2017 by a tight 51-50 vote, saved only by Vice-President Pence. In the fall of 2018, she announced sweeping changes to how sexual assault cases on campus would be handled. As many people will recall, Title IX is US federal legislation from the 1970’s that set out to balance womens’ opportunities in post-secondary education and opened the door to gender balance in women’s university athletics in the 80’s. Under the Obama administration, Title IX became the launching point to make US Colleges and Universities commit to dealing with sexual harassment and sexual assault on campuses.
Par for the course with a lot of issues, Trump’s Republican government has set out to change Obama’s framework.
In November 2018, Ms. De Vos introduced her proposed changes to Title IX processes. Her mandate was clear in her statement, “Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined.”
From my perspective, Ms. De Vos’s balanced mandate was, surprisingly, reasonable. Her initial framework proposals, laid out here , didn’t have me gasping in horror as I thought that they would. Part of her proposal allows schools the option of choosing the status quo “preponderance of evidence” standard (the civil, human rights standard that we use in Canadian human rights investigations, 50.1%) or the higher “clear and convincing evidence,” standard. I’m actually okay with this change and the ability to opt-in; in the 120-or-so investigations that I have done, I am aware of just how many times I have struggled with deciding at the eleventh hour on the balance of probabilities. It is a tough standard to make a final decision on without draining a client’s bank account and following every possible lead. I understand the rationale of using the higher standard in these cases, given the possible of serious sanctions if there are findings of harassment or assault.
I’m not 100% sold on some of her other proposals (live hearings in the higher education context including cross-examination,) but I do really like the prohibition of the ‘single-investigator model’ and changes to make sure that the decision-maker is separate from the Title IX Coordinator or investigator. In my own experience in the university-context, it is very confusing for students with respect to differentiating between the warm advocates/ advisor\ and the neutral investigators. Making this distinction clear will be beneficial for students who are usually only go through this type of university process once.
Rumor has it that while we’re all watching her boss touting the benefits of disinfectant, Ms. De Vos will be finalizing her proposed Title IX rules this month and that the application will be to both post-secondary institutions as well as K-12 schools.
Like any legislation, the devil is in the details. I, for one, am looking forward to pouring through the details and being distracted from the other gaffes going on in Washington.
I’ll keep you posted.
Jennifer White, AWI-CH, B.A., LL.B., LL.M.
Investigator and Lawyer in Ottawa, Canada.