Wednesday, August 5, 2020

MSU reviewing how to apply new Title IX regulations as Whitmer, Nessel join national lawsuit

June 5, 2020
<p>A Spartan flag is flown out front of the Hannah Administration Building on Dec. 8th, 2019. </p>

A Spartan flag is flown out front of the Hannah Administration Building on Dec. 8th, 2019.

Photo by Lauren DeMay | The State News

Michigan Attorney General Dana Nessel, with the support of Gov. Gretchen Whitmer, joined 17 other attorneys general in filing a lawsuit against the U.S. Department of Education's, or DOE, new Title IX regulations, according to a press release from the Attorney General's Office. The lawsuit challenges the final rule of the DOE's new Title IX regulations.

On May 6, U.S. Secretary of Education Betsy DeVos created new Title IX provisions for sexual misconduct cases on college campuses. The new provisions would go into effect Aug. 14.

Among the most notable changes, the new provisions would require universities to evaluate cross-examinations based on two different standards of evidence they could choose to apply, among others.

Schools could choose to apply the preponderance of evidence standard that requires a greater than 50% chance a claim is true or the clear and convincing evidence standard, which requires a greater burden of proof that an allegation is true.

How it affects MSU

Michigan State University is still reviewing the provisions and therefore, has not decided which standard of evidence they plan to proceed with, Associated Vice President of the Office of Civil Rights and Title IX Education and Compliance at MSU Tanya Jachimiak said.

MSU has a review group tasked with understanding the nuance of these new provisions to understand how they affect MSU's campus, she said.

"Throughout this, we're keeping the best interest of our community of survivors at the forefront as we revise the policy," Jachimiak said.

This review group is comprised of faculty, staff and students. Once these group members comprise a draft of the new policy in accordance with the new regulations, it will be posted online and released to the public, she said.

The MSU community will be allowed to provide feedback regarding the policy once released to ensure community voices are heard, Jachimiak said.

In terms of the several Title IX lawsuits MSU remains involved in, these new provisions are prospective, she said.

"I'm not able to comment on any lawsuit," Jachimiak said. "However, what I can say is that the regulations specifically provide that they are prospective, so therefore, it is of Aug. 14th, 2020, when they go into effect."

MSU has been heavily involved with lawsuits citing Title IX violations by the university. The university levied with a record $4.5 million fine in September for excessive violations of the Clery Act.

Recently, a former MSU sprinter sued the university for failure to enforce sexual assault regulations. This suit was filed as part of a broad set of lawsuits against the NCAA involving at least two other institutions, alleging a failure to uphold Title IX regulations after she was sexually assaulted in March 2017.

MSU lawyers also moved to dismiss one Title IX lawsuit after another was dismissed against Michigan State in December.

By filing this lawsuit against these new provisions, Nessel joins attorney generals from California, Colorado, Delaware, the District of Columbia, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin.

Statements from the Attorney General's Office

According to the Attorney General's office, these new provisions would weaken protections for sexual assault and harassment survivors and create "inequitable proceedings crafted to silence students from kindergarten to college."

“I find it appalling that the Department of Education would spend its time and resources on weakening protections for sexual assault and harassment victims on school campuses here in Michigan and across this nation," Nessel said in the statement. "This is a blatant disregard for the pain and fear victims of sexual assault and harassment face, and discourages reporting of these offenses. The fact of the matter is this: the final rule will make educational institutions less safe and diminish their ability to promptly deter, stop and prevent sexual harassment and violence.” 

Whitmer said the rules fail to change the culture of campus sexual assault, serving as a deterrent to survivor disclosure.

“As a survivor and a mother, it pains me to see how these new rules will water down Title IX protections for our students, which is why Michigan is joining several other states in challenging these new rules,” Whitmer said in the statement. “It’s important to stand up to efforts to weaken student protections against sexual harassment and violence that undermine the intent of Title IX."

According to the statement, these new provisions would:

  • Narrow student protections by redefining "sexual harassment." This redefinition would exclude a broad spectrum of discriminatory conduct under Title IX. Exclusions would include incidents of sexual harassment based on the location in which they occur and limiting when schools can respond to these incidents of misconduct.
  • Require extensive and unnecessary procedural requirements that would reduce reports of these incidents and undermine schools in providing a fair process to all students.
  • Cause confusion due to schools being forced to dismiss sexual harassment incidents that happen outside of new guidelines. This would require schools to adopt parallel code of conduct provisions to keep their campuses safe.
  • Force schools to make significant changes by August in the midst of the COVID-19 pandemic. This would cause schools to bypass input from community members such as students, parents, faculty and staff before instituting these new policies.

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