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APLU Statement on U.S. Department of Education’s Release of Final Title IX Rule

May 6, 2020

Washington, DC – APLU President Peter McPherson today released the following statement regarding the U.S. Department of Education’s release of a final rule on Title IX and campus sexual misconduct.

“The safety and well-being of students and the entire campus community is a primary obligation and responsibility undertaken by public university leaders.  A safe campus is inseparable from the success of a public university’s education, research and community engagement missions. Our obligations are guided not just by the floor set by Title IX, but also moral convictions, sound campus policies, and, of course, the U.S. Constitution, federal and state law.

“APLU is deeply concerned on multiple levels with the U.S. Department of Education’s new Title IX rule. We and member institutions engaged with the Department of Education and White House Office of Management and Budget throughout the regulatory process to explain our substantive concerns. The administration had every opportunity to address concerns of the higher education community in the final regulation. Instead, the final rule largely retains the deeply flawed, federally micromanaged approach to regulating how campuses adjudicate claims of sexual misconduct. Most substantively, the rule will inappropriately make student conduct processes more akin to courtroom proceedings.

“One of the most significant concerns we expressed and continue to have with the rule is the unintended consequences of requiring a live hearing with direct cross examination by counsel as it will likely discourage reporting of incidents of campus sexual misconduct. Some will worry about an anguish-inducing process that includes requiring them to face direct questioning by respondents’ aggressive counsel in a live hearing courtroom-like setting. There are alternative forms of cross examination that are consistent with public universities’ due process obligations and are far more appropriate than the requirements under the rule.

“While the Constitution appropriately requires due process for public universities, these requirements are very different than those imposed by the final rule.  This is out of recognition of the inherent differences between a criminal proceeding in which life and liberty are at jeopardy and one in which violations of a student conduct code are adjudicated. The final rule inappropriately shifts the campus process into more like a criminal proceeding.

“Public universities will work to reassure the campus community that sexual misconduct should be reported. This begins with conveying to survivors that they will be treated by their universities with the respect, compassion, and dignity they deserve and will have access to appropriate support services. It also means universities will need to convey how they will do their best within the regulations to ensure procedural fairness to complainants and respondents. This is a constitutional and moral obligation.

“The timing of the release of the final rule could not have been worse. APLU and partner higher education associations recently wrote to the Department emphatically requesting a delay on release of a rule. As colleges and universities are managing the unprecedented COVID-19 crisis largely from their homes, this new rule requires that schools put in place complex and massively expensive new requirements.

“We know these regulations are not the end. Undoubtedly, there will be litigation and some members of Congress will consider legislative action. APLU will consider how we engage in these processes to register our deep concern with the regulations.”

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