The Arizona Board of Regents on Thursday approved major changes to the sexual harassment policy covering students at the University of Arizona and the state’s two other universities.
The changes are meant to align with the Department of Education’s May 6 release of new regulations governing how campuses should investigate and adjudicate sexual misconduct under Title IX, a federal law prohibiting sex discrimination. Critics of the new Title IX policy say it bolsters the rights of the accused while reducing the scope of cases that colleges are required to investigate.
One of the largest changes to the new federal guidelines is that college coaches are no longer automatically considered mandatory reporters of possible Title IX violations, but rather at the college’s discretion. But at UA, ASU and NAU, coaches and all other “individuals charged with supervisory authority” still have a duty to report any suspected Title IX or anti-harassment violations, according to the policy the regents approved.
ABOR’s newly created policy as it relates to Title IX defines sexual harassment under that law as sex-based conduct that includes one or more of the following: Unwelcome conduct that a reasonable person would find so severe, pervasive and objectively offensive that it denies a person equal access to his or her education; an employee offering any “aid, benefit or service” of the university in exchange for participation in “unwelcome sexual conduct”; or sexual assault, dating violence, domestic violence or stalking.
In response to the Education Department’s nearly 2,000-page revised sexual misconduct policy, the Arizona Board of Regents and the three state universities created a work group to write and implement a new policy, according to ABOR documents. Because Title IX’s standards are different from other nondiscrimination laws, the group recommended creating the separate provision to ABOR’s policy to govern Title IX-related sexual harassment, the documents say.
The changes to the Education Department’s Title IX guidelines went into effect on Aug. 14, as did ABOR’s policy change, so as to be in compliance with federal regulations.
Some of the major changes to Title IX include:
- Narrowing the definition of sexual harassment so that the action must be “severe, pervasive and objectively offensive.”
- Dating violence, domestic violence and stalking are now considered forms of sexual harassment and do not need to meet the above criteria. Sexual assault is also excluded from the “severe, pervasive and objectively offensive” standard.
- Universities are not obligated to investigate reports of sexual harassment (including sexual assault) that occur off campus, unless the location is in use by an officially recognized student or institution organization, such as a fraternity or sorority house.
- Live cross-examination of all parties will be allowed during Title IX hearings.
- Universities will be able to choose whether to use a “preponderance of the evidence” standard as a burden of proof, as they previously did, or adopt the “clear and convincing” standard, which is higher.
- Schools no longer have to investigate sexual harassment complaints that occur outside of the U.S. in study-abroad programs.
- Universities must move from the single investigator model to a thee-person panel, which includes a coordinator, investigator and decision-maker.
- Schools must provide evidence of the allegations to parties at least 10 days before requiring a response and parties will not be prohibited from talking about the allegations.
- There is no specific time frame in which a university must respond to reports of sexual violence. The standard is now that they exercise “reasonably prompt” periods for carrying out each step in the complaint process.
- Schools will only be held responsible for mishandling complaints if they exercised “deliberate indifference” in their investigation.
A new addition to ABOR’s policy, consistent with the updated Title IX regulations, is that each university shall establish a process for addressing complaints under the law and employ at least one Title IX coordinator.
At the UA, that person is Mary Beth Tucker, who returned to the role in January, after the previous Title IX Director Ron Wilson left the school to take a job at the United Nations.
In May, Tucker told the Star that regardless of how the new regulations were applied at the UA, her office would “continue our efforts to equitably and compassionately address sexual harassment and all other forms of discrimination.”
According to the UA directory, the Office of Equity, Inclusion and Title IX consists of five employees: Tucker, an executive assistant, an HR generalist and two civil rights investigators.
As of August 13, the UA said it was anticipating that upwards of 30,000 students would be returning to campus this semester.
