In-depth look: amended interim sexual misconduct policy

Changes made amid ongoing Title IX investigation

Kelly Swanson

While under investigation for a Title IX violation, Washington and Lee University has amended its Interim Sexual Misconduct Policy, and the policy still awaits further changes.

Changes to the policy include mandatory disclosure of certain incidents to law enforcement, transcript notations for students who are dismissed or suspended for engaging in sexual violence, as well as notations for those who have withdrawn from the University during an investigation and the establishment of an “Advisor of Choice” to assist the complainant or respondent.

The policy, which went into effect July 1, was amended to adhere to new laws regarding sexual misconduct adopted by the Virginia General Assembly.

“When President Ruscio approved the Interim Sexual Harassment and Misconduct policy in July 2014, one of the reasons it was interim was so the university could be flexible about implementing changes in law while it worked on a final policy,” Lauren Kozak, W&L’s Title IX coordinator, said. “We anticipated that changes may become necessary due to the quickly changing legal landscape in this area.”

The changes come amidst a Title IX investigation against the school, filed last February.

Kozak as well as faculty members of the Student Faculty Hearing Board, which hears cases of sexual misconduct, declined to comment, as the investigation is ongoing.

Title IX is a federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity. The US Department of Education’s Office of Civil Rights conducts investigations of alleged violations of Title IX.

According to the Department of Education’s website, “the primary goal of a Title IX investigation is to ensure that the campus is in compliance with federal law, which demands that students are not denied the ability to participate fully in educational and other opportunities due to sex.”

The Changes Detailed

The amended sexual misconduct policy now requires the university to disclose information about a reported incident of sexual misconduct to law enforcement when deemed necessary to protect the health or safety of the student or other individuals.

A three-person University Review Committee decides whether or not disclosure is necessary. The committee consists of the Title IX coordinator, a representative from student affairs and a representative from public safety.

“When the Virginia legislation was being debated, some victim’s rights organizations argued that mandatory reporting to law enforcement would deter reporting,” Kozak said. “The final bill did attempt to address some of those concerns.”

Additionally, the new policy requires “prominent notation” to be made on the academic transcript of any student who has been suspended for, dismissed for, or withdrawn from W&L while under investigation for an offense involving sexual assault. Previously transcript notation was only made in cases of dismissal or suspension.

According to the W&L website page addressing frequently asked questions about the new policy, the transcript of a student who has either suspended or dismissed for an incident of sexual misconduct will read, “[Suspended or Dismissed] for a violation of W&L’s set of standards.”

If a student withdrawals while under investigation for an incident of sexual misconduct his or her transcript will read, “Withdrew while under investigation for a violation of W&L’s set of standards.

This withdrawal as noted does not constitute a finding or admission of responsibility on the part of the student.”

The Role of Advisors

The policy also now allows both complainants and respondents an “Advisor of Choice” through the disciplinary resolution process, who can be an attorney, friend, mentor, family member, or any other supporter.

“Advisors can advise complainants and respondents of applicable procedures and offer support and information on resources. They can accompany the complainant and respondent to any meetings and parties can request a recess to consult with their advisor. But, the advisors may not present evidence or question witnesses,” said Kozak.

Instead, the university provides both parties “Hearing Advisors,” who are undergraduate and law students that present the case’s evidence and questions witnesses in front of the Student Faculty Hearing Board.

Professor Melina Bell, who is an affiliate faculty member in the Women’s and Gender Studies Program and an Associate Professor of Law at the law school, says that the ability of students to have lawyers help them on their case safeguards due process.

“On the web there is a lot of talk of the erosion of due process during these hearings, but now with lawyers permitted I think that really boosts due process,” Bell said.

Other changes include incorporating resolution procedures for cases involving complaints against non-students into the policy, as well as specifying that investigations of sexual misconduct begin 24 hours after the initial meeting with the accused student.

Considering Students’ Roles

However, the policy remains “Interim” in light of the potential policy changes that may be implemented following the U.S. Department of Education’s Office of Civil Rights ongoing investigation of a W&L student’s complaint that she was discriminated against based on her sex.

A potential change that the school is currently discussing openly is who should hear and decide cases of sexual misconduct, which is currently the job of the SFHB.

Kozak said that discussion groups will continue through the 2015-2016 school year regarding this question.

“Various options have been proposed and will be discussed including using external adjudicators, a panel of administrators, a panel of faculty and administrations, panels that include students, and panels that include students in non-voting advisory roles,” Kozak said.

According to Kozak, the university began contemplating changes because federal guidance suggests that students should not serve on panels that decide the consequences to potential sexual misconduct cases.

The April 2014 “Questions and Answers Regarding Title IX,” published by the United States Department of Education states, “Although Title IX does not dictate the membership of a hearing board, OCR [Office of Civil Rights] discourages schools from allowing students to serve on hearing boards in cases involving allegations of sexual violence.”

Senior Hannah Gilmore, one of the undergraduate students serving on the SFHB, says that the board began meeting last year to discuss this issue.

“One of the things that we brought up as a board was that the student perspective can be very helpful in determining some of these very grey cases,” Gilmore said. “So for example, sometimes faculty and administration do not understand that it’s common for someone to go upstairs to go get a drink in somebody’s room, or whatever, whereas the students understand that.”

Gilmore also addressed some of the issues that exist with students serving on a board that hears cases of sexual misconduct.

“It can get really awkward if you hear a case involving two students who are your classmates and later on you have a class with them,” she said. “That can be uncomfortable for both the board members and the complainer or respondent, particularly for the respondent if they are found not responsible. It is sometimes still really easy to still think about someone in that context.”

Overall, Gilmore says she is not sure whether or not she thinks students should serve on the board or not.

“I think while it is a school decision, I would be interested in hearing what the students think,” said Gilmore. “And whether or not they feel that students should be hearing these cases or not.”

If decided that students should not serve on the SFHB, cases of sexual misconduct would be the only type of violation at W&L that students would not determine the consequence for.

However, Bell points out that students would still govern through the Executive Committee and the Student Judicial Council. Because members of the SFHB have to go through extensive training to hear cases of sexual misconduct, Bell believes this might be asking too much of students.

“The cases that students wouldn’t be governing are the cases that they least want to deal with or are the least equipped to deal with,” Bell said. The SFHB members have to go through lots of training. That is a lot to ask of students who are trying to do school work as well.”

Overall, Bell said she is content with the changes the university has made to the policy.

“If you had asked me that a few years ago what I would change about the policy I would have a list for you, but now I think they have done really well,” Bell said.