Transcript

Host: Hello, and welcome to Prevention and Protection, the United Educators (UE) Risk Management podcast. Today’s discussion of how the 2020 Title IX regulations have impacted higher education institutions is hosted by Heather Salko of United Educators’ Risk Management Department. Heather is the Manager of Risk Research and is joined by two guests to discuss this important topic. Before we begin, a quick reminder to listeners that you can find other episodes of Prevention and Protection, as well as other risk management resources on our website, www.edurisksolutions.org. Our podcasts are also available on iTunes. Now, here’s Heather.

Heather Salko: Thank you, and hello to our listeners. Today, we are lucky enough to be talking with Joe Storch and Gemma Rinefierd of the SUNY Student Conduct Institute to discuss the implementation of the 2020 Title IX regulations, and just how those regulations have impacted sexual harassment and sexual violence response and investigations on campus. Joe Storch serves as Associate Counsel at SUNY, chairing its Student Affairs Practice Group and leading the SUNY ARRIVE Center where he serves as Principal Investigator for more than $15 million in grants and external funding, used to develop innovative resources to help efficiently and appropriately respond to and prevent violence and harassment on campus and in the community. He oversees the SUNY Student Conduct Institute and has provided live training to tens of thousands of higher education professionals engaged in response to violence and conduct violations. Joe received his law degree from Cornell Law School and is on the editorial board of the Journal of College and University Law.

Gemma Rinefierd is the Founding Director of the Student Conduct Institute, a national training program. Gemma has worked in student administration for more than 18 years after earning her doctorate in higher educational leadership from the University of Rochester. She focuses on issues involving student conduct, student development, residential life and housing, due process, Title IX, sexual and interpersonal violence prevention and response, student leadership, behavioral assessment, among other important educational topics, and she does present nationally on these topics regularly. Welcome to you, both Joe and Gemma.

Joe Storch: Thank you so much, Heather, and thank you to the whole team, all our friends at United Educators.

Gemma Rinefierd: Thank you so much for having me us today.

Salko: Right. We’re so happy you’re here. I am really delighted that you are able to join us on the podcast today, and I know that you both have many thoughts about and reactions to the Title IX regulations that you would like to share. Before we get into that discussion, we may have some listeners who aren’t quite familiar with the work that you’re both doing through SUNY and SCI. So Joe, would you take a moment to talk about the background of what you’ve been working on in your initiatives?

Storch: Absolutely. Thank you so much. Our chancellor, Dr. Jim Malatras, stood up the Center for Advanced Research in Reducing the Impact of Violence Education, the ARRIVE Center. Higher education loves an acronym after all, and that has pulled together a number of programs we do to try to significantly reduce the cost while really raising the quality of training and resources out there. So not just the most well-resourced institutions, but institutions of all types who serve students of all types are able to access quality training quality resources. It’s been an incredible journey over the last five years and that includes our RAPID training, which is an 11-minute long training that we provide. It’s customizable for each institution to train campus security authorities under the Clery Act and responsible employees or persons with authority under Title IX.

It includes our SPARC training, which we’re re-releasing next week as SPARC Go, completely free. The most high-quality, cutting edge prevention training that any institution can run on any learning management system or on the web. The voiceover is by an actor from Hamilton, the musical, the ed tech is really incredible and new and innovative. And of course, we give it away for free. Campuses can download it and customize it and host it themselves for free. And a number of other programs, including what Gemma will describe, the Student Conduct Institute [SCI]. Gemma.

Rinefierd: Thanks, Joe. So the Student Conduct Institute is a training program. We have approximately 10,000 learners in our system right now across 39 states and over 460 institutional members. We train in the areas of sexual and interpersonal violence response on campuses. We broadly help with a number of different topical areas in student conduct and provide synchronous and asynchronous learning opportunities digitally and in person. So we’re really happy to provide that service to our colleagues in higher ed.

Salko: Wonderful. I know it’s a service that is much appreciated. Gemma, let me turn to you. Let’s get into the talk now about the 2020 Title IX regulations themselves. These, of course, were released in May of last year and the required implementation date was Aug. 14 of the same year, which didn’t leave schools very much time to get final policies and procedures in place. I have two questions for you. First, when you initially reviewed the final regulations, what was your reaction? Then, now as you’ve had some more time and you’ve been working with schools through SCI on the implementation and the impact, what have you heard from them about what’s happening on their campuses?

Rinefierd: Well, the initial reaction was that it was long and that the implementation period was short. One of the first considerations is that we had COVID to contend with as well and conduct professionals who were deeply involved in policy design and language and implementation of COVID issues at the same time. Then also just generally the month of August in higher ed is what it is. So I thought about those things first, but then we really dove into the content and started thinking about it very much from a practitioner perspective.

So I just want to kind of point out as I’m speaking through what the impact has been, it’s really from the lens of the practitioner. So I know there are a number of other viewpoints, victim advocacy, for example. I’m really going to kind of focus on the process and the implementation of that process from the practitioners, the Title IX coordinators, the student conduct directors, and administrators who are trying to implement the rule and make sure that they’re following everything that they need to do for successful adjudication.

The second question about the impact, I think it’s really been a mixed bag. There are absolutely aspects that improve consistency of process and certainly other aspects that have been a real challenge, difficult to navigate and negotiate for campuses. So it’s been a mixed bag. I can maybe start in thinking through some of the things that have been a little bit more difficult to implement. The live cross-examination I think is the big one. That’s a very different aspect of this work that has typically not been part of our process. So that requirement and particularly the requirement to submitting to the cross for any statement to be used, I think is something that has been really a challenge. There are some logistical issues that are challenging here. For example, if an advisor doesn’t show up for some reason and/or they are dismissed from the process in their role based on failure to adhere to decorum rules that have been set forward, for example, the college or university has to provide one.

So how does that work? Do colleges and universities need to have someone waiting in the wings just in the off chance that something like that happens and would that happen with consistency and, just a lot of logistics questions related to those kinds of issues.

I think the unclear relationship and division of labor between Title IX and conduct offices in this space can sometimes be confusing depending on what your campus structure already is. We’ve seen issues with witnesses, so having witnesses appear and then concerns when they don’t appear, not being able to use any of the statements that they had made prior. So that really has been something that we’ve struggled with a bit, and I think we’re wanting to make sure that we work diligently to ensure that everyone can attend all of the hearings, all of the scheduled meetings as needed. It is just a challenge. There’s a lot of different schedules to consider. So some of those logistics issues are sometimes problematic.

I think the outcome letters, the changes in the way that those are now needing to be constructed. I think that there are positives to the outcome letters, but also they are a challenge. There are a lot of information that is cut and pasted from the investigative report and or other correspondence and documents that we exchange. So it feels maybe not so student-centered, a bit repetitive around the process rather than the outcome. The sanctions and rationale, even though those are included, it’s a lot of recapping. So I think that’s something that folks are getting used to.

The inconsistency between the student conduct process and labor management priorities, they’re not always the same and the regulation of employees and students are not the same. So the education-centered process for students is a little bit different, and so that’s a consideration that campuses are working through, the Title IX coordinators who oversee HR issues and student issues.

A lot of uncertainty about how to advise complainants who don’t wish to be identified, or don’t want to have to be cross-examined. So anonymous reports where you have multiple anonymous reports about the same respondent, but no individual wants to come forward as the named complainant and what you do with other anonymous complaints. So it’s a little bit less clear in the final rule. So those are some of the things that we’ve seen our campuses struggle with a little bit and having to work through. And not all of it is a struggle. Some of it was just a confusion or difficulty or a staffing issue to make sure that they have enough folks to do that work.

So those are some initial thoughts on providing some insight into how practitioners are moving through the new aspects of the final rule.

Salko: That’s helpful. There are a lot of challenges, and so in addition to those challenges that you so helpfully set forth for us, there’s also been backlash, especially from the victim advocacy community. We did recently see that the Biden administration did announce that the Department of Education will review the regulations and the impact that they’ve had. We’ll touch on that a little bit later, but I’m curious, have either of you, Gemma or Joe, seen, despite all the challenges, anything beneficial come to campuses from these regulations?

Rinefierd: I do think that there are aspects of the final rule that really helped the field of conduct in higher ed. There are certainly some things that I think when they are reviewed, I’m hoping maybe stick around for the benefit of the way that we operate.

I think one of the things that I really like is the clear, equitable evidence sharing expectations and timelines. So the 10-day requirement, I think that that’s something, for example, that’s really helpful. It certainly speaks to not wanting to delay the process. It moves things along, but it gives everyone a consistent rule to navigate some of those questions. So it’s really meant to prevent students from showing up on the day of the hearing and just saying like, “Here’s something else I want to throw into the mix.” So having those expectations and timelines set, I think is a good practice for sure. The investigative report is another positive. The hearing requirement and the appeals requirements, those are all great things to continue with as practice.

I think one of the things that is really important is the separated and defined roles for each stage of the process, for the investigation, hearing, the appeal. I think before the rules, smaller schools had one person maybe doing multiple roles. There are conflicts of interest there, and you want to make sure that decision makers are able to be really objective in that space. So I think certainly having that clear division of roles and requirements really has pushed institutional commitment to having at least three people participating in these processes in a different way than maybe they had before. I think that that’s a positive change for all of the participants in the process. It benefits respondents and reporting individuals as well. So I think that’s another positive.

Salko: Great. Joe, do you have any thoughts on the positives?

Storch: So I agree with the positives Gemma raised, and it’s nice to have some sense of clarity. Folks like me, and this is not every higher ed attorney, but folks like me enjoy bright line rules, especially for the institutions that we work with which often aren’t deeply resourced so that they can spend months with hundreds of hours of staff time developing tailored policies.

Bright line rules do help many in higher education while it’s important to leave flexibility for those institutions that can do that. I want to make the macro point, however, that we have been discussing, which is even though we can find some things about this that are fine, this was a very challenging experience for our colleagues in higher ed, for the students who will go through this process, and for folks really across the spectrum.

If you look at the letters from nearly every advocacy community, nearly every institution of higher education, they were all really negative toward the proposed rules from across the spectrum. From big, large institutions, ACE or SUNY, or the University of California, to religious institutions, small privates, proprietary institutions. That was still put into place in May where at least in New York – and folks may not remember this so clearly how it was in April and May of 2020 in New York – where we were losing hundreds of our fellow New Yorkers every day, where one of our SUNY hospitals, Downstate Medical Center, became COVID-only from being a general hospital.

Became COVID-only where it was just really, really awful and into that to put 2,033 pages of requirements that had to be implemented in 100 daysfrom the preprint is something that I think will leave a lasting impression on higher education, certainly on the student advocacy community, that won’t go away anytime soon, even as the Biden administration, and I know we’ll talk about it in the future, looks at different things and certainly when they put something out, we’ll be in a different place with COVID. We anticipate it’s going to be a much more normal timeline of implementation. The change for many of our higher education colleagues and certainly for many of our students and folks who are active in this is going to leave a lasting essentially uniformly negative impression that is going to be around for a long time. That has had real impact on higher education colleagues, and it’s really unfortunate. So while we can find some things that we’re OK with, overall the entire process was not one that I think well-served higher education or our students in the long run.

Salko: I think that’s a really, really great point, and I think it’s important for people to remember that as they are looking towards what the next round will be, I’m sure I’m not alone, while we want some changes also saw, like, here we go again, when the Biden administration made that decision to ask for a review. But taking on the idea that the regulations were a challenge to implement just from a very practical point of view, given the compressed timeline and where the United States, and in your case in New York in particular, was in the spring and early to mid-summer of 2020, Gemma, what other things are Title IX professionals hoping will be reviewed and sort of maybe just sit in an area of comfort for them around these regulations?

Rinefierd: I think that certainly the cross-examination again. I can’t emphasize that enough. It’s just so out of the box of what we do in the educational process of the conduct proceedings. It’s just not criminal court and it’s a very criminal court aspect of proceedings. That is just something that we’re not used to. So if someone doesn’t submit to every question, we can’t use what they have presented and that is just something that I think the people that are doing the work in the field, it just makes them feel really uneasy. We want to be able to use information that helps inform decision-making and kind of having to cut out what could potentially be hours and hours of testimony because they don’t answer one question just feels counterintuitive to gathering information, to be neutral bodies that are helping decisions get made in this very difficult space.

So I think that that just is difficult. I think the super legalized process is hard, and not all campuses are used to having advisors active and engaged in the process in the way that they are for some of these. So that’s a challenge. I genuinely feel like the people who are doing this work are just trying so hard to do the right thing and to help the decision-makers in this space have everything that they need to make the most informed decision that they possibly can. It almost feels like they’re stuck between discounting information that they might know or need to use but can’t use as part of their decision-making. It’s just presented a lot of problems, and I’m just not sure that the intent ... I’m not 100% sure what the intent was, but I don’t think that it’s playing out practically in day-to-day hearings as well as maybe they had hoped.

So I think that that piece is something that we’ll continue to want to look at. I think training is really important. I think generally professionals, when we first started out in August, I think there was just a lot of stress around, “Did I do everything right? Did I get everything in? Did I interpret the 2,033 pages in a way that I should have? Is my campus ready?” At the same time again, not to belabor the point, but they were also trying to implement COVID rules on their campus and adjudicating COVID issues and people who weren’t social distancing or so on, complying with COVID expectations. So there was this intense time pressure during a very difficult time to get these implemented, and I so think there is a lot of concern that, “Am I doing enough? Are my folks trained in the way that they needed to be trained? What if we get a case during orientation before Aug. 14th, before we even get started here?” There were just a lot of questions and a lot of stress, and you could see it in their faces on our trainings and you knew that they were trying really hard to do the right thing and wanted to do the right thing and do right by their students in their institution. It’s a hard spot to be in.

Salko: Yeah, and I understand that, and now we’re about eight months into their full-on implementation and you’ve shared a lot of really great insights so far, but do you have any other tips that you can share after you’ve worked with so many schools to put these regulations, the requirements in place and help schools just really get up and running on campus? Do you have anything to share with people?

Rinefierd: Well, I would say ... I don’t want to overstate broadly what we’ve seen in this space because I think it’s incredibly anecdotal. The numbers are really small. It seems like campuses are just not having as many Title IX grievance proceedings. A lot of schools have been doing remote work and there’s a lot more remote. There’s social distancing rules or requirements on campuses. Weekends look different for students. So, I mean, the information that we have is just a sliver, I think, of what we can look to in the future. Next year’s numbers might look really different. But what we’ve tried to do is really think a lot about how we could help facilitate the new requirements under the final rule.

The role of the advisor has really shifted in the process, so this cross-examination requirement is a major component. So one of the things we wanted to do was we created an Advisor Resource Guide, Adam Wolkoff and Abby Mar, who are assistant directors in the Student Conduct Institute, and also Jessica Morak, who is the Office of General Counsel at CUNY, the four of us worked together on an advisor resource guide to really level the playing field for the people who participate as advisors. So we were seeing some students come in with a parent or caregiver as a support person, and then we were seeing other folks come in with experienced Title IX attorneys, and we wanted to provide the information about the process to everybody equally.

It’s also a really practical guide. We include a checklist in there for how to help those advisors keep track of all the things that are happening in the timelines, because they’re very strict now around submission of evidence and witnesses and the like. So we are really proud of that Advisor Resource Guide and our members have been able to utilize that to support their process. But we are trying to think through what things will look like when we have enough hearings that people have experienced to move through the process. So it’ll be interesting to see how that plays out.

Salko: Great. Joe, if you have anything to add, I think that would be helpful.

Storch: Yeah. I think one of the things that we’ve all been talking about at UE and SUNY and many other higher education associations is the training options that have been available. For about 10 years, because remember, as we record this, we’re 10 years and a week out from the April 2011, Dear Colleague letter. The late April 2011 Dear Colleague letter, and many institutions, many of my peers in higher ed felt that they had to spend an enormous amount of their students’ money in order to even keep up with the Joneses on training. One of the things that we saw with the joint guidance that SUNY did along with 20 or so law firms and institutions of higher education that was made available completely for free with some of the webinars at places like UE and NACUA and ACE and APLU, and NACUBO, you name it, was to try to democratize access to this content, that it’s not just for the institutions that can afford to spend tens of thousands of dollars for a day of training.

Because what we recognize at SUNY ... Remember, at SUNY, equity is our mission. That was in the mission statement in 1948, access for students who couldn’t get in to other schools, not because of their grades, but because of who they were. We have bemoaned the fact that most of our institutions could not afford that kind of training, and I’m deeply proud of the role that SUNY has played in being able to raise access to that. Maybe, just maybe, that could be the future of higher education, where we all work together. We try to raise capacity across the board at all our institutions, not just the most wealthy institutions, but at all of our institutions, because every single student at every single institution that takes federal funds or takes Title IV funds is covered by Title IX covered by the Clery Act. But as a sector, higher education, we haven’t acted that way. So what I hope has come out of this in the last year is a future where more institutions will have access to the highest quality content democratized for them so that they can really serve their students better.

Salko: Oh, that’s a really great thought, and I hope we get there. I guess maybe in that way, many schools being fully or partially or mostly remote this past year has done a little bit to take us in that direction, and hopefully that momentum will continue.

Speaking of being in a remote environment, as you did, Gemma, I know that as you said, there are not that many Title IX reports necessarily that are coming through, but that has meant that the few that have happened have primarily, I would assume, been in the remote environment. What has that meant for institutions that you’ve been working with?

Rinefierd: Yeah. So I think that what we’re hearing from our campuses is that the virtual hearings are working, that they actually like them and some of them prefer them. They don’t think they’ll go back to having the live in-person hearings, rather just the live hearings digitally. So it’s, I think, largely due to the advancements that have been made in some of the technology that we use to facilitate the hearing. So being able to have breakout rooms, being able to kind of manage and negotiate those, has been a benefit to a number of our campuses. So I am hearing some campuses saying the virtual environment works well for these cases. It kind of drops the temperature down a little bit. People can move through the hearing in an environment that’s comfortable to them.

We’ve had big advancements in the way that we facilitate sharing documents and just feeling like the way that these have played out have been ... as far as the technology, has been fine and people are preferring it. So I think that’s something that’s really interesting that’s come out of this COVID experience that we’ve all had. So, yeah, I think people are just more comfortable with it and it also meets the requirement of being able to ... in the final rule, everyone must be able to see and hear all of the participants in the process fully, and so that also allows for that in a less confrontational way when it’s digitally and people can adjust their computer settings as they would like. As long as the capability exists for them to be able to see and hear everyone, they can make their own choices in that space. So, yeah, I think that’s something that’s been really positive.

Salko: Oh, that’s interesting. Let’s look now to the future and talk to Joe a little bit about what will happen now that the Biden administration in March issued an executive order requiring that there be an education environment free from discrimination based on sex, which now includes sexual orientation and gender identity, and the Department of Education letter that came out in early April stating that a review would be forthcoming. Can you talk a little bit about that letter and then also what you see as the future of these Title IX regulations?

Storch: Sure. The fact that that letter came out was a surprise to literally no one. We were expecting it and there wasn’t that much there in terms of concrete details. The department is going to undergo a information-gathering process, which they are in the middle of now. They are also going to hold a public hearing and that’s going to be over a number of days. It appears to me from my work that it’s a very sober, very professional review. So we don’t expect it to take a minute. We expect it to be done in a professional way, and that’s going to take time.

That’s going to be frustrating to many people who were really hoping that the Department of Education would select all, delete, save, and issue some interim guidance. That’s possible. Of course, I don’t have a crystal ball, but that does not appear to be the direction they’re going.

What appears to be the direction they’re going is gathering information to be able to amend and fix things that they don’t like about the Title IX regulations that came out in 2020. Some folks will love that, some folks will hate that. I imagine that there will be a significant preamble on both the proposed and the final regulations. I think my hope, from the cheap seats where I am in upstate New York, is that the administration concentrates on getting this right once and for all.

We have all worked under the same FERPA regulations that have been around for most of the lives of most of the professionals on college campuses without significant changes. For Title IX over the last 10 years, we have really seen a pendulum swing pretty wildly back and forth. My hope is that long-term, we don’t get into a pattern like the National Labor Relations Act, where a Democratic administration is going to be this and the Republican administration is going to be that.

We don’t want “red” Title IX and “blue” Title IX because that seriously does not serve our students who don’t know what to expect. They are not in the weeds the way many of us are, and so having something that could last for 20 years, 30 years, will be deeply important to the shared mission of having students understand what their rights are to having our faculty and staff understand what the process is, and how to do a process that is equitable, that is legal, that is cutting edge in terms of the approach and something that could really last for ages. So we’re really interested to see what the administration [releases], but from what I can tell, we are not going to see something coming out next week with an implementation date sometime this summer. It appears to be a much more detailed, much more sober professional process and something to watch.

Salko: Great. Let me just ask, I think that’s really important. Any information on the Q&A that they teased in that letter?

Storch: I do not have any inside information on the Q&A that they teased. I have some guesses on some of the things that they are going to talk about. Gemma has talked about the not answering a single question, potentially removing all statements. That is beyond what we see in the criminal justice process. I can see them changing that and that’s really just sub-regulatory guidance, so I think that’s an easy thing. I think there are some of the blog posts that came out towards the end of the prior administration, that the Department of Education may walk back and they may try to shoehorn in some more equitable processes within what they’re given, within the hand that they’re dealt by the Title IX final rule, but I certainly don’t have any inside information. I think they are acting very professionally and playing it close to the vest without leaks or trying to make this an overly politicized process. It appears to me to be a very professionally conducted process from where I sit.

Salko: Great, thank you very much. Well, with that, as I said, we are running up against time. So I think we’ll leave it there. I do want to thank you, Gemma and Joe, very much for both your time and sharing your expertise and the experience that you’ve had with regard to putting these Title IX rules into place. Like I said, there’s much more we can talk about, but before we leave, where can listeners find out more information about the resources that SCI and the ARRIVE Center have, Joe?

Storch: Sure. suny.edu/arrive is the overall center page, which will have access to the visa and immigration resource and Spark and Rapid, and all of our resources and sci.suny.edu will bring you directly to the Student Conduct Institute website, where you could see the blog and all of the legal information that is there.

Salko: Wonderful. Thank you very much. And thank you, Joe and Gemma, for being with us.

Rinefierd: Thank you so much, Heather. This has been a pleasure.

Storch: Thanks, Heather. It’s been great.

Host: From United Educators Insurance, this is the Prevention and Protection podcast. For additional episodes or more resources on Title IX and other topics, visit our website, www.edurisksolutions.org.