After the initial assessment and if a formal complaint has been made, the next step is to determine if the case of sexual misconduct or violence meets the Title IX regulations. If he meets the regulations, the case follows Process A, in which the defendant can be fired or suspended if he is found guilty of a policy violation. If not, the case follows process B.
However, a case that does not meet Title IX regulations still has the ability to pursue Process A, if sanctions can still result in suspension or expulsion, in accordance with the Off-Campus Conduct Policy.
In 2020, the Trump administration and former Education Secretary Betsy DeVos issued new changes to Title IX on how schools handle sexual assault and harassment. Administration policy makers felt that many schools did not respond adequately to reports of sexual assault and harassment and claimed that the new policy was intended to protect all students – including those falsely accused.
These changes sparked outrage across the country, with the opposition claiming that Law IX had failed to protect the group it was supposed to help: the survivors.
The first concern noted by the opposition was the change in the definition of sexual harassment. Under the 2011 definition, sexual harassment is broadly defined as “unwelcome behavior of a sexual nature”. However, the new policy reversed a much narrower definition, indicating that such harassment is now defined as “unwelcome behavior that a reasonable person would define as being so severe, pervasive, and objectively offensive as to deny the person access to a school program or activity educational.”
Other concerns included the new requirement to question witnesses during hearings. In an opinion piece, two University of Michigan professors and a doctoral student called cross-tests irresponsible because research has shown them to be a poor measure of truth when evaluating cases.
Now, President Joe Biden’s administration is dismantling and rewriting the policies set by the Trump administration and DeVos, with a focus on removing barriers to confronting sexual harassment and encouraging students to apply.
The Department of Education plans to release the proposed rule changes in May 2022.
Lilly, a UI graduate student involved in Process A and a subset of it called the Adaptive Solution Process, described the reporting process as draining and frustrating.
When Lily thought she was being stalked by a co-worker, she first went to the ombudsman’s office and was directed to Title IX and the Equity Unit.
Lilly said she felt overwhelmed by the process during her first meeting with Title IX and the Gender Unit, where reporting options were discussed. She decided to file a formal complaint that would follow Process A, though, because she felt that was the only way to solve the problem.
“I felt like if I wanted anything else to happen, I needed to go through this whole painful process,” Lily said. “But I didn’t really realize it, it was so much at a really difficult time.”
After filing the formal complaint, Lilly said she met with the investigator to recount the experience and provide the names of people who witnessed the behavior.
Before getting to the live listening section of the investigation, Lilly said the investigator encouraged her to switch to the adaptive resolution process. She said she was told the process would be faster, less involved than process A, and give her options for the solutions she was looking for.
“They said one option would be ‘we can ask this person for help,’ and I was like that sounds great because that’s the [they need]And that’s what I thought would help solve this problem in the future,” Lilly said. “But that didn’t happen in the end.”
Lilly added that she felt motivated to try the process.
“I just got a little sense that they didn’t want anything more serious about the reporting process to happen,” Lilly said. “It looked like they wanted it to disappear more quickly.”
The goal of the Adaptive Resolution process, DiCarlo said, is not to discover whether a Title IX policy has been violated, but instead to remedy the damage. Both parties must agree to the process, and a successful, adaptable decision occurs when both parties reach a voluntary written agreement. Shared decisions include going to educational programs and mental health counseling, DiCarlo said.
After deciding to engage in the adaptive decision, Lilly said a negotiator from the office called her to formulate a decision on the damage caused and what she wanted. Lilly, a negotiator and advocate with the Rape Victims Advocacy Program, met weekly to work on the resolution, which took about a month to complete.
In the decision, the respondent was asked to attend mental health programs and get out of extracurricular activities in which he and Lilly had participated.
Since both parties must reach a voluntary written agreement, the defendant has the opportunity to negotiate the terms set by the plaintiff. Lilly said the defendant initially rejected the terms.
During the negotiation phase, the negotiator meets separately with the defendant and complainant to determine what each party wants. Lilly said the negotiator will only communicate what the defendant will or may not agree to, and they will have to redraft the decision until both parties agree to the terms.
Lilly said negotiations lasted five months before she finally signed the agreement. The decision determined that the respondent would opt out of only one of the extracurricular activities, and that they did not agree to enroll in any mental health programs.
In the end, Lily said she felt defeated.
“It looked like he got a lot of stuff, and I didn’t get any of it, and that wasn’t the point,” she said. “The goal was for it to be done in a way that he could get help and stuff, but it just didn’t happen that way.”
Lilly said she didn’t have much hope that the process would begin, and wished it had been more transparent.
“I would have liked more transparency about what was possible under the adaptive decision process, so instead of my promise we could do it, or request [the respondent] To do that, nothing like that happened,” Lily said. “I wanted them to be more realistic about what happens at the end of the process, because I had my hopes up.”