Education

Iowa universities evolving with shifting sexual violence edicts

Colleges aim to balance student concerns

Regulations proposed by Education Secretary Betsy DeVos would limit university and college liability for investigating sexual misconduct claims and increase defendant rights. (Bloomberg)
Regulations proposed by Education Secretary Betsy DeVos would limit university and college liability for investigating sexual misconduct claims and increase defendant rights. (Bloomberg)

In the early morning hours of an October Sunday in 2007, a University of Iowa female student-athlete was sexually assaulted at Hillcrest residence hall. Her attackers were two football players, who later would plead guilty to varying degrees of assault.

UI officials learned of the incident a day later but were accused of failing in their response.

The fallout prompted the Board of Regents to hire an outside law firm to investigate, and that special counsel’s report recommended — among other things — the creation of a single, coordinated office to handle sexual assault-related reports and issues on campus.

That decree produced an interim coordinator position that was institutionalized a year later and codified in 2011, continuing today under a model and mission mirroring its origins — to address “the enormous and high-stakes challenge of responding promptly, effectively and equitably to sexual misconduct” amid constantly shifting social pressures and regulatory edicts.

Iowa’s other public universities have similar posts and offices tasked with addressing campus safety, climate and behavior while upholding victim and suspect rights in conjunction with ever-evolving guidance and rules.

And those rules are changing again under the Trump administration’s Education Secretary Betsy DeVos.

“We have a team that is meeting to review the draft regulations to clarify with each other to see what each regulation means,” UI Sexual Response Misconduct Coordinator Monique DiCarlo told The Gazette, noting she has both preliminary concerns and complements for the regulatory proposal.

“But we are waiting for the final regs to be issued” before making related changes, DiCarlo said.

The university could amend its sexual misconduct response policies and procedures on its own.

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“Annually, we are looking at policies and procedures for something that needs to be tweaked based on our experience and based on case law,” DiCarlo said.

‘I’m worried’

The proposed DeVos regulations offer something new. They’ll be the first of their kind mandating college and university campuses address sexual misconduct in a particular way — beyond federal recommendations or guidance.

“I’m grateful that we will have regulations because I think guidance leaves room for interpretation,” DiCarlo said.

As the issue of collegiate sexual violence began to attract more attention and alarm years ago, then-President Barack Obama introduced new non-binding guidance for how schools should comply with Title IX, a 1972 law barring sex discrimination on federally-supported campuses.

Backers said the guidance did more to hold colleges and universities accountable, allowing them to use a lower standard of proof in adjudicating cases and employ a broader definition of sexual harassment.

But critics said it leaned too heavily toward victims — depraving the accused of their rights. DeVos rescinded the Obama guidance last year before unveiling new regulations last month.

The rules — which must endure a 60-day public comment period — limit college and university liability for investigating sexual misconduct claims and increase defendant rights, even giving them the ability to cross-examine accusers.

Schools, according to the new rules, only would be responsible for investigating formal complaints that occurred on campus or under its jurisdiction.

And they would be allowed to use a higher “clear and convincing” evidence standard in assigning misconduct, a change from the Obama-era “preponderance of evidence” standard.

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The UI doesn’t plan to change its “preponderance of evidence” standard — even if the new rules allow it, according to DiCarlo. She also supports a DeVos change giving universities more time to investigate, noting, “It’s hard to do a thorough job in 60 days.”

But she has concerns with the rules involving live hearings. Under the DeVos proposal, accusers and those they accuse must be allowed to cross-examine each other through an adviser or attorney.

Both sides must have equal access to all the evidence that school investigators use, and both sides must have a chance to appeal.

The current UI process allows for a hearing and written questions from both sides. But DiCarlo said the suggested changes “signal a very enormous legalization of the process.

“And that’s not what we’re set up to do,” DiCarlo said.

She is concerned cross-examination risks re-traumatizing victims, and the dual evidence access could compel collection and disclosure of irrelevant information — such as a person’s past relationships or substance abuse behavior.

“I’m worried people will be hesitant to come forward and ask for help,” she said.

‘Ahead of the game’

Shortly after DeVos rescinded the Obama guidance last year, Iowa State University, in February 2018, updated its policies and procedures. Those changes — which addressed courtroom allegations of ISU shortcomings — were not directly tied to the DeVos move, according to Assistant Vice President for Diversity and Inclusion and Equal Opportunity Margo Foreman.

So when DeVos unveiled the overhaul last month, Iowa State was “ahead of the game,” Foreman said.

Now Iowa State’s policy acknowledges both accusers and the accused are entitled to information on resources, allegations and the status of a case or investigation. Both are entitled to participate in the disciplinary process and know the results of their case.

‘Whose side are you on?’

ISU sophomore Jack Nichols, 19, told The Gazette he believes the university fell down in its response to his concerns after he reported sexual assault-related harassment earlier this fall.

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He was at a fraternity party over Halloween weekend and spotted a girl from high school. He never connected with her that night but within 48 hours learned he had been blacklisted from the Greek houses after the young woman told someone Nichols had sexually assaulted her in high school, he said.

Nichols denies having ever had intimate contact with the woman, but the rumor spread online.

“My concern was my social reputation,” he said, noting the potential impact on his academic pursuits, as well. “The last few months here I’ve gone to a few events with the dean of the Liberal Arts and Sciences College as a guest student speaker . And now all of the sudden I’m a rapist.”

Nichols reached out to his accuser, warning of his plans to report her claims as harassment to administrators and potentially file a lawsuit.

According to communication provided to The Gazette, she responded, “What can we do to not take legal action about this?”

Nichols contacted Iowa State’s Office of Equal Opportunity and made an initial report — although he later learned it wasn’t formal. The office reached out to the woman, and then a second time weeks later at his urging. She did not respond, nor did she respond to questions from The Gazette.

In his discussions with administrators, Nichols said, he sensed they didn’t believe him.

An administrator told him, “‘This is a weird situation,’” Nichols recalled. “‘Usually it happens the other way around where a girl will report a guy raping her.’”

When Nichols asked more about the process and the potential punishment, he learned the repercussions would be relatively mild — in that her behavior wasn’t continuing and repetitive, and the university couldn’t nail down who actually spread the story.

And at one point, according to Nichols, the school warned the woman could flip the script on him.

“The administrator I was talking to, she said, ‘If she was a smart girl, she would claim the assault happened but that she didn’t want to pursue it any further,’” Nichols said. “I almost had to take a double take when she said that. I was like, ‘Whose side are you on?’”

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Assistant Vice President Foreman, when asked by The Gazette about Nichols’ situation, acknowledged her office had to be forthcoming.

“If the person who he says is harassing him were to come in to the office and then say that this thing is actually true, it was not a rumor, it was not a lie, but it actually happened, we did let him know that he may be involved in an investigation himself,” Foreman said.

“I don’t think any of that new

s was comfortable,” she said. “But it was openhanded. We had to be very openhanded with all the possibilities.”

Foreman disagreed that ISU’s sanctions are inadequate, and boasted of what she sees as a fair approach — despite the daunting challenge of creating an equitable and clear process for handling often murky issues replete with he-said-she-said allegations; limited witnesses and evidence; and counter-complaints of lying or harassment.

Nichols is calling on Iowa State to change its process and practice to further eliminate bias and perhaps strengthen penalties. But Iowa State, as with UI and University of Northern Iowa, is waiting until the DeVos rules are adopted.

l Comments: (319) 339-3158; vanessa.miller@thegazette.com

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