Higher education lawyers and college administrators in Illinois say there are important discrepancies that need clarifying between Illinois law and newly proposed federal rules on how colleges should handle sexual misconduct allegations.
The federal rules proposed earlier this month would limit the cases schools must investigate, narrow the definition of sexual harassment, and provide more due process for the accused. This has left college administrators in Illinois wondering how they would comply with a state law that lays out different rules.
“It's pretty clear what the agenda of the [U.S.] Department of Education is in ensuring rights of accused students,” said Tim Love, associate dean of students at Loyola University Chicago. Sexual assault survivors and advocates criticize the proposed federal rules, saying they would re-traumatize victims. “I just think it's going to lead to some areas of tension ... between the elements of Illinois’ approach.”
Illinois is one of a few states with a law addressing how schools should respond to sexual misconduct complaints, joining California and New York.
Illinois law requires all higher education institutions to adopt a policy for handling sexual misconduct complaints. It must include a definition of consent and specific conflict resolution procedures. Schools must provide notification to both sides when sexual misconduct is reported and provide interim protective measures to the accuser. They must also include an amnesty provision that protects accusers from punishment for other violations, like underage drinking, when they report a complaint.
One major inconsistency between Illinois law and the proposed rule centers around cross-examination. Under the proposed federal rules, colleges must provide a live hearing where the accused and accuser can ask each other questions through an advisor or lawyer. Illinois prohibits such cross-examination.
“You can see that the Illinois law is maybe taking an approach that’s trying to be more protective toward a survivor of sexual violence and not wanting to put them in the position of having to confront [the accused] in person,” said Julie Miceli, a managing partner at Husch Blackwell and a former deputy general counsel in the U.S. Department of Education under President Barack Obama. “The federal rule is taking more [of an] approach of wanting to ensure there’s adequate due process being provided to the respondent so that they can confront the accused and visa versa.”
Miceli said she believes these inconsistencies can be clarified during the 60-day public comment period required before rules become final.
There are other inconsistencies between state law and the proposed federal regulations.
Currently, Illinois universities are required to investigate complaints of sexual misconduct “regardless of where the incident of sexual violence, domestic violence, dating violence or stalking occurred.” The proposed regulations only require schools to investigate complaints that occured in the school’s own program or activity and if the institution owned or managed the property.
Under proposed federal rules, schools may choose a standard of evidence to use during investigations. That’s a change from the Obama-era guidelines that called for using a “preponderance of evidence” standard, which asks whether it’s more likely than unlikely that the accusation is true. Illinois law requires schools to use that standard for sexual misconduct cases.
But the proposed regulations say schools may choose to use a higher standard. And whatever standard is used, it must be applied consistently to all student conduct cases, as well as issues with faculty and staff. Love said applying preponderance of evidence to all cases for faculty and students goes beyond the scope of the 2015 state law.
Higher education lawyers expect universities to raise some of these questions during the the 60-day public comment period, which had not started as of Nov. 20.
The Illinois Attorney General’s Office said it’s conducting an analysis to see if and how the proposed federal rules affect Illinois law.
Miceli counts as the biggest change a proposal to eliminate the single investigator model many Illinois colleges have adopted. In that case, one person investigates and determines an outcome with a chance for appeal. There is no hearing. Tim Love said that’s what Loyola University Chicago currently uses.
“Unfortunately” under the proposed federal rules, he said, “it's starting to look a lot more like a mini-court hearing and that's something universities have been trying to avoid.”