Jill Creighton:     Welcome to Season Two of the ASCA Viewpoints Podcast, the podcast where we talk about the student conduct profession in higher education. I am Jill Creighton, your Viewpoints host.

Jill Creighton:     Thanks for waiting on us, listeners, to get you this very special edition of the ASCA Viewpoints Podcast. Today we're welcoming special guests Jill Dunlap from NASPA as well as Teri Lyn Hinds from NASPA to talk to us about the new proposed Title IX regulations. I apologize for the delay in getting you the episode. I think I've just apologized for the last three or four episodes now. So again, I really just appreciate you bearing with us.

Jill Creighton:     A couple of things to note in this episode, first is just a personal thing. For those of you who I have not met in person, or for those of you who know me, I got braces a couple of months ago. I'm now an adult with braces, and it's been an interesting thing to navigate from a speech perspective, so you may hear my speech patterns change or a new kind of way of pronouncing things that might sound odd to you or inconsistent with previous episodes, so I appreciate you bearing with what has now turned into a little bit of a lisp, and I'm hoping that that is not a permanent fixture in my speech pattern, but who knows. In any case, we're going to go through some of the details of the regulations I this episode, we're going to talk about how you can comment in the 60 days, because we are now amidst the 60-day window, and before the episode I've got our bios of our speakers here.

Jill Creighton:     So we have again Dr. Jill Dunlap, and she is the director of research and practice at NASPA, Student Affairs Administrators in Higher Education based in Washington DC. Prior to joining NASPA Jill worked closely with college student survivors of interpersonal violence in a professional capacity for more than 14 years at three different campuses. In 2014 Jill served as a non-federal negotiator representing four-year public institutions on the Violence Against Women Negotiated Rule making Committee. In 2016 Jill was invited to serve as a program reviewer for the Center for Disease Control, National Center for Injury Prevention and Controls Research Grants for preventing violence and violence-related injury. Jill is currently an adjunct political science instructor at Saint Xavier University in Chicago. She completed her PhD in political science and public administration at Northern Illinois University where her dissertation work focused on the experiences of students impacted by sexual violence on campus. Her research can also be found in the 2016 book, Preventing Sexual Violence on Campus: Challenging Traditional Approaches Through Program Innovation. Jill recently returned from Bogota, Colombia where she taught a summer course on gender-based violence from an international perspective as an invited scholar at La Salle University.

Jill Creighton:     Our second speaker today is Teri Lyn Hinds. Teri is the director of policy research and advocacy with NASPA, Student Affairs Administrators in Higher Education. With over a decade of experience in higher education policy analysis, institutional research, assessment and planning, Teri has a comprehensive view of effective and appropriate data use for the support of student success from campus to capitol hill. Since joining NASPA in February 2017, her policy portfolio has expanded to include a variety of issues salient to student affairs professionals including college costs and affordability, campus sexual assault prevention and response, free speech, and controversial speakers on campus, campus carry of firearms, and more. Previously as the director of research and data policy for the Association of Public Land grant Universities, or APLU, Teri worked primarily in institutional accountability and transparency as a project manager for the voluntary system of accountability and student achievement measure initiatives. Her prior work in institutional research, assessment, and strategic planning on two regional comprehensive campuses in the upper Midwest has been an invaluable foundation to the role she plays in Washington DC. Teri holds a bachelor's degree in government from Cornell University and a masters degree in social service administration with a concentration in health administration and policy from the University of Chicago.

Jill Creighton:     I hope you enjoy our conversation.

Jill Creighton:     Welcome to the podcast, Jill Dunlap and Teri Lyn Hinds, both from the NASPA office staff. Today we've got Teri, who is the director of policy research and advocacy, and Jill, who is the director of research and practice. Welcome!

Jill Dunlap:        Thank you.

Teri Lyn Hinds:     Thanks!

Jill Creighton:     We always love to get started by talking about your journey into your current role, and I'm really excited to talk with you as staff members of a professional org rather than campus-based professionals, because it's a bit different in terms of your lens on the profession and all of that, but I was hoping you can tell us how you got to your current roles. Why don't we start with Jill.

Jill Dunlap:        Sure! Thanks so much for having us. I came to NASPA by way of campuses, so I started in professional capacity working in student affairs about 14, almost 15 years ago now, so I've worked at three different campuses primarily in the role of equity inclusion, but also working specifically with violence prevention, so at each of those three campuses I wrote and managed office on violence against women grants through the department of Justice, and then providing direct services to students who have been impacted by sexual assault, dating violence, domestic violence, and stalking. So I have a pretty significant background in working with individuals who have been impacted by violence. I was really fortunate to have been part of the 2014 valid negotiated rule making committee, so that sort of, I think brought me and my experience to the national level a little bit, and then the position at NASPA opened up and I just saw it as a really great opportunity to expand what I was doing and had always done at the campus level to working with campuses across the country and working on these issue at the national level. So that's how I came to my role at NASPA.

Jill Creighton:     Excellent. And how about yourself, Teri?

Teri Lyn Hinds:     I actually also come from campuses, but not from a student affairs background. I worked in institutional research and assessment while at a couple of campuses in the upper Midwest, so regional comprehensives both public institutions. My master's degree though, is in social service administration which is also social work, so the sort of social justice, the program evaluation of the policy implications for how public policy affects actual people on the ground is something that has always been part of what I consider core function of my job, even when I was doing institutional research, which most people wouldn't necessarily connect. I came into NASPA following working at the Association of Public and Land-grant Universities. I was there for about five and a half years, primarily focused on data policy, makes sense from the institutional research and assessment start that I had, but was really looking at the time to do more direct policy work that related to students on campus and student success, focusing on the broad set of issues. Also recognizing that the national conversation that we had going on at the time around college and the value of college and the need to close equity gaps between historically under-represented populations and majority populations, and really trying to find a place that would allow me to do a little bit more proactive work on that.

Teri Lyn Hinds:     The position at NASPA came open, and here I am. So I'm very fortunate to be able to get to do work that I care about deeply on a daily basis for NASPA.

Jill Creighton:     Both of you have what I would say pretty fancy titles. Can you tell us a little bit about what it actually means to be the director of research and practice, and what it means to be the director of public research and advocacy?

Jill Dunlap:        Sure, I can start. Actually my role at NASPA is a new one within the past year, so director for research and practice, and I'm really excited about taking on that new role because I think that I will be able to help the association in formulating multi-pronged and multi-year research agenda around a lot of the issues that Teri was talking about, and just sort of assessing what it is that our members need more data around, and how do we collect that data for them, and then translate that into practice that helps all of us become better student affairs professionals. In regard to some of the current things that we have on the table, we're currently working on an IRB-approved project to look respondent services across the United States in terms of which campuses are providing respondent services and how that impacts the current Title IX regulations and the focus on due process and what campuses are already doing on that front. So we're really excited about that. We're just getting ready to kick that survey and that study off, and so we'll have results hopefully within the next few months that we can share with practitioners around the country, and it will also help, I think, inform the policy work that we do at the national level.

Jill Dunlap:        We have a wide variety of things that we work on, especially with some other national partners in terms of data that that we collect and that we then translate into usable research for our members, but that is just something I think that might be of specific interest for this particular topic.

Jill Creighton:     Excellent! We asked you both to be on the show today to talk about the proposed Title IX regulations. It was a nice little surprise Thanksgiving gift from the US Department of Education for those of us down in the US. I know that the document is just so thick. I know I've sat with it and it's a lot to digest. So I'm hoping that our conversation today can be more relevant than going word by word through the technical guidance but also kind of highlighting the things that are really unique or things that might be massive shifts for our campuses, and really what I'm most excited to talk about is how campuses or individuals or organizations can participate in the negotiated rulemaking process going forward.

Jill Creighton:     Why don't we start with any highlights that are in your minds about what is really different from the '14 proposed guidance and the '18 proposed guidance.

Teri Lyn Hinds:     Sure. I will start with that because Jill is going to have a lot more detail and a lot more, she'll be able to speak to more of the direct impact on college campuses and particular Title IX and conduct officers, but I think generally the tone of the proposed rule is very prescriptive. It sort of sets up an expectation for our college campuses that I don't think is necessarily appropriate for student conduct proceedings, so we're concerned about that, and we're concerned about just that overall feeling going into the whole proposed rule, that it feels as though there's a very definite focus from the Department of Education that campus conduct proceedings when it comes to sexual assault and sexual harassment will be similar to courts of law, and that's never been really something that our college campuses, it's not a standard that we should be held to or that we have been held to, so we're paying attention to that, and to the possible implications that that has, and that's a general comment not related to any of the specifics that are included in the rule.

Teri Lyn Hinds:     Other than that there's some nods the department tries to sort of say "We're making it better for campuses," we're not entirely sure that that's true. There's several sort of safe harbor provisions but those, we think are really rather than safe harbor and protections for institutions they're really going to open our institutions up for liability and our individual practitioners as well. So we're concerned about the way things are phrased, there's a little bit of potential, I would hesitate to say duplicity, but perhaps things aren't as clear as they want it to seem in the language that is used in ruling. So that's my general framing comments, and Jill as I said is going to have a lot more detail on that.

Jill Dunlap:        Sure. I think I might just add that I agree with everything Teri said in terms of it being really prescriptive in certain area, and then there are some areas that they sort of opened the door to and then really didn't provide a lot of substantive information. So in particular around informal adjudication proceedings, and while some may hail that as being something that many survivors, even in my own experience, would be really excited about because it doesn't necessarily lead them down only one path towards an adversarial adjudication process, there's not really any safeguards there for how to do that appropriately or what sort of training might be needed, and so we're really overly prescriptive in some areas and then in some other areas it's just sort of left to campuses to guess about what that might look like. Which I think could lead to some misguided assumptions about how to do that best without any specific training.

Jill Dunlap:        And so I also think the other thing for me, just having done this for so long and worked with so many really great professionals that do this every day on campus it that there's a misunderstanding I think of what's actually happening on campus, and the sort of tone of a lot of the regulations are that campuses aren't doing right by accused students. And I just don't think that that has always been the case. Are there exceptions on either side where campuses may have mistreated a survivor or mistreated a respondent in a case? Absolutely, and we've seen those blow up in the headlines, but I think that the underlying assumption that campuses are coming at this with a victim-centered or an unfair or biased approach is really a misunderstanding of the really great training that a lot of our members and student affairs professionals around the country have undergone in the last few years to really try to get these cases right.

Jill Creighton:     I completely resonate with your last comment there Jill. And I know listeners, this might be a little confusing with me, Jill as your host, and Jill Dunlap as one of our guests, so just know that we're probably not talking about ourselves in the third person ever today. But the comment you made about campuses have been doing this well for a long time is a public comment that ASCA entered into the public record during the open US Department of Education hearings last October, and that just feels like so long ago, and I'm also not necessarily seeing the fruit of those public comments demonstrated in the proposed guidance, but the statement I think that you made about some areas are really prescriptive and some areas are really loose I think is also quite concerning. And one of the examples that I'll give in terms of being highly prescriptive is the introduction of the potential for literal cross examination, so direct questioning by one party to another, but instead of being one party to another it's party A's advisor to party B, and party B's advisor to party A. What do you make of being that granular in this type of guidance?

Jill Dunlap:        Teri, you want to tackle that one?

Teri Lyn Hinds:     Yeah. I can start with it, but I'm going to talk about the general sort of approach of that level of prescriptiveness and guidance. I think I'll leave aside for now the question of cross examination in these types of cases just as a general rule, because I think that that is not generally a practice that we would support. But that level of administrative specificity in regulations like this is really unusual and it's generally something that NASPA as an association, and I think many of the associations in DC that represent higher education try to steer away from, try to steer executive agencies and congress away from because it really doesn't recognize and doesn't value the diversity of campus contacts. So we have a ton, just think about degree-granting institutions in the country, there's 3500 plus degree-granting institutions. They all exist in communities that all have their own specific context and culture, and so to try to be that specific about this is the way that everyone must do it really means that we're going to get it wrong more often than we're going to get it right. So allowing for flexibility, allowing for campuses to make the best decisions and then relying on our regulatory processes and our executive agencies for oversight.

Teri Lyn Hinds:     So when a campus does make a mistake, either intentionally if they're choosing to sweep something under the rug, or accidentally the role of the executive agencies should be to help provide some guidance to get them back on track. So it shouldn't be this very, very prescriptive, you have to do it this way, there is the only one option from the executive agencies, but the executive agencies do have a responsibility for that oversight piece, and that can be a little bit frustrating at times. We want them to be specific enough without them being too specific, but in this case they're very definitely too specific.

Jill Dunlap:        And I might just add, Jill, that I think, again the focus on due process, and I will say that every hearing that I've sat in on allowed for the respondent to ask questions to the hearing convener, or whatever that person's role was defined as under policy, so again this notion that we now are requiring it and in such a specific way, and frankly I think has the potential to harm both parties. So you've created a scenario where I think many respondents who may have felt comfortable going into these types of hearings on their own now may feel like they really need to have legal representation and so then what does that mean for a complainant in these cases, and so I think we're just sort of forcing students down this really terribly more adversarial route than it has been previously and in my mind it's really sort of a hammer in search of a nail, that we are so convinced, the department is so convinced about the lack of due process rights that they are being overly prescriptive for campuses and not recognizing that some of these protections were already in place, and it's going to require a change for some campuses but not all, and I do think that this has the potential, this really adversarial process, to just harm both parties that are participating in it because it's setting out at the outset that this will be that adversarial.

Jill Dunlap:        So I think that in an effort to sort of rush to help respondents in these cases that we've over corrected, and I think it has the potential to really do damage to both parties that are party to this kind of hearing.

Jill Creighton:     Oh, I fully agree that it has the possibility of creating more harm to all parties involved. One of the things that the student conduct profession prides itself on is creating educational environments to resolve all types of misconduct cases, and I'm quite frankly very worried that this is trying to force elements of criminal courts into our campus processes. I also have seen in my career time quite a few survivors who did not want to go in front of a hearing panel, or who did not want to go have their sexual histories exposed in front of strangers, and I totally get that, and respondents not wanting to have anyone else know that this accusation even exists in the world, and so I'm just worried that this live hearing component and these cross examination components are going to have a chilling effect overall on reporting and participation and formal process. So I was hoping I could get your thoughts on that.

Jill Dunlap:        I agree, and I think your point was salient to me that respondents don't often want people to know that they've been accused. So the idea of how many people now have to be involved in this live hearing is just sort of expanding the number of people now on a campus that know, and on smaller campuses in particular you may have hearing board members who are a respondent's professor. So having to worry about that moving forward, and so again I think the news media coverage of this so far has been that survivor advocates and victims' rights groups are the ones that are totally opposed to this, that if I were a respondent I would be equally concerned about some of the things that you just mentioned Jill, and I agree with you that I think we're creating a scenario where not only will survivors or complainants maybe decide not to report because of this adversarial process, but you may frankly have respondents who decide not to participate either because it has gone down this road, and of the number of people that will now be involved in the live hearing process and the burden of feeling like you might need legal representation, so you may see respondents just drop out and transfer to a different school rather than go through this process.

Jill Dunlap:        So I think that there's again the potential for harm for both of the students when we go down this road of creating more criminal justice-like processes on our campus.

Teri Lyn Hinds:     Yeah, I would echo certainly the lack of confidentiality, and privacy is a huge concern. There's just from a broader general higher education records law approach further protects what aspects of a student's educational record can be shared. But in this case there's provisioned in the proposed rule that would not restrict, that either party could discuss what is the evidence that is shared with them is part of a proceeding. I believe that the intent there is so that they can discuss it with their advisor or with an attorney, but there's not a limitation on that. So that opens up some pretty big concerns about retaliation and publication of information, and that's a pretty big red flag for me inside of a campus conduct hearing outside of any of the sort of whether or not it's going to chill peoples' participation, which I absolutely agree with both Jills that it will. I think that we're going to see more respondents and more complainants really not understand what they're getting into if they do agree to go through with the formal process and then get in the middle of it and suddenly be felt like they're trapped. So I'm concerned about that aspect definitely.

Jill Creighton:     Why don't we shift to talking a little bit about the broader lens, which is the definition change, how we define sexual harassment or gender-based discrimination has shifted with the new guidance. The quote I believe is that it adds qualifier that the unwelcome conduct of a sexual nature must be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's educational program or activity, and that addition component is the so severe pervasive and objectively offensive piece. What do you make of the raising of the ceiling?

Jill Dunlap:        You want to start Teri?

Teri Lyn Hinds:     I can, but I think you're probably going to have more history on that particular point. Generally i think that the narrowing of what institutions are required to respond to. So on the face of it there's a lot of people that are going to respond to that and say okay, this is a way for institutions to have some flexibility about executing their own decision-making and there's other language in the rule that says that they're allowed to provide support services to students who choose not to go through the formal process or who report incidents that don't meet that definition, but I think the concern is more about the history of higher education. So going back, certainly not in the last five years, I think we've seen a lot of change in how higher education responds to sexual assault, not just in higher education but in our country as a whole, the Me Too movement has certainly changed the conversation in pretty drastic ways.

Teri Lyn Hinds:     But if you think back to the 90s, the 2000s, even the early 2010s, I think there was sort of this belief that institutions really didn't want to take on these cases. They really didn't want to risk something making a headline or any kind of bad publicity. So I think that that fear is justified, that if we allow institutions that much flexibility in choosing what cases are eligible for formal process and formal resolution it's a concern. I think that most of our campuses at this point, again recognizing the broader change in our cultural conversation, most campuses are going to do it. Their best interest, their first interest is making sure that their students are safe and are able to go through things. So I think that the bad actors shouldn't overrule in this case, but again the department should be acting in that role of oversight and guidance to prevent that action from the bad actors, and I feel like the narrowing of the definition really sort of is them saying "We're not so interested in engaging that oversight rule as much as we maybe should.

Jill Dunlap:        I agree, and I just think in this cultural climate that we exist in in this country it just seems so ... I don't even know, I don't even know the word for it. It just seems so, like we're sticking our head in the sand and ignoring what's happening around us to narrow the definition like this. And I think a lot of what I do as I'm reading through the regulations, honestly Jill, is that I'm thinking about how our colleagues who are student affairs professionals will understand these changes, and how will students understand them. And so for me, the idea that a student may now get the message that, well, you know I could go to class with someone who assaulted me, but now I have to understand the notion of such severe and pervasive misconduct that it is effectively preventing my access to educational programs. I have to understand what educational programs are. I have to exactly who to report this to, and I have to know where it happened.

Jill Dunlap:        So we may get into all of those other individual pieces later but the massive sort of reframing that is going to have to happen on campuses to implement these changes, it sort of is ... How do you uneducate people about what we have come to know as misconduct that is not welcome of a sexual nature that is reportable, and now we're telling students, "Well, that's not actually serious enough to make a report." Or "There's nothing the institution can really do for you here because we're not effectively barring your access to any of our programs." And so for me there's a real danger here in how students will understand this, and if they're just sort of taking away the message that anything goes again and that things aren't worth reporting, or that these processes are so adversarial that why would anyone want to begin to go down the path of engaging with them, there's no determined timeline, so I am really concerned about the chilling effect that these rules will have on campuses and how students will digest all of this new information given that we spent the last five years sort of educating them about how inappropriate misconduct and that sort of thing will be taken seriously by campuses. So what is the impact of all of this on students and how they understand these processes.

Jill Creighton:     Well, and the reality of our campuses is that we've been talking about in ASCA and on our campuses for a while that the compliance components will come out from the fed, that's a floor, not a ceiling. And so when we had the transgender student guidance pulled last year, we were talking all about that doesn't mean we can't add protections for students, and we should, but it is a little scary that the campuses that maybe are not as interested in that protection, or perhaps don't have the resources to apply the investigatory resources to those protections, those are the students and those are the campuses that I really worry about, and also to your point that we've raised a generation of students under one set of expectations because we have to remember that the standard will now be the same in K-12 in terms of the definition most likely, how we shift that entire mindset, how our campus-based advocates who are doing prevention work are changing that and how we are working with our respondent services to understand what this really means.

Jill Creighton:     So I think that there's a lot of scary room for interpretation in some places, and for our campuses to start doing their own things in weird ways, but I also do appreciate that the guidance opens up this ADR component, or alternative dispute resolution component. I think that's something that we've been asking for for a while. We always have followed that '01 guidance about mediation being strictly prohibited, but now that we have campuses experimenting with restorative justice resolutions or other types of alternative or informal resolutions, I'm excited that we are now kind of more permissively expressly allowed to play in that arena in terms of figuring out how we can best hear all parties, but I agree with you that it is concerning that it's not as limiting any longer to be without additional guidance. So what are you thinking that colleges and universities might be doing to introduce these programs thoughtfully?

Jill Dunlap:        That's a great question. I think for me that there again needs to be some sort of, referring back to what you were saying about the floor. That this guidance doesn't really give you that. It just sort of opened the door and then didn't tell you what's through the door. And I agree with you that I think that ADR is an option that campuses have been seeking for a while, and frankly in all of my work with survivors over the years, they were seeking it as well. I can't tell you how many students I had who I sat across from who said "I absolutely will not report to Title IX, I will not report to Student Conduct, I just want them to know that what they did was wrong," and some of the restorative practices absolutely allow for that, and allow not only restoration to the individual who has brought forth a complaint, but also to the community this impacted, I can't tell you how many times it has impacted an entire floor of a residence hall, or a sports team, or all of the things.

Jill Dunlap:        So I think when done correctly and with people who are really trained facilitators, that the alternative dispute resolution options can be really powerful, especially as an educational process that you were talking about earlier, that so much of our misconduct is centered around. So I'm really excited about that possibility, but again I think the sort of lack of guidance around what that looks like also concerns me and I think back to, and again this is prior to the 2011 letter, but I remember going to a campus where when I was first starting my position, the idea was, well anything you hear about you report to a student conduct director and the words literally were, that person will have a talking to with the person who has been accused, and that was their alternative, sort of informal process. And again, like I said that was before the 2011 dear colleague letter, but I think, I worry about us returning to that, and so that's my fear.

Jill Dunlap:        I think that's balanced out by my sincere hope that some of these alternative dispute resolution processes will be done in a really measured way and that campuses will point to those practices and be driven by data on this and what works, and reducing recidivism, and I think there's a whole other conversation that we could have around what the former processes were doing, which is to remove a student from campus who then goes to a different campus and hasn't learned anything, and has just sort of gone through a punitive investigation process and adjudication process. So I think I'm excited about the potential for that, for both respondents and survivors who come forward to participate in those types of processes. I wish there was a little bit more flesh around the bones of what that might look like from the department.

Teri Lyn Hinds:     I was just going to add that I think that the fact that the department has made it optional in this proposed rule, they sort of then remove the cost from implementing a process like that well. So recognizing that the training involved to run an alternative dispute process, to present [inaudible 00:32:41] restorative [inaudible 00:32:41] process well and to really make it that educational experience for the party, those are real costs, and those are not costs that our institutions are shy of paying, but the fact that it's sort of an optional thing that kind of sort of slid into the rule with very little bones around it as Jill had talked about, means that they have also not done their due diligence to sort of say, "This is what this is going to cost for institutions to do," and being honest about that cost and sort of recognizing the cost of this regulation on campuses.

Teri Lyn Hinds:     And the reason that that's important is sort of weedy, but it has to do with the deregulatory regime of the Trump administration and the fact that they're trying to make this case that they're reducing the regulatory burden for college campuses. And I'm not sure that the way that they're doing that is honest, to be completely true. I think that they're playing with the numbers a little bit to make it look like they're reducing regulations when really what they're doing is reducing protections for students.

Jill Creighton:     One of the things in the guidance that gave me a little bit of pause was this idea that I liked, which was that campuses can choose their own standard evidence, whether that be preponderance or clear and convincing, the campus could choose what's best for their community, but at the same time there seemed to be a little bit of a back door angle in that we should theoretically also be applying similar standards and standards of proof to our employee and labor relation side of the house, which is a little confusing to me, and again I'm not an attorney, I'm not an employee labor relations expert, but that was something that really just kind of struck me as slightly odd or potentially concerning that was a small detail that could have a huge impact. What do you make of that?

Teri Lyn Hinds:     I will give the cause of that as well. I am also not an attorney and I am not versed in employment contract details but I do know that that's a false equivalency to say that a student conduct proceeding should be run according to the same criteria or level of rigor that a contract negotiation or a violation of an ethics code in an employment situation. I think that creates a really odd, it's a very strange jump to go from a student conduct process to equate that to what would need to happen in an employment or a grievance process. I also think that it's a situation where many campuses are going to find that their hands are tied on the setting of an evidentiary standard because they may have collective bargaining agreements where a certain evidentiary standard is mandated for one or more group of employees on campus. There's also the possibility, and again I'm not an employment attorney and I'm not involved in HR, but I don't know enough about things like tenure contract and tenure agreements. And so if you've got someone who's under a tenure agreement, who was tenured 20-30 years ago, would you have to go back and renegotiate that with the individual faculty members?

Teri Lyn Hinds:     Again I don't know if that is a level of detail that's included in those agreements, but I think it's a concern that they're making this false equivalency between a student conduct process and the employee grievance process and that they're using that to sort of tie institutions' hands I think.

Jill Dunlap:        I think it's a backdoor way into forcing campuses to use a higher standard of evidence, so I agree with everything Teri said, but also my hunch is that it's rather than sort of taking the controversial route of requiring a higher standard they're just going to do it this way, knowing that doing this way will force many campuses to, unless they want to revise their employment policies, that they will be forced to move to the higher standard that the employment policies currently use.

Teri Lyn Hinds:     And I think that most of the media coverage of this has been people really focusing on, "Oh, they're giving campuses the flexibility," but really they're not. So I think that particular piece of this conversation is one that I would love to see more conversation around in higher education circles, I'd love for campuses to be able to include that in their comments when they submit comments, what would this actually mean for their campus in terms of the employment conversation, just to sort of make it very clear that this one, isn't an appropriate equivalency, but also that they're talking about equating things that could be decades old in how they were made.

Jill Creighton:     Certainly. I agree with you. I feel like by talking a little bit out of both sides of your mouth you get a choice, and also it has to be the same as this other standard that you already use, which is probably clear and convincing for employment law, and again I'm not an employment law expert but I believe that that is a requirement in many states that we do have that clear and convincing component for the employment side.

Jill Creighton:     Teri, you brought up campuses submitting guidance, so why don't we go ahead and transition to talking about ... Or submitting comment rather, transition to how we talk about comment and submission of comment. The negotiated rulemaking process will be new to a lot of professionals, so maybe Jill, can you give an overview of what it means to enter into negotiated rulemaking and how to submit public comment for consideration?

Teri Lyn Hinds:     Sure. I'm actually going to start with a correction, because the federal regulatory process is dense and opaque, but negotiated rulemaking is a process that you are required to convene a board of negotiators, and that process for the specific convening of a board of negotiators is only required for regulations that relate to certain provisions of the higher education act, and Title IX does not fall under those provisions. So even though it's related to the, the sanctions are related to their institution's ability to grant Title IV financial aid, the department is not required to actually convene a negotiating board for this piece of regulation. What they're doing instead is they're going through what's called a notice and comment period. So the department has published the proposed rule in the federal register, it was published on November 29th, so Thursday, and that opened a 60-day public notice and comment period. So any member of the public can now submit comments to any aspect of the rule. It's not limited to institutions, it's not limited by any particular role on campus, individuals can and should submit comments on this rule in addition to their institutional comments if their institutions are submitting comments. Associations will also submit comments. Certainly advocacy groups will submit comments both complainant and respondent advocacy groups, so there's going to be a lot of interest and a lot of comments coming through with this.

Teri Lyn Hinds:     And what that means is, all of those comments are required to be reviewed and responded to by the department. So we want, the comments that are submitted should be substantive. They should be something that, this is why I believe that this piece of this rule would be damaging for students, or this is why I think it would be damaging for institutions, or conversely why I think this is a good piece that should be maintained. So if you want to talk about the maintenance of the alternative dispute resolution you can say something like, "This is a good thing. We want to see this happen, but we also would like to see a little bit more guidance and information provided to how campuses can do it well. The department then is required to respond to all of those comments when they issue the proposed rule, and specifically what they're required to respond to is whether or not they make changes to what they have proposed for the rule in releasing their final rule. Or if they have not decided to make changes that were recommended from comments.

Teri Lyn Hinds:     So it's kind of a weedy process. We do have a document that goes through what the federal regulatory notice and comment period is. I'm happy to share that with you so that you can share that with your listeners, kind of lays out the steps and kind of tries to demystify a little bit what this regulatory process is, because it is a confusing and opaque piece of administrative policy.

Jill Creighton:     Do you think that the department is going to be thoughtful about the comments they receive or perhaps on the other side, just saying, "Oh, we have to go through the 60-day period because it's required, we're not going to make any changes."

Teri Lyn Hinds:     I think that depends on who you ask. I think there's a lot of, the people like me who sort of live and breathe in policy in DC, some folks are really jaded and they think that this is all just for show and that the department is going to kind of do what they want to do no matter what. Others though, sort of like we want to give the trust back we give to our campuses for the good work that we're doing, we also want to give that trust to the administrators that work within the federal government, so the career employees that work there, we really want to make sure we give them credit for wanting to do well and wanting to govern our country well. So I think that it depends a little bit on who you ask. Personally, this is sort of taking aside my NASPA hat and putting it over on the counter. It depends on the day for me. I genuinely believe that there are people within the department who are trying to do what's best for students. I may disagree with them about what that looks like, but I think that they're really trying to produce regulation in government that is going to provide appropriate coverage for institutions, appropriate protections for students, and they're trying to walk that line.

Teri Lyn Hinds:     So I know that there are several pointed questions included in the regulation where the department has really specifically said, "We're looking for public input on this," I would take them at their word at that. I would say yes, if you have an opinion about that, include it in the comment. Because if nothing else, what that means is that they're going to have to respond to why they didn't make a change to that when they issued a final rule. That sort of, the long view of that is that puts them on record of having to explain their reasoning and then if at some point that reasoning is challenged in a court case, then it's in writing, it's documented, and we're not working off of speculation.

Jill Dunlap:        I also think the rules are a really great point where anybody on campus who touches this issue should be involved in helping formulate comments, and I would hope that the people at the helm, the vice presidents and assistant vice presidents that are maybe leading these efforts will really look around campus to see who all does this work and then incorporate their voices. I think campuses have a lot of data that they have access to that would be really useful in making substantive comments around, "This many of our students would request informal processes every time," or "This number of students chose not to engage in a Title IX process because it's adversarial, and so we'll have this many fewer students who report under the more adversarial model." So I just think that there's a lot of really valuable information that campuses have access to that they can utilize when formulating their comments.

Jill Creighton:     What happens after the department has responded to everybody's comment in the process?

Teri Lyn Hinds:     Sure. So after the 60-day comment period is over, there's not a set timeline for how long it will take the department to sort of release their final rule and put out that response to the comments. You can kind of figure maybe a ballpark is somewhere between four to eight months depending on how many comments they get and how detailed they are in terms of providing the responses as well as if they're making changes to the rules, then that requires them to then go through the processes internally of running it by their own council and end up getting feedback from the other agencies that might be involved. So the timeline is a little bit murky, but it's probably not going to be real, real soon just for point of comparison. We also have federal notice and comment periods for gainful employment and the borrower defense for payment rules released this fall. Those comment periods ended at the end of September. We still haven't seen final rules on those. Those rules are much narrower than the Title IX notice proposed rule. This is the first time that we have ever done this notice and comment process for Title IX, so it's going to be a lot more complex to work through some of the proposals and the proposed rules.

Teri Lyn Hinds:     So I think that we're likely to see a longer review period. I don't think it'll be too long though, because I know that they obviously want to get some solid guidance out to campuses and they want to get the rules in place. Once that final rule is released by the department and published in the federal registers they have to give at least 60 days for campuses to implement and to come into compliance with that. I believe they can choose to give a longer implementation period, so if you kind of do the math in the back of your head, or the back of an envelope and figure it all up, really what this means for campuses is we're not going to see a final rule that they're going to have to implement on their campuses probably until early 2020, that's my best guess. And again, a lot of that depends on how long it takes them to do that review of all the comments and response, and then whether or not they give longer than the required 60 days for campuses to do implementation.

Jill Creighton:     And when we think about kind of the interim gap, what advice do you have for campuses in terms of practice?

Teri Lyn Hinds:     Keep doing what you're doing. Because really, legally under the law that's what you're required to be, the guidance that's in place now is the guidance that campuses should be following. I think that if campuses feel like they need to hedge, or they need to start internal processes to potentially come in compliance with an eventual rule I would advise on being really cautious about starting any event now, because things can change between now and the final rule. And even once the final rule is implemented, if there are pieces of it that are challenged in courts and there's a stay of implementation, I think that any changes that you might consider making now would be premature. I mean, really keeping the focus on providing protection for your students, doing the good work that we're doing on our campuses, that's really going to be t best thing that we can do in the interim.

Jill Creighton:     So this is obviously a different process than what we saw happen in 2014, so I'm wondering if you could just briefly describe why this process is happening in this way versus the way the '14 process rolled out.

Teri Lyn Hinds:     Sure. So this is again going into sort of the difference between regulatory guidance and formal regulation and proposed rule. So it's kind of weedy again in that sort of administrative regulation procedures conversation. Up til now, sexual harassment and sexual assault under Title IX has never been a subject to what's called formal regulatory action. So formal regulatory action requires that the government release a proposed action, they open it for public comment, they reply to the public comment, and then they issue a final regulation. That final regulation from a formal notice and comment period process then carries the weight of law. It is binding on institutions, it is an official government interpretation of legislation that has been passed by congress, and that's the role of the executive agencies, is to provide that sort of, what does this mean in day to day terms for the people that are subject to this law? How are they supposed to comply with it? Previously, so up until now what's been done to interpret Title IX for campuses is considered sub regulatory guidelines.

Teri Lyn Hinds:     So dear colleague letters, Q&A documents, interim guidance, whatever you choose to call it, that's all sub regulatory guidance, and technically it's interpretation that really isn't quite have the full force of law. It's certainly the best thing that campuses can do, it's the best guidance that they should follow, but it's not as formal, it's not as settled as a full notice and comment period. So I think that the reason the Trump administration and Secretary DeVos are really moving forward to do formal guidance on this is one, because we don't have it and this will answer, give some finality, give some permanence to the regulations. These are regulations that in order to be changed once this rule goes into place, they have to then go back through this process, this formal notice and comment period process in order to make changes to the regulation. With sub regulatory guidance, as we saw Secretary DeVos do last year, you can just decide that you don't want whatever was done by a previous administration to apply anymore and change the rules. So that permanence and that sort of substantial nature of a formal regulation I think is why we're seeing that come through.

Teri Lyn Hinds:     The motives as to why they want to do that now, why that wasn't done previously, I'll leave that to people to speculate about, but that's the difference between what happened before and what this process is.

Teri Lyn Hinds:     Jill, you want to jump in and add anything, feel free.

Jill Dunlap:        No, you've covered it really well. I have nothing to add there.

Jill Creighton:     That's really helpful. I think for those of us who don't touch the federal policy process a lot anyway, I think that's really, really helpful.

Jill Creighton:     As we wrap up our hour today is there anything else that you think that practitioners should know right now?

Jill Dunlap:        I think I might just say that, I think it's really important to keep communicating with students, that they're hearing a lot about this in various forms and not everything they are hearing may be true, and so we're the front facing people that work to support students, and so I think letting them know what the institution is doing and maybe involving student voices and drafting comments might be helpful. I think keeping those lines of communication open so that students don't feel like they're in the dark about what's happening, because this is a reality for students that are impacted by this issue every day. So I think that's my main concern, is making sure that we are reassuring students that were looking at these comments and that our goal is to ensure fair processes as it always has been, and that we will continue to do so in those instances where we feel like the regulations may not provide for equitable processes, we will change those in the ways that have been laid out for us through the notice and comment period.

Teri Lyn Hinds:     And I would add, Jill mentioned this earlier, that hopefully campuses will submit comments during the notice and comment period, and if this is something that is an area that you work in every day and you haven't heard conversations, you haven't been involved in conversations on your campus about submitting a comment, be proactive. Step up, if you're not the VPSA, talk to your VPSA, see if you can get this raised with your campus leadership team, talk to your government affairs or public affairs staff, or university communication staff or whoever would be sort of coordinating that effort, because the real day to day lived experience of processionals that are working in this area with students, that's invaluable information to share with the department. I mentioned before that there's 3500 degree-granting institutions in the country and we're all very different. So if we can provide concrete examples of what this looks like for as many different contexts as possible, that's really rich information that can help a department make better regulation and help govern our country better and our institutions better from the federal level. So really just get involved.

Teri Lyn Hinds:     And if you're not sure about how to do that or what to do, or if you run into a situation where your campus is like, "Yeah, we're not going to submit a comment," know that you can too as an individual person. Any member of the public can submit a comment, and like I said NASPA will be doing some information sessions the first week of December, people can tune in to them, but we've also got other materials that help people who want to make comments as individuals do that in a way that they don't risk speaking on behalf of their institution. Because if you're speaking as a private citizen you want to make sure that's clear in your comments, but you also still can draw on your professional experience and expertise in making your comments.

Jill Creighton:     It's that, "These are my own" kind of disclaimer. That's great advice.

Jill Creighton:     Now, we always like to end our show with asking about what you are reading.

Jill Dunlap:        Sure, I can start. I'm actually in the middle of reading Good and Mad: The Revolutionary Power of Women's Anger by Rebecca Traister. I had the opportunity to hear her speak about it at an event and I'm really enjoying it.

Teri Lyn Hinds:     I feel like the book that I've just finished reading, I need to issue a trigger warning for, particularly for this conversation. It's Who Fears Death by Nnedi Okaforo, or Okorafor rather, and it's a wonderful, wonderful book. It's a fantasy book set in Africa, but it very definitely needs a trigger warning for explicit rape and violence. So it doesn't shy away from those topics, but particular following this podcast I feel it's necessary to give that warning to readers who might need to prepare themselves if they want to try and read it.

Jill Creighton:     And if folks want to reach either of you after the show ends today, how can they do that?

Jill Dunlap:        Sure. My email address is jdunlap@naspa.org, or I'm also on Twitter as naspajill.

Teri Lyn Hinds:     And following the format, my email address is thinds, H-I-N-D-S, @naspa.org, and I'm also on Twitter as @terilynhinds, T-E-R-I-L-Y-N-H-I-N-D-S.

Jill Creighton:     And if you'd like to reach the podcast you can find us on Twitter at ascapodcast, that's A-S-C-A-P-O-D-C-A-S-T, or you can always email us at ascapodcast@gmail.com. Thanks so much Jill and Teri for sharing your viewpoint today.

Teri Lyn Hinds:     Thanks for having us.

Jill Creighton:     Next time on the ASCA Viewpoints podcast, two weeks-ish from now we will welcome Christina Parle. Christina serves as an assistant director in the office of student conduct at KU, or the University of Kansas. Christina is a newer professional and also serves as the director of membership on the ASCA board of directors and we'll be digging in on intersectional identity and what it's like to rise in the profession right now as a new professional. We hope you'll come back and join us.

Jill Creighton:     This episode was produced and hosted by Jill Creighton, that's me, produced, edited and mixed by Colleen Maeder. Special thanks to New York University's Office of Student Conduct and Community Standards, and to the University of Oregon's dean of students team for allowing us the time and space to create this project. If you're enjoying the podcast we ask that you please like, rate, and review us on Apple podcasts, or wherever you get your podcasts. It really helps others discover us and helps us become more visible in the general podcasting community. If you have suggestions for future guests or would like to be featured on the podcast yourself please feel free to reach out to us on Twitter at ascapodcast, or by email at ascapodcast@gmail.com.