Due to the ongoing COVID-19 pandemic, as well as new federal regulations and the start of the Fall semester, the Executive Council held an expedited email vote in mid-August to revise OP 3.04: Sexual Misconduct.

The revision was presented by Mr. Brett Harvey, the director of Title IX and EEO Programs, via email:

“This is a revision to the university’s Operating Policy 3.04 on Sexual Misconduct to comply with new regulations governing the response to sexual assault and harassment, which were issued by the Department of Education in May. The DOE regulations are extensive and did require significant revisions to our policy. That said, while some universities were required to overhaul their entire Title IX process, for MSU most of the changes are procedural and not substantive in nature.

While the new DOE regulations significantly narrow the scope of sexual misconduct that institutions are required to respond to, they also give institutions significant discretion to continue to respond to sexual conduct more broadly. My office consulted with Dr. Shaw, Dr. Hyatt, Dean Bourgeois, Nancy Siegert, and general counsel’s office, and there was unanimous agreement that MSU should not narrow the scope of its response to sexual harassment or sexual assault. Consequently, this policy:

* Does not narrow the substantive types of sexual misconduct that MSU will respond to.

* Does not prevent MSU from responding to sexual misconduct that occurs off campus.

* Does not change the existing mandatory reporter requirement, under which most MSU employees must report sexual misconduct they learn about.

* Does not change the standard of proof for sexual misconduct, which remains the same as all other conduct matters—preponderance of evidence.

This revision does make procedural changes to comply with the new regulations. These include requiring a formal written complaint before a Title IX investigation begins, requiring written notice of the subject matter of meetings with parties, and providing appeals for any pre-hearing dismissal. While significant rewrites were needed to track the exact language of the new regulations, they do not fundamentally change how our investigations and hearings operate on a practical level. For example, we have emphasized many of the due process-related features of the new regulations for years, such as written memoranda to the parties summarizing relevant evidence. So we were not required to make wholesale substantive changes.

While complying with the new regulations will lead to additional work and some additional cost -- due mainly to the need to retain outside attorneys to serve as adjudicators and advisors in hearings, which are now more procedurally complex -- it should not impact our ability to ensure a thorough and fair response to sexual misconduct. I am of course happy to discuss any concerns or answer any questions.”

Council members voted to approve.