Board of Regents approves controversial federally-mandated changes to Title IX rules on sexual misconduct
In a sometimes-heated meeting that later triggered a social media storm, the Board of Regents voted 10-3 Friday to approve a controversial change to Title IX rules governing the adjudication of sexual assault and harassment cases on college campuses.
At the center of the debate is a federal regulatory change from May that instructs universities to make a number of key changes to the way Title IX functions. Most important — and often most controversial — among those changes is a requirement that any investigation into harassment or assault include a live hearing with cross-examination conducted by an “advisor.”
In simple terms, the new rules also raise the burden of proof needed to successfully argue harassment, require investigators to presume any accused person is innocent and disallow any investigation for an incident not in the U.S., i.e. in a study abroad program.
Opponents of the new rules have argued that these changes collectively weaken a system meant to protect victims of sexual violence and harassment, and that they will further drive down the self-reporting of such offenses at a time when these incidents are already drastically under-reported.
“[This law] turns the process from victims seeking justice to instead go through a criminal trial, which by the way, will cost more money for institutions, and it will without a doubt discourage victims of sexual violence from coming forward,” Regent Lisa Levine said. “Bad laws are meant to be broken. as policymakers, we have the power to halt this terrible and harmful law.”
But proponents — most notably Education Secretary Betsy DeVos — have argued in part that the old rules put in place under the Obama Administration made it too easy for false accusations to ruin the reputation of the falsely accused.
Though the changes are nearly universally opposed across the American higher education landscape, colleges and universities were left with few options but to implement the new rules ahead of an Aug. 14 deadline, and largely for a single reason: Hundreds of millions of dollars in potentially lost federal funding.
“The consequences of the board not enacting these new regulations would put us out of compliance with Title IX law, which would subject the board to investigation by the Office of Civil Rights and it would jeopardize our federal funding,” NSHE General Counsel Joe Reynolds said.
In terms of raw dollars, system CFO Andrew Clinger told regents that Nevada institutions received more than $567 million in federal funds in fiscal year 2019, of which $420 million came through the Education Department.
Levine was the most vocal opponent of the measure during Friday’s meeting, calling the decision a false choice and more than once pushing to vote down the measure and seek instead to sue or join a lawsuit against the Department of Education over the legality of the changes.
But she was not the only critic. Of the regents who spoke on the agenda item Friday, all expressed a discomfort or dismay that their choice was either to implement these changes or risk demolishing an already-hollowed out budget.
“We hear threats all the time coming out of the administration doing this and that, and unfortunately for us, that $400 million is something they control,” Regent Patrick Carter said. “There's not another person that's in between them from moving that $400 million from us. And in the current space where we are, that would be absolutely devastating, especially for the next fiscal year coming up.”
But even as regents looked to formalize a process for pursuing legal action against the Department of Education later this month, Levine accused NSHE General Counsel Joe Reynolds of slow-walking a decision to join existing multi-state lawsuits aimed at stopping the rule change and withholding information about the change until just days before Friday’s special meeting — too little too late, in her estimation, to effectively challenge the rules.
“Why in the world is the board seeing this for the first time one week prior to it needing to be implemented is beyond me,” Levine said. “Three months was plenty of time for general counsel to come forward to the board and seek input on whether to join litigation. Three months was plenty of time to gauge the state attorney general's office, too, instead of them finding out at the last hour yesterday as a failure of NSHE going to them.”
As Board Chair Mark Doubrava sought to wind down discussion and initiate a vote on the measure, Levine chimed in again, this time because Attorney General Aaron Ford had called her to clarify discussions between his office and NSHE regarding a possible lawsuit.
As Levine spoke, noting now that Ford had hung up “because Chair (Mark) Doubrava had taken him off the agenda,” she was interrupted by a call for a vote and a remark that her comments were out of order. With that, board Chief of Staff Dean Gould cut in and asked Levine to mute herself on the online call.
“I don’t want to man-speak, but I will have to if you continue to child-speak so please stop,” Gould said, an apparent reference to an exchange between himself and Levine during a meeting on July 23.
During that meeting, as Levine was seeking to add new business for the Aug. 7 meeting, Gould interrupted her to imply her suggestions of new business were becoming lectures to the board. Levine responded that she would try “not to lecture and be mansplained again.”
— LeAn Shelton (@LeAnShelton_LLC) August 7, 2020
The comment triggered swift backlash on social media, including from an increasingly large swath of elected officials from across the state.
Democratic Rep. Susie Lee said the incident was “embarrassing” and called for Gould to “do the ‘manly thing’” and apologize for his remarks; Gov. Steve Sisolak, who appointed Levine, said he expected a swift apology and that Gould’s behavior was “completely unacceptable”; Ford called it “utterly ridiculous"; while Treasurer Zach Conine’s quote tweet of the exchange said simply: “This is disgraceful.”
In a tweet, Levine later wrote that it “wasn’t just me that was shut down, it was every victim & survivor of sexual violence whose voice should have been heard and who I was fighting for.”
Though Regent John Moran, who spoke immediately after Gould, said the remarks were “not necessary,” no other regents acknowledged the remark before a roll-call vote was finished and the board recessed for 10 minutes. Ten regents ultimately voted for the change, with Regents Levine, Moran and Donald McMichael voting against it.
In a statement released Friday evening, Gould confirmed that his comment stemmed from that initial interaction on July 23.
"My reaction during today’s Board of Regents meeting was in response to a previous meeting (July 23, 2020), at which I was attempting to protect the Board from a possible open meetings law violation during the new business portion of the agenda and Regent Levine accused me of 'mansplaining,'" Gould wrote. "I found this comment to be unprofessional and embarrassing and is not an appropriate way for an employer to speak to an employee.
"During today’s meeting, while the Board Chair attempted to conduct a roll call vote Regent Levine was disrupting the defined procedural process. At that time, I became frustrated at her lack of decorum. In retrospect, I should not have stooped to her level of acrimony."
In a coda to the debate, the attorney general did eventually manage to make a statement to the board, though not until it took public comment at the meeting’s conclusion. In his remarks, Ford said that lead counsel from Pennsylvania had approached his office in May regarding a possible multi-state lawsuit that Nevada could join, but that his office never received a “definitive response” from NSHE.
“Frankly, given NSHE’s previous comment letter, which outlined a much more moderate position than taken in the multi-state lawsuit, and given the lack of attentive response and interest in joining the lawsuit, as well as the lack of information available at the time to include it in the declaration, we were unable to join the lawsuit,” Ford said.
A decision on whether or not Nevada or NSHE will join any existing lawsuits against the Title IX rules, or whether it will file a lawsuit of its own, is scheduled for the regents’ next meeting on Aug. 21.
Update, 8/7/20 at 4:10 p.m. - This story was updated to include details on which regents voted against the decision to implement the federal Title IX changes.
Update, 8/7/20 at 7:07 p.m. - This story was updated to include a statement on Friday's incident from Board of Regents Chief of Staff Dean Gould.