Missouri State~

UNIVERSITY

September 19, 2017

Hilary Malawer, Assistant General Counsel

Office of the General Counsel
U.S. Department of Education
400 Maryland Avenue SW., Room 6E231
Washington, DC 20202

RE: Comment on FR Doc# 2017-13157

Docket ID: ED-2017-0S-0074

Dear Ms. Malawer:

In an effort to appropriately and proactively address sexual assault affecting our campus
community, and in response to guidance issued by the Department of Education' s Office for
Civil Rights ("OCR") in 2011,2014, and 2015, Missouri State University hired its first full-time
Title IX Coordinator in August of2015. Subsequently, we have hired an additional full-time
investigator and full-time bystander intervention coordinator to augment our compliance efforts.
For the past two years, these professionals have been providing Title IX training and
presentations throughout our campus community, and conducting all Title IX investigations
(including investigations pertaining to domestic/dating violence and stalking, under VA WA).

Based on our experience, we believe the OCR should be commended for insisting that
universities acknowledge and address Title IX issues, just as universities have, for the past
several decades, addressed other serious alleged conduct violations that affect campus
communities, including physical assault, theft, drug offenses, and even homicides. As an initial
point, we would note that our university- like most universities across the nation- has utilized
the preponderance of evidence standard for all conduct matters. It would be both inappropriate
and unworkable to subject conduct offenses involving reported sexual assault to a different- and
higher - evidentiary standard. To the extent that the current dialogue is focused on concerns
involving due process- and, in some instances, the complete lack of due process -changing the
evidentiary standard will not address this concern.
We agree that any system of justice - whether criminal, civil, or institutional - must
prioritize and ensure due process for all parties to the proceedings. The OCR' s guidance
admonishing institutions to provide fair and equitable treatment and support to all parties
confirms this fundamental principal. Accordingly, at Missouri State, we provide written
correspondence to both complainants and respondents about both the investigatory process and
resources available for support. Both complainants and respondents are provided the opportunity
to give a statement during an interview process, and to provide the investigator with both

OFFICE OF GENERAL COUNSEL

205 Carrington Hall • 901 South National Avenue • Springfield, Missouri 65897 • 417-836-8507 • Fax 417-836-6777
www.missouristate.edu
An Equal Opportunity/Affirmative Action Institution
Letter to Ms. Malawer
Page 2 of 3

witnesses and other forms of evidence. The Title IX Office endeavors to interview all witnesses
provided by the parties, while following up on all relevant information provided by any source
during the investigation. Throughout the investigatory process, every effort is made to maintain
the confidentiality of both parties, to the fullest extent possible. While we are mindful of the 60
day investigatory timeframe established by the OCR, Missouri State prioritizes a thorough,
impartial investigation over strict conformity to that timeframe. Conducting a thorough
investigation that is fair and impartial to all parties is always our highest priority.

At the conclusion of the investigatory process, the Title IX Office makes a determination
as to whether there has been a Title IX violation based on the preponderance of the evidence
standard (which, again, is the same evidentiary standard utilized for all alleged conduct
violations). The final investigatory report is then submitted to the Conduct Office if a Title IX
violation has been found. The Conduct Officer then meets with the respondent to provide an
opportunity for the respondent to review the investigative report and to discuss whether the
respondent agrees with the investigatory findings and accepts the proposed sanction, or disagrees
with the investigatory findings and/or proposed sanction. If a respondent disagrees with the
investigatory findings and/or proposed sanction, the matter proceeds to an evidentiary hearing
for resolution. The hearing authority is comprised of University faculty and/or staff members,
who have received prior training on Title IX.

Both complainants and respondents are given the opportunity to submit questions, call
witnesses, and provide other evidence during the hearing. Both parties are permitted to be
counseled by an advisor of their choosing. At the conclusion of the hearing, the hearing
authority makes a decision based on the preponderance of the evidence standard. Either party has
the right to appeal the decision of the hearing authority. At every stage, University officials are
mindful of the due process rights of all parties. We endeavor to assure compliance with not only
OCR guidance, but also applicable statutory and case law.

Under the system in which we have been operating, we have experienced an array of
outcomes that confirm that our process is neither predetermined nor a sham. For example, we
have investigated cases that did not result in a finding of preponderance of the evidence and,
accordingly, were not submitted to the Conduct Office. We have submitted investigations to the
Conduct Office in which a preponderance of the evidence was found by the investigator, but in
which the hearing authority disagreed and did not find preponderance of the evidence. At both
the investigatory and hearing stage, there have been findings of responsibility against both male
and female respondents in both opposite-sex and same-sex situations. Moreover, even in cases
where responsibility was found, the Conduct Office and/or the hearing authority have assessed
sanctions ranging from probation to suspension to dismissal from the University.
In conclusion, based on our experience, it is our opinion that failures of due process at
some universities are not the result of erroneous OCR guidance; rather, they stem from
misapplication of such guidance. Current OCR guidance emphasizes fairness to, and due process
for, all parties. A cursory review of media coverage throughout the country reinforces the
necessity of maintaining focus and fair application of Title IX on college and university
campuses throughout the country, as allegations of sexual assault continue at epidemic rates. Fair
Letter to Ms. Malawer
Page 3 of 3

and consistent application of the laws and guidance are critical to reaching the ultimate goal,
which is reduction of sexual violence in campus communities.

Thank you for permitting Missouri State University to provide input on this important
topic of discussion.

Respectfully submitted,

Rachael M. Dockery
General Counsel