Changes are coming to Title IX amidst a tug-of-war between victims’ advocates, who’ve rallied around the cry for society to finally start believing survivors, and due process advocates, who’ve said students have been long stripped of their rights in shoddy college investigations.
There are only a few days left for the public to comment on the contentious proposed changes to Title IX — a federal law from 1972 that prohibits government agencies from discriminating on the basis of sex.
Secretary of Education Betsy DeVos has been vocal in her opposition to Obama-era guidelines for how colleges should investigate sexual assault and harassment, announcing in 2017 that she would reverse the guidelines outlined in President Barack Obama’s “Dear Colleagues” letter addressed to universities.
The U.S. Department of Education published the proposed changes to Title IX on the Federal Register on Nov. 30, making them available for public comment for 60 days.
Each of the proposed changes strengthens the rights of accused students and edges college investigations closer to courtroom-like procedures, which has drawn both criticism and praise.
One of the biggest changes significantly narrows the definition of “sexual harassment,” which Obama-era guidelines defined as “unwelcome conduct of a sexual nature.”
In the proposed changes, a student’s conduct would have to be “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity” for it to be considered sexual harassment.
“Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined,” DeVos said in a statement. “We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas. They are the very essence of how Americans understand justice to function.”
One proposed change requires a university to initiate an investigation only if a complaint is filed with the Title IX coordinator or Title IX office and is directly within its “education program or activity.” It also requires live hearings, which complicates the situation if the students don’t have attorneys.
An additional change allows schools to determine the outcome of the investigation based on “clear and convincing evidence” rather than Obama-era guidelines of “a preponderance of evidence,” which requires investigators to be convinced by at least 50 percent that the accused might be guilty.
A single investigator would also not be allowed to determine the outcome.
But perhaps the biggest change in the law will allow students to have third parties — such as attorneys or advisers — cross-examine each other in the investigation process.
This, Furman University Title IX coordinator Melissa Nichols said, will likely have the biggest impact on the tone of investigations.
“Until now, a lot of schools have allowed parties to submit questions that maybe a hearing board would ask so that parties were never cross-examining each other directly,” Nichols said. “I expect it will make it feel a lot more like a court process.”
The Title IX changes come at a time when Furman is facing its own criticism for how it handled a rape investigation in 2017.
A lawsuit filed on May 15, 2018, by a former student — called “Jane Roe” — claims the university mishandled an investigation into a sexual assault by rushing the procedure, providing her medical records to the attorneys of the accused, and allowing the accused to review interview questions.
A counterclaim to Roe’s suit filed by the accused — called “John Doe” — also claimed the university mishandled the investigation, stating the school did not provide all of the evidence to the hearing board and did not conduct a fair investigation before suspending him for three-and-a-half years.
Critics of DeVos’ proposed changes claim they could cause victims not to report incidents of violence. End Rape on Campus, a nonprofit advocacy organization, released a statement saying the changes would make schools “a safe place to commit sexual violence.”
“DeVos is making plain with these unlawful rules that she is turning her back on survivors,” Jess Davidson, interim executive director of the organization, said in a statement. “The results of this rule are clear: Fewer will report their assaults and harassment. Schools will be more dangerous. And, more survivors will be denied their legal right to equal access to education after experiencing sexual violence.”
According to the National Sexual Violence Resource Center, one in five women are victims of rape while in college, and more than 90 percent of sexual assault victims on college campuses do not report the assaults. The organization says nearly two-thirds of college students experience sexual harassment.
But proponents of the new rule say it will help provide balance to an unjust process. Justin Dillon, a Washington, D.C.-based attorney who is listed as part of Doe’s defense team on the Furman court documents, wrote an op-ed for The Washington Post with his law partner — Matt Kaiser — that the reforms “don’t go far enough” to protect the accused.
“Far too many students have been forced to go to court to ensure their rights are protected because the Department has not set out legally binding rules that hold schools accountable for responding to allegations of sexual harassment in a supportive, fair manner,” DeVos said in a statement. “By following proper legal procedures and receiving input on our proposed rule, we will ultimately have a final regulation that ensures that Title IX protects all students.”