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In November 2018, the U.S. Department of Education, under U.S. Secretary of Education Betsy DeVos, released proposed changes to Title IX procedures.
The changes would include various provisions such as requiring colleges and universities to apply new due process protections, update the definition of sexual harassment, and also update their investigative process to ensure investigators could not also act as adjudicators of Title IX claims.
Title IX, the federal law that calls for gender equity in education and protects students from gender-based discrimination, has during the past five years been strengthened in the wake of hundreds of reports of campus sexual assault that prompted investigations of Universities across the nation for mishandling these Title IX claims.
The proposed changes could force universities to reconsider their responses to Title IX claims once again.
Several colleges are still determining what this all mean for their campuses.
Advocacy groups, such as the Project Sister Family Services in Pomona, are also trying to understand what the changes might mean.
Project Sister is an advocacy organization that offers copious services to victims of sexual assault and domestic violence, such as 24-hour hotlines and community education.
“We have not fully digested what the changes in Title IX regulations means for everyone, but I am having a university partners meeting… to address that specific issue,” said Julie Boynton, executive director of Project Sister.
Last month, several colleges and universities, such as Occidental College, immediately halted ongoing Title IX investigations.
Meanwhile, they work to reshape their policies so they can implement the newly proposed regulations.
The pause by these local colleges was also prompted by a recent decision made by a state appellate court via a University of Southern California court case involving a football player who was found to have been denied a fair hearing when, in 2014, he was accused of sexual assault.
The state court ruled that in cases where serious discipline such as suspension or expulsion may be the end result, “fundamental fairness” is necessary and must be applied to all public and private universities across California.
The right to “fundamental fairness” requires that the accused be granted the ability to cross-examine the victim, which DeVos’ proposal also emphasizes.
Under the U.S. Department of Education’s proposed updates, sexual assault cases would require universities to hold live hearings in which both parties are allowed cross-examination proceedings.
Personal confrontation between alleged victims and alleged perpetrators would be prohibited, so cross-examinations would be carried out Title IX advisors.
Coinciding with the possible new regulations regarding cross-examination, the proposal would also implement basic due process protections for students.
According to the Department of Education, these protections would include a presumption of innocence for the accused, a requirement of written notice of allegations and equal opportunities for all parties to review all collected evidence.
Additionally, the cross-examination process would be subject to rape shield protections.
Rape shield laws in California, according to the Shouse California Law Group, rule that using a victim’s past sexual conduct as a basis to prove that they consented to the sexual acts in question are strictly prohibited.
Prior to the proposal, instances of sexual harassment must “sufficiently severe or pervasive” in order to be actionable, according to the Supreme Court case Meritor Savings Bank v. Vinson from 1986.
In the Indiana Law Journal publication “Reconsidering Severe or Pervasive: Aligning the Standard in Sexual Harassment and Racial Harassment Causes of Action,” author Heather L. Kleinschmidt describes “severe or pervasive” as a standard that includes both subjective and objective components.
This means that not only must the victim perceive their environment as abusive, a reasonable person must also come to the same conclusion.
For a behavior to be pervasive, it must be frequent, rather than a one-off occasion.
However, DeVos’ proposal would actually change the definition of sexual harassment; instead of the current “severe or pervasive” standard, she proposed a standard that must include “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive.”
This means that it must meet the criteria for all three aspects, instead of at least one of the two currently considered.
“Harassment that is sufficiently severe can be deeply upsetting and impactful without it having to be pervasive,” said Aaron Baker, assistant professor of psychology.
“The idea that it needs to be severe and pervasive really only speaks to a relatively small percentage of harassment and assault because a lot of these types of situations are either severe or at a lower level of intensity and pervasive, and those are the things that really affect people.”
Baker added that the notion of being “objectively offensive,” follows a narrative typical of one political persuasion, of older generations believing that the younger generation is too sensitive, and that anything can be taken as offensive.
“The problem is who defines what is objective,” Baker said.
Another aspect of the proposal involves phasing out the typical “investigator-only” model, which would encourage impartiality throughout the decision process.
This model usually involves the investigator also acting as the judge of the case.
If the proposal is implemented as law, then universities will instead be required to implement investigators who are completely separate from those who will be making the final decision in the case.
“I think having everything in the hands of one person is inherently problematic. I would say the change is in the right direction, but I think it would make the most sense to me if there were a board of people to hear these investigations,” Baker said.
“Every person has their own biases and when you put all of that power into the hands of one person, it opens up the possibility that things are being handled improperly.”
Some colleges are ready to implement the changes immediately.
Claremont McKenna has already halted its ongoing Title IX investigations in response to the proposal.
ULV, however, is still conducting research regarding these proposed changes, and how it might implement them as necessary.
Megan Jackson, Title IX manager on campus, said the proposed changes are still too new for her to have a plan for implementing them.
Implementing updated Title IX protocol, she said, must be collaborative, and the University must explore all available options through examining the different plans and models at other universities.
“Of course, all of that will be made readily available,” Jackson said.
“In terms of new policy, that (would) go out campus wide based upon implemented changes, these (would be) available for everyone to view.”
Juan Regalado, dean of students, said that one of the challenges within Title IX regulations is that it seems like every year something happens that creates a fundamental change in how the process is approached and managed.
Although various California universities have recently halted their processes, ULV has not yet made that decision.
“We are currently in the process of discussing pausing so that we can readjust our process based on (possible) changes,” Regalado said.
“(We are) Talking through what the specific pieces are that we need to re-center or readjust around.”
The proposed changes by DeVos and the Department of Education have not yet been legally mandated.
Universities were given the chance to comment on the proposal until Jan. 23.
Nearly 97,000 comments were made in response to the changes, according to the Washington Post.
The Department of Education is currently reviewing the universities’ comments.
Jocelyn Arceo can be reached at firstname.lastname@example.org.