Proposed Title IX changes may affect college policies if passed

Secretary of Education Betsy DeVos introduced changes to the federal Title IX policy in November 2018 that would alter or reverse guidelines established under former President Barack Obama’s administration.

The 145-page document changes the Title IX policies for all federally funded colleges and universities across the country. Most schools, including Emerson, receive some form of federal funding through financial aid. Title IX protects people from discrimination on the basis of sex in an educational or federally funded institution and dictates how schools should handle sexual harassment and assault allegations.

The proposed changes would affect how formal complaints in sexual harassment or assault cases are filed and investigated. Additionally, they would redefine sexual harassment, allow colleges to set a higher standard for evidence, and permit the accused and accuser to cross-examine one another according to the college’s policy.

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How could these changes affect Emerson?

If the government accepts the proposed draft, Vice President for Diversity and Inclusion Sylvia Spears said there would be a date and deadline for colleges to revise their own policy—a process that could take several months. All colleges would have to make changes to adhere to the proposed new rules. However, Spears said they have not yet discussed specifics at Emerson.

“I think it’s wise for all members of our community—not just students, because the Title IX policy would affect staff and faculty as well—to be actively engaged and paying attention,” Spears said. “Because it will affect Emerson’s policy.”

How would Title IX cases be affected?

The proposed changes would redefine sexual harassment as unwelcome conduct on the basis of sex and must be so severe that it interrupts someone’s access to education or related activities. The Obama administration defined sexual harassment as unwelcome conduct including unwanted verbal, nonverbal, or physical advances of a sexual nature.

If DeVos’ document is approved, colleges will be allowed to set a higher and more rigorous standard of proof when evaluating claims of sexual harassment. Under Obama’s administration, a party only needed their allegations to have a 50 percent or greater chance of verity.

Spears said the standards of proof under the Obama administration were considered the best practice at Emerson for several years. The college has not yet discussed changing the standard for evidence in anticipation of the new rules, according to Spears.

In regards to ongoing cases, Spears said it is common practice to continue using the current Title IX policy throughout a federal case process. The exception would be if both parties involved in the case, the accused and accuser, agree to switch to the new policy.

The new rules would also give a person accused of sexual misconduct the right to cross-examine their accuser. This means anyone accused of sexual harassment or assault would have the right to question the person who made the accusation or filed a complaint.

The Obama administration discouraged direct cross-examination of parties or witnesses. However, if a school allowed one party to cross-examine the witnesses, the other party had the same right.

“Allowing an alleged perpetrator to question a complainant directly may be traumatic or intimidating, and may perpetuate a hostile environment,” the federal Office for Civil Rights published in a 2011 Dear Colleague Letter during the Obama administration.

How would sexual harassment and assault claims be reported?

Emerson’s current policy dictates that all faculty and staff members are mandated reporters. However, under the proposed reforms, educational institutions would only be responsible for investigating incidents with formal complaints.

A formal complaint is made to an official with the authority to initiate corrective measures. According to DeVos’ document, officials would not need to include professors, resident advisors, or any other college staff. Colleges would be able to decide who is a mandatory reporter in Title IX cases and could limit that field to a small number of people.

The new rules would affect the federal policy requiring colleges to investigate a complaint regardless of where the incident occurred. Under DeVos’ rules, educational institutions would only be responsible for investigating allegations that occurred on campus or within their own programs.

“I would worry about any changes in the regulations that make it less likely that people are going to report concerning behavior, or less likely that they are going to have access to supportive resources,” Spears said.

According to the new regulations, a school can be held accountable for not properly addressing an allegation if they are acting “deliberately indifferent.” Therefore, an institution would violate the law if they responded unreasonably to the sexual harassment allegations considering known circumstances. It is not clear what would be considered an unreasonable response in DeVos’ document.

What can students do if they want to provide feedback on the proposed changes?

The public can submit comments to the proposed draft of regulations online until Jan. 28, 2019 at 11:59 p.m. Following this, Congress can either offer a new draft or alter the current document.

Spears said although Emerson’s Title IX office appreciates hearing students’ thoughts, the only way to potentially impact DeVos’s changes are to submit comments to the government.

James McManus, an Emerson journalism law professor, said the new Title IX rules were not entirely unprecedented.

“These reforms have been discussed for many years—and some of them might be positive and some might be useful, but they deserve great scrutiny,” McManus said.

Associate Vice President and Title IX and Clery Act Coordinator Pamela White could not be reached for comment.

According to Spears, there are numerous public interest groups like End Rape on Campus, Know Your IX, and It’s On Us gathering and commenting on the Title IX revisions. The U.S. Federal Register and Know Your IX websites also offer information about the changes and their potential impacts.

“People need to comment directly to the federal government,” Spears said. “Where I’ve always kind of landed on comment periods is: It’s better to participate and have your voice known than sit silently.”

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