Education Secretary Betsy DeVos unveiled sweeping new Title IX regulations Wednesday that narrow the definition of sexual harassment and will require Emerson—and colleges across the country—to completely overhaul how they investigate reports of sexual assault.
The new federal regulations, which have been in the works for over a year, would require colleges to abandon the single-investigator model where one person investigates a report, and instead hold live hearings, during which alleged victims and perpetrators can be cross-examined.
The new regulations also give Emerson a choice between which standard of evidence they will require to find someone guilty of sexual misconduct. They can choose the currently-held “preponderance of evidence” standard, which means there is a greater than 50 percent chance of the claim being true, or they can choose the “clear and convincing” standard, which requires a much higher level of proof. This is slightly different from the drafted regulations that were released in November 2018, which stated that all colleges would have to adopt the higher standard of proof.
Under the new federal regulations, Emerson would also be able to shrink the number of mandatory reporters—individuals on campus required to report when sexual harassment or assault is suspected—to their choosing
The college would additionally only be responsible for investigating complaints that occurred on campus or as a part of its programs. The new regulations would exclude responsibility for incidents that occur off campus.
In order for any college or university to be found guilty of mishandling sexual misconduct cases, they would have to be proven “deliberately indifferent” in providing support to students or investigating complaints, according to the new regulation language.
All colleges and universities that receive federal funding in the nation, including Emerson, will have until August to comply with the new regulations.
Any currently open investigations would still follow the old regulations unless all parties involved agree to change to the new regulations, Vice President for Equity and Social Justice Sylvia Spears previously told The Beacon.
These regulations are the culmination of a years-long process by the Department of Education to alter the previous guidelines set out by the Obama administration. In 2011, the Obama administration issued the “Dear Colleague” letter which broadly defined sexual harassment and stated that colleges could be held liable for incidents they knew about or reasonably should have known about. The letter also highly discouraged live hearings where an alleged victim would be forced to face the accused.
“Allowing an alleged perpetrator to question a complainant directly may be traumatic or intimidating, and may perpetuate a hostile environment,” the Office for Civil Rights published in the letter.
The new federal guidelines come on the heels of a drafted report released by Emerson’s Title IX working group, which recommended that the Title IX office be removed from the Social Justice Center, along with implementing a standing committee. The recommendations additionally gave the college room to develop and implement additional resources for those accused of sexual assault.
Emerson President M. Lee Pelton instructed the working group to take into account the potential new federal guidelines drafted in 2018 and the possibility of new federal guidelines when they began their investigation in September 2019.
The working group was responsible for completing their investigation and submitting their findings, along with a final list of recommendations, to Pelton by April 2020. The group slowed their timeline after the COVID-19 pandemic forced collegiate operations to move online.
The Emerson community now has until June 5 to give feedback through an online response form. Members of the working group also plan to hold an in-person town hall in the fall, before finalizing their recommendations and sending them to Pelton, stretching the process five months past original plans.
The group does not have any power to change college policy and are only compiling a list of recommendations to present to Pelton, who has the power to implement them.
Several students swiftly criticized the working group’s report, arguing it does not adequately address student concerns and falls into a pattern of inaction that harms the student body.
Leah Cedeño, president of Students Supporting Survivors—an activist organization focused on empowering survivors of sexual misconduct at Emerson—and a former member of the working group, said the report does not represent the kind of change that students wanted to see out of the working group.
“It is meaningless forms of activism that I don’t really think does anything,” she said. “I think it makes the college look good. They can say that they did something…but if you look into the fine details, they’re really not doing anything.”
Co-chair of the working group Amy Ansell said she did not want to comment on the new federal regulations until speaking to the rest of the working group.
S3 said in a statement to The Beacon that they know the new federal regulations will likely face lengthy legal battles in the coming months that could slow their implementation.
“The federal government gutting rights for survivors in the middle of a global pandemic is transparently evil,” the statement said. “However, we do know that these regulations will face massive legal challenges in the courts from advocacy groups and we hope that in the meantime Emerson does not make any changes to its Title IX policy that would negatively impact the experiences of survivors. We also know that these regulations could get overturned with a Democratic majority in the Senate and hope that Emerson students focus their energy towards electing representatives that will overturn these awful regulations.”