A college committee of administrators, faculty, and students released an updated Title IX policy establishing the college’s altered process for handling allegations of sexual misconduct and violence, in response to a new federal mandate from the U.S. Department of Education.
Dubbed the “Power-Based Interpersonal Violence (PBIV) Policy,” the revamped Emerson regulations include significant differences from its predecessor, the Sexual Misconduct guidelines, which were in place since the 2014–2015 academic year.
The 81-page PBIV policy dictates that some cases of misconduct will be processed under Emerson’s procedure, and others will be dealt with through a new, federally-mandated process that includes live hearings. In addition, the updated college guidelines add stringent timelines to the reporting, responding, and appeals processes, and clarifies existing measures, like informal resolutions and administrative leave.
The set of federal guidelines went into effect on Aug. 14, the day Emerson debuted its updated policy in a college-wide email.
Below is a breakdown, fact-checked by a member of the committee, of all of the document’s relevant protocols and changes from previous policy.
Why did Emerson update the policy to begin with?
A small steering committee—composed of Emerson administrators, students, staff and faculty union members, and academic deans—scrambled to redraft the existing Sexual Misconduct policy over the summer, after the U.S. Secretary of Education Betsy Devos announced the new guidelines in May. The college group completed the task of overhauling the policy in mere months, making changes that can otherwise take years to enact.
Devos’ novel regulations apply to all educational institutions that receive federal funding nationwide. In order to keep receiving federal financial contributions, the committee had to release a policy that adhered to the revised Department of Education regulations before Aug. 14.
Failing to meet the new guidelines by the deadline could have resulted in the loss of thousands, if not millions, of dollars in financial compensation that helps the college operate. Much of the federal funding that could have been threatened is funneled into student financial aid.
Devos has argued the Obama-era guidelines in place before her department’s new changes denied due process to the accused. The updated federal guidelines, she says, strike a more fair balance between the two parties.
But these federal Title IX regulations have drawn harsh national criticism from sexual assault survivors, advocates, and almost 20 state attorneys general, including Massachusetts Attorney General Maura Healy. Critics say the guidelines unfairly weaken protections for those reporting instances of sexual misconduct and give unsolicited power and influence to the party responding to an allegation.
Emerson’s alterations and additions to its PBIV policy are also informed by recent complaints from students and survivors who have criticized the Title IX office for being ineffectual and slow in the past. Before DeVos announced the government’s new Title IX regulations, the college was already in the process of reviewing the college sexual misconduct process, after an incident in 2019 where a list naming over a dozen students accused of sexual misconduct was posted on the scaffolding of the Little Building.
So what’s actually changed?
The most striking difference between the updated Emerson policy and its predecessor is the distinction between conduct prohibited by the college and conduct prohibited under the federal guidelines. Whether the reported behaviors falls under the purview of the Emerson policy, the federal policy, or both determines how the case is assigned, investigated, and when applicable, properly disciplined.
Cases of reported conduct that include behavior barred by both policies are subject to the federal investigation and sanctions process, which comes with a live hearing.
DeVos’ regulations prohibit just a narrow subset of what the college deems unacceptable. That means all conduct forbidden under the federal Title IX regulations is prohibited by the college, but not everything deemed inappropriate under Emerson policy is punishable by DeVos’ standards.
In short, the federal policy forbids sexual assault, dating/domestic violence, sex-based stalking, the solicitation of sexual acts in exchange for goods and services, and sexual harrasement that is so severe it denies a community member “equal access” to educational opportunities.
Emerson’s extended list of inappropriate conduct includes all stalking, relationship violence, and sexual harassment that does not fall under the DeVos guidelines. It also prohibits sexual exploitation; intimidation; alcohol and drugs; lack of bystander intervention; retaliation for reporting alleged abusive conduct; and sexual contact with someone who is in any way “incapacitated,” like inebriated or unconscious.
Devos’ Title IX policy also requires the college to respond only to conduct violations that take place in areas where they have “substantial control,” like classroom buildings, residence halls, and on-campus event spaces. This precludes schools and universities from acting on claims that happen off-campus or at a study abroad program.
For example, under the federal Title IX regulations, Emerson would be mandated to respond to a report where a student was stalked between Walker Building and Piano Row. But if that same student was followed or intimidated solely in Downtown Crossing, at the AMC Theater, or in the Boston Common, the college is not obligated to lead an investigation under the federal guidelines.
However, the steering committee made it clear in the new policy that the college will continue to respond to all claims involving college community members, regardless of where they take place. In the college policy’s own words, “although the Dept. of Education has more detailed & narrow definitions of different forms of PBIV, the college will enforce [the] Title IX policy based on their own definitions.”
The federal policy also tends to be broader in wording and application than the college’s guidelines. This is most apparent in the two documents’ differing definitions of sexual harassment. Emerson’s section on prohibited sexual harassment consists of a 13-point list, which describes in great detail its different forms, like sexual inneundos, name-calling, physical coercion, and failure to treat people consistently with their gender identity. The federal definition, on the other hand, is four sentences long.
The process of investigating and sanctioning cases also varies between the college and the federal policy.
If a formally-filed case falls under the jurisdiction of Emerson’s PBIV policy, and not the federal guidelines, little changes in terms of how the report is handled, in comparison to what the process was before the Aug. 14 update.
The report is “thoroughly and impartially” investigated either by deputy Title IX coordinator Ryan Milligan, or an outside investigator appointed by Title IX coordinator Pamela White. The investigative process includes taking statements, sifting through evidence, and interviewing witnesses privately. Then the investigator writes a draft investigation report that each party and the Title IX coordinator will review and provide feedback on in writing.
From there, the Title IX coordinator dives into an internal review, during which they would make a “determination of responsibility,” or more simply, a decision. Then a final investigation report is completed.
If the Title IX coordinator finds a community member responsible for violating the PBIV policy based on the final investigation report, they would notify the Director of Community Standards to assemble a sanctions panel that would give a ruling on disciplinary measures.
Reports of conduct that fall under the federal Title IX regulations, however, are now subject to a new step: a courtroom-like live hearing.
This means investigations that explore behaviors prohibited by the DeVos regulations are now subject to a cross-questioning process that includes both parties—an addition denounced by many who believe these hearings may discourage survivors from coming forward. In this procedure, the burden of finding a responding party “responsible” or “not responsible” of the accused conduct is also shifted away from the Title IX coordinator. Instead, this obligation falls to a “Decision Maker,” who can be anyone but the college coordinator or the case investigator.
The live-hearing questioning would always take place remotely after a final investigation report has been written and shared. During this questioning, the character of either party is not to be a point of discussion, nor will the reporting party’s sexual predisposition or background be considered in the final decision, according to language in the college policy.
There, a “Decision Maker” would moderate and oversee the hearing where each party’s advisor would be able to cross-examine the other party and witnesses.
Advisors are chosen by the parties themselves and may be attorneys, though there is no requirement that an advisor have legal experience. If a party does not have an advisor, the college will provide one. Administrators are already in the process of hiring outside litigators to fill the need for advisors, a steering committee member told The Beacon.
Before the redrafting process, advisors for each party were largely there for support, provided to help parties endure the potentially traumatic and emotional parts of the Title IX process. Now, they take on a more important and immersive role where they are the ones responsible for forwarding the parties’ case through questioning.
The Title IX office also intends to hire a list of Decision Makers from outside the college they may regularly use. The federal policy did not provide guidelines on how to hire a Decision Maker and what their background should be, other than the role cannot be filled by the Title IX Coordinator or investigator.
In the end, these Decision Makers will be in charge of making the final determination on a community member’s behavior, rather than the Title IX coordinator as the Emerson-specific policy mandates. The Decision Maker will also make a recommendation of disciplinary measures to the sanctions panel. Then, the report goes to the Community Standards office, where a sanctions panel is assembled.
Cases that fall only under college-prohibited conduct will not be subject to any kind of live hearing.
Any reported cases that include conduct violations that fall under both the Emerson policy and the federal guidelines are called “hybrid reports,” and are handled the same way as cases under the DeVos regulations. As a result, the process for hybrid reports includes a live hearing.
For example, a domestic violence case that includes conduct violations both on campus and off campus would be a hybrid report. Therefore, a formal report about that relationship would include the live hearing process and cross-examination of evidence.
Because conduct reports often include violations that are ongoing and involve various offenses in differing locations, hybrid reports may become commonplace with the new policy in effect.
This investigative process has also undergone two smaller changes.
One, the case investigator now takes on more of a fact-finder and presenter role. Before the redrafting, this investigator would include a recommendation in the final report on whether or not they believe the responding party is in violation of the college’s conduct standards. Now, this portion has been eliminated. Any recommendations, as well as the final finding of responsibility, will come solely from the Title IX coordinator.
Two, the implementation of “supportive measures” has also been tweaked. The Title IX coordinator may still implement these measures—which include actions like a no-contact order or push to remove two parties from the same class—at any time during the investigation. But under the new federal policy, these supportive measures cannot put an undue burden, or have a “substantial impact,” on the responding party. If the responding party feels the orders are unfair, they may urge the coordinator to reconsider the action on the basis that it hinders their educational experience.
Lastly, the appeals process, where either of the parties can ask for a reconsideration of the final sanctions, has remained largely the same. The only major change is a switch in the identity of the appellate officer, who leads this process. Before, the college’s Dean of Campus Life would oversee appeals in the undergraduate population, and the graduate dean would oversee those involving graduate students. Now, these two roles have switched.
So the graduate dean will now handle the appeals process for a case involving a first- or second-year. This role reversal was made so that the deans’ role as appellate officers do not interfere with their part in other steps of the investigative process, like implementing supportive measures, a steering committee member said.
What parts of the policy are more detailed now than before?
Over the course of the summer, the steering committee took advantage of the policy redraft to dive into underdeveloped areas of the college’s guidelines. A number of these de facto topics already existed in the old Sexual Misconduct policy, but the formal revision process allowed the college to affirm important measures with new, necessary details.
For one, the updated PBIV policy delves into the informal resolution process, which is applicable in cases involving violations under the college-specific and federal policy. This allows the involved parties to forgo the investigative process and a potential live hearing for more lenient measures mutually agreed upon by the two parties and the Title IX coordinator.
In an email, Sylvia Spears, head of the Social Justice Center, said three informal processes “have always been available, but weren’t specifically addressed in the policy.”
The Title IX coordinator may implement supportive measures that can “resolve the matter,” or moderate a “facilitated conversation…typically before or instead of” the formal process. The responding party can also accept responsibility and disciplinary actions for the alleged behavior in lieu of a formal investigation.
Either party may request an informal resolution process any time before an investigator decides whether or not the responding party is responsible for the alleged conduct.
The new Emerson policy also includes additional details on the process of implementing administrative leave for student employees, staff, or faculty involved in a Title IX case. The new language clarifies that student workers, like tap desk assistants or registrar employees, can be temporarily removed from their position or assigned to work in a different space. Faculty and staff may be put on leave—with or without pay—at any time during the process.
Steering committee members made sure to explicitly detail the ins and outs of informal resolution and administrative leave, because the new federal guidelines require more detailed language for any “supplementary measures” that may be enacted before or during the investigation, a committee member confirmed.
The new language places a greater burden of responsibility on the organizations and groups to hold its members responsible for potential PBIV violations. Now, “a recognized student group or organization may be held accountable for the behavior of its members and guests on its premises, at or arising out of events sponsored (or co-sponsored) by the organization, or when a group including a significant number of members or guests violates this Policy.” The policy goes so far to say violation could result in probation, loss of college-recognized organization status, or even dissolution.
The updated PBIV policy also set forth some guidelines for student organizations about how they would go about reporting instances of misconduct, as well as information about training their members about harassment prevention. The previous sexual misconduct policy featured an almost complete lack of guidelines for organizations about their role in the Title IX process.
However, the new policy does not clarify whether or not student organizations have the right to remove members from their organization based on ongoing or past Title IX investigations or accusations.
While there were no new disciplinary actions added to the policy, it does further detail the range of sanctions that could apply to community members found responsible for violating PBIV measures and a basic glossary of relevant Title IX language.
Is anything the same?
Most minor details and the purpose of the Title IX and PBIV policy—either in the language or in sentiment—remains consistent between the old and new guidelines.
Those who report instances of misconduct are still not required to follow through with an investigation, for example. And the Healing and Advocacy Collective is still a confidential haven for community members looking to speak about trauma.
Other topics have also seen little revision: good faith reports, need-to-know policy, confidential resources, false accusations, law enforcement involvement, record keeping, report withdrawal, the makeup of the sanctions panels, and the length of time the Title IX process is supposed to take (up to 90 days with “reasonable delay”).
In the revised PBIV policy, the college is also sticking to the same standard of proof—a preponderance of evidence—when deciding if a responding party is responsible for the accused PBIV violation. This means the responding parties are found responsible of misconduct if it is more likely than not that they behaved inappropriately as the allegation suggests. Under the revised federal policy, colleges may choose between adhering to a preponderance of evidence or a higher level of proof.
What we still don’t know
There is still much up in the air about student organizations and how they are expected to address instances of PBIV within their groups. The old Sexual Misconduct Policy did not mention if student organizations had a responsibility to report instances of misconduct, nor did it clarify if these groups could face disciplinary action for being complicit in or not reporting instances of PBIV to the college.
In addition, the new PBIV policy debuted while the college working group, appointed by President M. Lee Pelton last year, continues their process of finalizing recommendations to alter Emerson Title IX policy in response to student demands.
Co-chair Jan Roberts-Breslin told The Beacon in an email that the group met once during the summer and then decided to wait for the updated Emerson PBIV policy to be released before proceeding with the redraft. They plan to reconvene soon with the intention of releasing the draft publicly before hosting a virtual town hall meeting for community members to give feedback. Right now, the intended timeline means the working group’s suggestions will be in Pelton’s hands by the end of the fall semester.
The group began its work last year after Pelton authorized its formation with the intent to review the college’s existing policies. Pelton created the group shortly after the names of 12 students accused of sexual misconduct were posted on the scaffolding outside of Little Building in April 2019. After students criticized the group’s initial draft of recommendations, members announced they would continue meeting through the summer to modify the document of suggested changes before holding a public town hall and sending the finalized report to administration this fall.
Several major concerns about the draft from the Emerson community have not been addressed by the college in the newly-released PBIV policy, like if the list of people privy to details of case details will be expanded and whether or not the Title IX Office will remain within the purview of the Social Justice Center.
Since the release of the new PBIV policy, there have been no updates from the working group on what they have found in their additional summer meetings and when they plan to release their final draft of the report.