United States Secretary of Education Betsy DeVos proposed several changes to Title IX regulations on Nov. 16. Among other things, the 1972 law requires schools that receive federal funding to respond to and remedy reported instances of sexual harassment and assault.
If approved, DeVos’ proposals would:
- Change the definition of sexual harassment to mean:
- A school employee is “conditioning the provision of an aid, benefit, or service of the [school] on an individual’s participation in unwelcome sexual conduct;”
- Regardless of who the perpetrator is, “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the [school]’s education program or activity;”
- Sexual harassment is currently defined as “unwelcome conduct of a sexual nature” that includes “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”
- Schools would only be held responsible for investigating sex discrimination incidents that occur on campus or in connection to its own sponsored programs and activities.
- Title IX protections would be limited to persons in the United States, which would affect study abroad programs.
- Guarantee both parties the right to cross-examine each other.
- Direct cross-examination was previously discouraged because it could potentially retraumatize survivors.
- Allow the school to apply a stricter standard of evidence.
- Under current rules, schools are only able to apply the “preponderance of the evidence” standard, which is a lower legal standard.
- The proposal would give schools the option to apply the stricter “clear and convincing evidence” standard.
- If a school chooses to apply the “clear and convincing evidence” standard for cases that carry similar consequences to sexual harassment, they will be expected to use that standard for sexual harassment cases as well.
- Only require schools to investigate an incident if they have “actual knowledge of sexual harassment (or allegations),” which for colleges and universities is defined as, notice given to “an official with authority to take corrective action.”
- The complaint has to be made to the Title IX coordinator or an official who has the “authority to institute corrective measures.”
- Give schools the option to offer mediation or another informal resolution process, so long as both parties offer written consent.
- Under current rules, mediation isn’t allowed even on a voluntary basis for cases related to sexual assault and is discouraged overall.
- Emphasize due process rights for the accused. This includes:
- Reiterating that the accused is innocent until proven guilty.
- Affirming that evidence brought forward by the accused and accuser should be examined equally.
- Requiring that investigators designated by a school are not biased toward either party.
- Requiring that both parties be made aware of their rights and the resources and options available to them.
Senior Director for Title IX and ADA Coordinator at Stony Brook University, Marjolie Leonard, wrote in an email sent through the university media relations office that the proposed changes would not impede the Title IX office’s ability to function.
“As a SUNY institution, Stony Brook follows New York State law (see 129B, “Enough is Enough”) which is very comprehensive and equally protects the parties of any complaint,” Leonard wrote. “We take every opportunity, implemented multiple programs and introduced a variety of resources to educate and train our community to come forward, to ensure they understand resources and options available to them. In fact, this fall the University launched “ReportIt” to help people make a report and get information. We continue to cultivate an environment where people feel comfortable and safe enough to come forward.”
David Clark, vice president of the Feminist Majority Leadership Alliance (FMLA) on campus and a senior applied mathematics and statistics major, said that FMLA is concerned that the proposed regulations regarding cross-examination and mediation could possibly retraumatize assault victims.
“I think it might discourage people from going through the disciplinary process, particularly if they have even less confidence that it will result in a good outcome for them and perpetrators actually being held accountable,” he said. “I think it is kind of a signal from a federal level that the federal government cares more about the institutional power of schools over the rapes of students.”
Theresa Tiso, an associate professor in the women’s, gender, and sexuality studies department, also believes that DeVos’ proposals could discourage survivors from coming forward.
“I can’t tell you the number of students who come forward and tell me their situation, and I’m not asking for it,” Tiso said. She credits the 2011 “Dear Colleague” letter for helping to increase the number of sexual harassment and assault cases that get reported.
The “Dear Colleague” letter, released by the Department of Education under former President Barack Obama, expanded Title IX’s scope and defined sexual harassment as a form of gender discrimination under Title IX that interferes with students’ right to an education.
The letter expanded schools’ Title IX responsibilities, including the responsibility to respond to violations off campus, to process all complaints regarding sexual misconduct, to take steps to protect students assaulted off-campus from further harassment or retaliation and to investigate possible harassment if the school knows or reasonably should know about it, regardless of whether a complaint is filed or action is requested. Many of the expansions established in the letter would be taken back under the new proposals.
Critics of the letter claimed that it did not adequately explain how to execute new regulations, and that it showed a lack of concern for due process. Senator James Lankford argued in 2016 that the letter’s regulatory changes didn’t go through the proper procedures, including a public commentary period, as required by the Administrative Procedure Act.
President Samuel L. Stanley Jr. released a statement on Friday, Nov. 30 acknowledging that the proposed changes at the federal level could weaken Title IX protections, but assuring readers that Stony Brook follows New York Title IX laws and procedures, which includes protections for both parties.
“We are serious about keeping our students safe and free from sexual and gender-based violence,” he wrote. “We are paying close attention to the federal process and will make mandated adjustments once any federal changes are finalized. However, we will remain committed to having a robust process that protects the rights of the parties and supports our goal of having a campus free from gender-based violence.”
The proposals come with a 60-day comment period that opened on Thursday, Nov. 29, and won’t take effect until the commenting period closes. Comments can be submitted through the Federal eRulemaking Portal or via mail.