Title IX is Changing

The Trump administration has proposed substantive changes to Title IX. When these are finalized, Reed will have to change its sexual misconduct policy, investigative practices, and judicial board processes.

Among the proposed changes are substantial limits as to what can be considered a Title IX violation. The new definition of sexual harassment will include only conduct that is so “severe, pervasive, and objectively offensive” that it denies the target access to education. Schools will only be able to respond to sexual harassment and assault that occurs on campus or at a school-sponsored event. Each school’s sexual harassment policy must state that it only applies to people inside the United States and to behavior within the United States (sponsored travel or study abroad will be exempted). And the new rules eliminate Title IX protections against harassment and discrimination because of failure to conform to stereotypes of masculinity and femininity.

There are also substantive changes to allowable response processes. Schools will not be able to investigate or adjudicate reports of sexual harassment or assault unless the target of the behavior signs a complaint or unless the school is aware of multiple reports against the same respondent.

The college must permit the complainant and respondent to cross examine all parties in live hearings (although the parties do not have to be in the same room). Cross examination may include questions about a complainant’s sexual life if they are intended to exonerate the accused. Failure to answer all “relevant” questions means that none of that person’s evidence may be considered by the decision maker (if a survivor refuses to answer one question, all of their statements are effectively thrown out).

Mediation or other informal resolution will be permitted in all cases if both parties consent, but there is no requirement that the mediators be trained to safely work with sexual assault cases.

What impact can we expect from these changes? While there has not been enough time to think through all potential repercussions, we know a few things will happen. The reporting rate will go down because sexual discrimination that can be considered is severely limited. Survivors will be less likely to seek justice because of greater risk of retraumatization during judicial processes. While schools like Reed may continue to protect people who experience harassment and sexual assault in ways that Title IX does not, the greatest burden will be on students who attend public institutions, and those who do not have a lot of resources: that is, on the most vulnerable.

The release of the proposed changes was timed to minimize the amount of input that students can provide before the changes take effect. The 60-day federal comment period began November 19, 2018 and ends January 28, 2019. Student feedback is important, because the Department of Education must reply to all substantive, unique comments (although they are not required to make changes). This means that signing a petition or submitting template comments is not enough. Rather than try to reply to the entire proposal, or submit a generic comment, find one or two issues that are particularly important to you, and write a separate comment addressing each specifically. For a breakdown of some of the issues, and for suggestions on how to write an effective comment, here are a couple of resources: itsonus.org/titleix and knowyourix.org/notice-comment-2018/submit-a-comment

The views expressed here are my own and do not necessarily represent those of the College or anyone else. Please know that Reed will continue to provide support for those affected by sexual harassment and assault. There are many resources and accommodations that don’t require a formal report. For more information, refer to the website (reed.edu/sexual_assault), or speak with me or another confidential SAPR advocate.

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