New Title IX regulations came into effect August 14, potentially shifting policy away from the survivors to the accused
CW: discussion of sexual assault and harassment
Regarded by many in higher education as a shift away from survivor-centered policy, the Department of Education released updates to Title IX Policy in May 2018, and Reed adopted them into its Title IX policy on August 14th, 2020, the deadline set by the department.
On February 22, 2017, the Department of Education (DoE) rolled back two guidance documents which the Obama administration had implemented to further protections for students against discrimination. The Department of Justice states that “Both withdrawn documents took the position that Title IX’s prohibitions against discrimination on the basis of sex require access to sex-segregated facilities on the basis of gender identity rather than biological sex. The Departments have decided that they need to consider further and more completely the issues involved and will no longer rely on the views expressed in the documents. The new guidance document affirms a commitment to enforce Title IX to protect all students, including LGBTQ students, from discrimination, bullying and harassment.”
After this rollback in 2017, the Department of Education released a preliminary proposal for a revised Title IX rule in November of 2018, just before colleges went on holiday for Thanksgiving, and opened a 60 day comment period for the public. After the 62 days, (the 60 day period was extended due to unavailability over January 16-17th), and more than 104,000 comments, the Office of Management and Budget reviewed the Title IX rule. In May 2020, the DoE released the final rule and gave colleges and universities across the country until August 14 to enact the new legislation.
One of the main changes to the Title IX regulation includes the formal definition of sexual harassment. The definition in Reed’s policy now states that sexual harassment is “Conduct on the basis of sex that satisfies one or more of the following:
An instance of quid pro quo harassment by a Reed employee;
Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to Reed’s education program or activity; or
Sexual assault, dating violence, domestic violence, or stalking as defined by this policy.”
The DHSM policy states that an act is classified as discriminatory harassment “if it creates a hostile environment. Harassment creates a hostile environment if it is sufficiently severe, pervasive, or persistent that it either (1) denies, interferes with, or limits a person’s ability to participate in or benefit from the College’s programs or activities; or (2) creates a learning, working, or living environment that a reasonable person would consider intimidating, hostile, or offensive.”
Rowan Frost, Sexual Health, Advocacy, and Relationship Education (SHARE) Program Director, encouraged students to consider the implications that come with the change from “pervasive or persistent” to “pervasive and objectively offensive.” She also highlighted the term “objective” saying, “And what does objective mean? Like is objective a 60 year old white woman, or is objective an 18 year old transgender student of color? Whose viewpoint is objective?”
Frost expressed concerns about the use of the phrase “effectively denies a person equal access to Reed’s education program.” “Basically, you need such a huge standard of proof that it’s going to make it very difficult,” Rowan said. “If I was sexually assaulted by someone, being in the same classroom with that person is going to be a problem for me. But underneath Title IX it’s like, well, you can be in that classroom, it’s not like they’re gonna sexually assault you again in the classroom, you know, no one’s denying you the right to education so therefore it’s not a violation. It makes it very hard for people to get the kind of support that they need.”
Alongside the new definition, the new updates stipulate that cases must now undergo a live hearing, in which both respondent and complainant (an individual alleged to have violated College policy, who has been named as such in a report or a formal complaint and an individual who makes a complaint, respectively) are cross-examined. In this case, Rowan said, “the reality is that almost always the person who’s accused has more resources than the person who’s doing the accusing, and the person who’s accused almost always has an attorney, and usually a really good criminal attorney. So, if the person doesn’t have an advisor, the college must appoint an advisor to them. So if I’m a survivor, I don’t have an attorney of my own because I didn’t do anything wrong. Why do I need an attorney? Also attorneys are expensive. The college has to appoint someone who will do the cross examination on my behalf. But the college hasn’t decided yet…it’s incredibly unreasonable to assign a staff person or a faculty person to conduct the cross examination…especially when the other person probably has an attorney who’s trained in cross examination. Our faculty and staff are not trained in how to conduct cross examination in a sexual assault case. So, I’m really worried about that.”
Chris Toutain, the new Title IX and 504 Coordinator, also expressed concerns, saying the policy change “will require institutions to build capacity in new and challenging ways. An example of one of these changes that many are concerned about is the requirement for direct cross-examination through advisors during disciplinary hearings. Expanded, active roles of advisors in these processes raise the potential for equity concerns when we think about the ways that individuals will experience and navigate these processes.”
This summer Reed put together a working group of students, faculty and staff to address the new regulations and ensure that Reed complied with Oregon state law, Title IX, and the Clery Act (which concerns the disclosure of statistics about campus crime). Now, Reed must decide how best to revise the DHSM to align with Title IX while still protecting its students.
“We recognized that we were still going to need to go back and work on the DHSM this year, and so we narrowed the focus for Title IX to make sure that we were only doing what was required to comply with Title IX law,” Frost said. “So that’s why the title and policy is very narrowly written; we’re hoping to…align them.”
Since his arrival mid-summer, Chris Toutain has found that Reed is a “highly engaged community that is very much committed to teach critical thinking, and that I think is going to be a benefit in terms of bringing stakeholders from across the community together to work with the policies and procedures that we have, so that we can so that we can identify any adjustments that we think need to be made in order to have something that is compliant and the best fit for Reed.”
Reed has also decided to hire an outside contractor for the adjudication process. “The outside person, they’re the decision maker, but they’re going to have their decision validated by the Vice President of Student Services,” Frost said. “So there’s a finding of responsibility by the outside company, any sanctions will be determined after consultation with the sexual misconduct board. So the outside people aren’t going to be determining the sanctions, that will still be the responsibility of Reed, but they’ll be making the decision and then that will be validated by the vice president.”
Beside the actual content of the Title IX updates, the timing of its release concerned academic institutions, especially given the current global pandemic. “This [is an] attempt to silence people [as they] finally released the new regulations [that] we had been anticipating them dropping since January… in May, after everybody had gone home,” Frost said. “And required us to implement the new regulations within 90 days which is the statutory minimum; they could have given us longer, but they chose to only give us 90 days.”
Frost hopes that students are aware of available resources, and she recommended that students read the updated policy and reference the guiding documents of organizations such as Know your IX. Frost also stressed that there will also be opportunities to give input regarding the DHSM and Title IX on campus, and she encourages students to pay attention to those events. “Please, you know, get involved, read what they have to say, question them hard,” Frost said. “We will continue to be able to provide support for survivors. In fact, we may be able to increase that because Title IX now says specifically that we have to provide the supportive measures free. People who don’t want to get involved with the Title IX system or the DHSM system can continue to come to advocates, there’s a lot that we can do as advocates to help them access the same supportive measures.”
Chris Toutain echoed Frost in encouraging students to get involved in the DHMS and Title IX policy revision process. “I think there’s going to be a lot of opportunities particularly this fall for people to help us shape our… policy and process moving forward,” Toutain said. “We’re going to be creating opportunities for folks to both learn about where we are now, and to also provide feedback, and engage in where we are headed.” Toutain will be providing more information regarding Title IX updates during the public Senate meeting on Monday, September 21.
Confusion is a concern for both Frost and Toutain, and it is easy to see why. The conflict between DHSM and Title IX and changes to adjudication alone are fraught with potential complications that will impact students across Reed. In a 2018 press release regarding Title IX, Betsy DeVos said the changes in the name of “fair processes.” But the question remains, and awaits Reed’s answer, fair for who?