The Proposed Changes to Title IX

Title IX, of the Education Amendments of 1972, is a civil rights law that prohibits discrimination on the basis of sex in the educational institutions, including colleges and universities.

In Title IX, it is stated that discrimination on the basis of sex can include sexual harassment, rape and sexual assault. On November 16th, 2018, the Department of Education released a Notice of Proposed Rulemaking. In this notice, there were adjustments to Title IX that include the definition of sexual assault, how it is reported, and the standard of proof of sexual misconduct. Betsy DeVos, the Secretary of Education, stated in September 2017 that there were many problems with Title IX, including the “broad definition of sexual harassment […] lack of consistency regarding both parties’ […] right to cross examine parties and adjudications reached by school administrators operating under a federal mandate to apply the lowest possible standard of evidence.” Some of the significant changes to Title IX are as follows:

Prior to the new proposed guidelines, the definition of sexual harassment was “unwanted conduct of a sexual nature.” The new guidelines require all institutions to define it as “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 recipient’s education program or activity; or sexual assault.” Since this definition is much more specific and narrower, a student might have to experience consistent, ongoing harassment before being accepted to report the misconduct. If the students’ experience does not meet the new description of sexual harassment, they could be denied reporting the incidents.

Currently, at La Salle University, all faculty and staff who are not listed as confidential resources are required to report any form of violations to the Policy on Harassment, Sexual Misconduct and Discrimination. The new proposed guidelines would give universities the option to limit who on their campus would be mandated reporters of these violations; therefore, if a staff member receives a report of sexual misconduct, they would not be legally required to report it. Reports made by professors, coaches or student staff would not be recognized.

The new guidelines would also give universities the option to only be held responsible for sexual misconduct incidents that happen directly on their campus. If a university adopts this change, they would have the right to deny investigating a complaint from one of their students if the incident did not take place directly on campus. Similarly, if one of the universities students is accused of misconduct, the university is not required to adjudicate the accused student.

The current standard of evidence in sexual misconduct cases is that hearing officers must determine that there is more than a 50% chance that the incident occurred to hold a student responsible. The new guidelines would give universities the option to only accept “clear and convincing evidence” in order to accept a report. This makes it more difficult to report in cases in which there are no witnesses or physical evidence.

When cases are being investigated, both the reporter and the accused are represented by an advocate. During cross-examinations, both parties would give a list of questions to their advocates who would then bring the questions to the other party’s advisor. In the new Title IX guidelines, universities are required to allow both parties to be cross-examined by the others advocate or advisor. This could cause trauma to the reporting party and could even prevent a victim from reporting the incident to begin with, in fear of being interrogated. It also gives universities the option to use “informal mediation”-without an investigation-in order to resolve incidents of sexual violence.

These changes not only make it much more difficult to report cases of sexual violence, assault, or harassment, but they also expose the victim to further trauma after reporting. These changes are not set in stone, as they are open to a comment period until January 28th, 2019. This means that education institutions have until the deadline to submit any comments or concerns regarding the guidelines. The Department of Education will read through these comments and decide whether or not to change any of the proposed guidelines. The final policy could begin to affect schools as early as February 2019.

On Wednesday, December 5th, SAVE (Sexual Assault and Violence Ends) will be hosting a Comment Writing Party in the Union Lobby from Noon until 4:30 p.m. All students and staff are welcome to come and let their voices be heard by writing down your concerns about the changes. All of the comments will be collected and submitted to the Department of Education by December 21st. As Laura Cilia, Title IX Advocate/Educator and advisor of SAVE at La Salle University stated, “While most community members at La Salle are not directly affected by Title IX, perhaps put yourself in the shoes of a friend, classmate, coworker, or relative that may be affected by sexual violence. You have the power to become educated and have your voice heard around this important issue.” We hope to see many students on Wednesday expressing their opinions of the new guidelines.