Proposed changes to Title IX rules could impact campus policy

Arrington Luck

On Nov. 16, the Department of Education released its proposed changes to existing Title IX regulations. Citing a need “to ensure that Title IX grievance proceedings become more transparent, consistent and reliable in their processes and outcomes,” the proposed rules would lessen schools’ responsibility in handling cases of sexual assault and harassment. While proponents of the changes say that the new rules would protect due process, critics say that they would make campuses less safe for survivors of assault and harassment and disincentivize students from reporting incidents of sexual assault and harassment.

While the text of Title IX, only a sentence long, states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” court rulings and Department of Education-issued guidance have clarified and expanded the protections of the law.  

“Title IX is that students may not be denied educational opportunities based on their sex – a principle that applies to the wide range of activities offered by schools, including admissions to, and financial aid for, post-secondary institutions; student services and counseling; and athletics and physical education,” according to a Department of Justice report on the 40th anniversary of Title IX.

In 2011, President Obama’s Department of Education Office of Civil Rights issued a “Dear Colleague” letter seeking to reaffirm and restate the responsibility colleges have with regard to dealing with sexual assault and sexual harassment, building off of guidances issued in 2001. Unique in the Obama administration’s letter was the requirement that schools abide by the set guidances or risk the loss of federal funds and face potential litigation by the Department of Justice. “When a recipient does not come into compliance voluntarily, OCR may initiate proceedings to withdraw Federal funding by the Department or refer the case to the U.S. Department of Justice for litigation,” the letter stated.

Proposed changes put forth by Secretary of Education Betsy DeVos would affect colleges nationwide that receive federal funding. This includes Williams College, which receives federal funding for financial aid and research grants, among other purposes.

On Jan. 15, Meg Bossong, the College’s director of sexual assault prevention and response, and Hannah Lipstein, the College’s violence prevention coordinator, hosted teach-ins about the proposed changes to the Title IX rules. At the teach-ins, Bossong and Lipstein presented the College’s current disciplinary policies toward handling sexual assault and sexual harassment on campus and provided information on how to leave a comment on the proposed changes.  

At the teach-in, Bossong and Lipstein distributed a packet that highlighted the proposed deviations from previous Title IX rules, as well as the ways in which the College would or would not have to alter its disciplinary policies to act within the proposed rules. It defined 12 areas of proposed changes, some of which the College is already in compliance with.

In the following cases, the College would have to make changes to its existing disciplinary policy and the ways in which it deals with reports of sexual assault and harassment on campus.

First, the proposed rule changes would narrow the definition of sexual assault and harassment on campus. The guidances issued in 2001 – those in effect after the 2017 repeal of Obama-era guidances – stated, “Sexual harassment is unwelcome conduct of a sexual nature. Sexual harassment can include unwelcome sexual advances, requests for sexual favors and other verbal, nonverbal or physical conduct of a sexual nature. Sexual harassment of a student can deny or limit, on the basis of sex, the student’s ability to participate in or to receive benefits, services, or opportunities in the school’s program.” The new definition under the proposed rules 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 recipient’s education program or activity.” This would significantly impact the ways in which the College handles relationship abuse and stalking. According to the proposed rules discussion guide, “It essentially creates another category of non-Title IX interpersonal misconduct.” 

The proposed changes would also affect what would have to be done to trigger the Title IX process.  While incidents could previously be reported to people the College deemed “responsible employees,” the changes force incidents to be reported directly to a Title IX coordinator.

Under the proposed rule changes, support measures are classified as “something offered to students who report harassment,” regardless of disciplinary investigation. The new rules mandate that measures be non-disciplinary and non-punitive prior to a disciplinary process. “The proposed rules require only that accommodations be designed to restore access to the educational program, not that they actually do,” the proposed rules policy guide states.   

The proposed rules would also, according to the College’s Title IX discussion guide, “require that recipients must discontinue an investigation if they find that the harassment occurred outside of its programs.” Currently, all students are covered by the College’s code of conduct, regardless of residential situation. Additionally, students are no longer protected under Title IX guidelines while outside of the United States. Similar to the off-campus regulations, the College may take disciplinary action based on its code of conduct, but students will not have the same avenues of recourse that Title IX grants.

Aditionally, the proposed rule changes would require the implementation of live-hearing cross examinations. While the changes do not warrant that the complainant and respondent interact directly, the cross examinations must be done by an advisor. Refusing a cross examination makes statements and evidence provided by the person inadmissible, according to the policy discussion guide. The College does not currently employ a live cross examination model.

Another notable change, though one that would not necessarily affect the College, is the change in the required evidentiary standard. The proposed rules would give schools the option of choosing either a “preponderance of evidence” or a “clear and convincing” standard for adjudicating incidents, with the caveat that a “preponderance of evidence” may be employed only if preponderance were used in other disciplinary matters and for both faculty, staff and students.  Because the college employs a preponderance standard in all cases, it may continue to do so.

The Title IX rule changes would also reduce the requirement for response in cases brought forth by complainants who are not students of the College. Under the proposed rules, students could not seek Title IX recourse from institutions that the complainant does not attend.

Olivia Segal ’19 and Ryan Buggy ’19, of the Rape And Sexual Assault Network and the Sexual Wellness Advocacy Network, respectively, believe that the proposed changes to Title IX would not only make campuses less safe for survivors but disincentivize the reporting of incidents of sexual harassment and sexual assault. “The potential emotional distress of a live cross examination is so great that it may disincentivize going through the reporting process,” Segal said.

Segal and Buggy, who both work within their respective organizations to tackle harassment and assault on campus, acknowledged the College’s shortcomings in enforcement but firmly maintained that the proposed rules are both ineffective and in bad faith.

“Williams has good people in the right places … [but] there’s a lot of room for improvement,” Buggy said.  

“It can be challenging to work with the administration through the investigative and adjudicative process,” Segal added. She also expressed concerns with the federal administration’s motives. “It is not a coincidence that these changes were proposed right before break,” she said, referencing the timing of the rule changes with regard to the comment period. She also asserted that the proposed changes would save the Department of Education hundreds of millions of dollars. According to the federal register, the proposed changes would save the Department $286.4–$367.7 million.  

For Segal and Buggy, this is about more than just the effects of the policy. “We are in the middle of a really important cultural shift,” Segal said. “[Young people] are really taking this issue seriously.” Segal followed this up, however, with some concerns. “I’m really nervous of the role those propositions would have on the cultural shift.” 

Outside the context of the College, Buggy reinforced the importance of Title IX regulations in K-12 education, specifically for afterschool programs and school sports. “All these places where our kids are spending a lot of time,” he said, might not be protected, referencing the changes regarding off campus enforcement. Buggy also expressed concerns about the changes to reporting. “When we are lowering the bar, what happens to people of color and queer people who might already distrust their schools’ administration?” he asked. Buggy also posited that much of the Department of Education’s rhetoric surrounding the proposed changes is in bad faith. “It’s really rich that the administration believes that men are getting their lives ruined,” Buggy said, referencing the appointment of Justice Kavanaugh and the election of President Trump.

Ultimately, Buggy and Segal acknowledged that dealing with cases of sexual harassment and assault on campus are complicated, but that, by virtue of the nature of campus, action has to be taken. “There needs to be disciplinary means that can be taken on college campuses,” Segal said.