So Many Questions: A Brief Look at Betsy DeVos’ New Title IX

You would think that a global pandemic would not be the ideal time to release a myriad of changes to legislation that directly effects the way colleges and universities handle campus sexual harassment.

Enter Department of Education Secretary, Betsy DeVos and 2,033 pages of new regulations to the 1972 Title IX of the Education Amendments.

Title IX is the Federal civil rights law that prohibits sexual harassment, discrimination and violence in educational institutions and programs that receive federal financial assistance. Secretary DeVos’ regulations serve as the most drastic changes to the law since its inception, 47 years ago. With Covid-19 causing colleges and universities nationwide to scramble in coming up with plans to reopen their campuses in the fall semester, they now have the task of updating their student conduct policies to be in compliance with the new Title IX regulations, set to take effect on August 14th. While many question the necessity of these changes, the Department of Education’s official stance is that the regulations are necessary to “balance the scales of justice on college campuses.”

Supporters of the regulations are quick to point out that the changes strengthen due process and protect the rights of the accused in campus sexual misconduct hearings. In the words of Assistant Secretary of the Office of Civil Rights, Kenneth Marcus, “the rules seek to serve students on either side of a sexual misconduct complaint, marking the end of the false dichotomy of either protecting survivors, while ignoring due process, or protecting the accused, while disregarding sexual misconduct.” On the other side of the argument, critics point out that the new rules will make institutions less accountable for the actions of their students and faculty, will make the reporting process unnecessarily difficult for victims and will cause victims to continuously relive their trauma.

The division in criticism and support can be seen throughout the regulations. For example, in regard to reporting instances of sexual harassment, colleges have greatly made use of the mandatory reporter model, which essentially makes all members of the staff and faculty responsible for reporting instances of sexual harassment to the campus’ Title IX coordinator. The new regulations attempt to tone this system down by instead requiring only those on campus designated as “officials with authority” to be required to report. The Department justifies this change by stating that if students can confidentially disclose sexual harassment experiences with campus employees, more students will be inclined to share. Students will know they have greater control over the reporting process, which will ultimately lead to more reports.

While the Department’s reasoning for this change seems to be valid on its face, such a change makes it easier for colleges to ignore instances of sexual harassment when it suits them. In many instances, the perpetrators of collegiate sexual harassment are high profile and prominent students in the campus community; the types of students a university would not want in the national news on sexual harassment charges. One need look no further than Florida State University and former Quarterback Jameis Winston, [JS3] for an example of an institution selectively ignoring a Title IX complaint to protect their interests; in this case, a championship football season.

And while the purpose of this change is (supposedly) to encourage more Title IX disclosure, limiting the number of officials a student can make an official report to, can easily have the opposite effect. In my 5 years of doing guest lectures regarding campus sexual assault prevention for undergraduate fraternity and sorority members in schools all through the southeast and Midwest, I’ve yet to meet a single student that is able to identify their school’s Title IX officer. Most of the students are not even aware of what Title IX is. So while the Department may think that simply walking into the Title IX coordinator’s office, in the midst of trauma, to report is a simple process, it may be a little more difficult in practice.

Luckily, with this regulation, institutions are given a great deal of autonomy when it comes to who they select as officials with authority. There is also no limit on how many employees a college may select. If an institution decides to maintain all the members of their staff and faculty as officials with authority, the broadness of the regulation would permit them to do so.

Elsewhere in the regulations, there are substantial changes to the adjudication process for Title IX incidents. Before the regulations, student conduct hearings resembled the court trials of our judicial system. Complainants and respondents would come before a hearing board comprised of students, staff and faculty to argue their side of the incident. Witnesses could be called and cross examined by the main parties in the case. Closing statements were made by each side and then it was up to the hearing board to judge the case, making recommendations for punishment when necessary.

The parties of the case were usually allowed to have advocates in their corner during the hearings. In many cases, these advocates were attorneys, fellow students or family members. While advocates were permitted to communicate with their student, they were not permitted to play an active role in the proceedings.

Under DeVos’ new regulations, the role of silent advocate changes in a major way.

Advocates will have an active voice as they are required to handle any cross examinations during the hearing. They will also be able to ask follow up questions after the complainant or defendant give their statements. Critics of this regulation point out that as parties are permitted to select virtually anyone to play the role of advocate, victims of sexual assault will now have to relive their trauma as this cross examination could be administered by their attacker’s parent, fraternity brother or sorority sister or the attacker themselves.

While critics aren’t necessarily wrong about advocate-led cross examinations drudging up trauma for victims, it should be noted that at many schools, the prior adjudication process allowed cross examination questions to be asked only by the opposing party. In prior hearings, complainants and respondents addressed each other directly. Victims being questioned by their attackers has already been happening. And as these students are typically untrained in composing a cross examination, many times the questions they ask tiptoe down the line of decency. Therefore, there is hope that, by permitting advocates to cross examine, hearings will actually be less traumatic.

The larger problem with giving advocates such an enhanced role in the student hearing process are the inequities in representation that arise due to the resources students have available to them. A student that is unable to afford an attorney is at an immediate disadvantage when opposing a student that is represented by a lawyer. Knowing this disadvantage exists could very well discourage students from reporting in the first place. While students cross examining each other is a sloppy process at best, at least it provided a somewhat level playing field.

Universities have the opportunity to remedy this issue by making school issued advocates available to students. Utilizing a pool of local attorneys looking to fulfill pro bono hours could provide students with advocates that know how to adequately perform a cross examination, thus giving them the best chance for equal representation. Upper-level law students looking to fulfill public service hours could also be utilized to serve as advocates; either on their own or sitting second chair to more experienced attorneys.

Regardless of who institutions use to fill this role, intensive training is a must. Advocates must not only know the Title IX legislation, but they also must be familiar with the university student policies as well. And for advocates who are not regulars in a court of law, basic training on conducting a cross examination is also necessary. Lastly, schools must make sure they are selecting nonbiased advocates, because if you offer this service to a complainant, you must also offer it to the respondent. School-issued advocates can find themselves on either side of the case and as such, must be able to vigorously advocate for either side. Failure to do so will most certainly lead to claims of ineffective representation in appeal hearings.

Perhaps the most controversial change to Title IX is that sexual harassment incidents that happen off campus property, will no longer fall under the Title IX jurisdiction.

You read that correctly.

From now on, sexual harassment incidents that transpire in the bathroom of the campus-adjacent bar, in a Panama City Beach hotel room on spring break or on a dirty futon in an off-campus apartment, must now be automatically dismissed under Title IX. While the outrage over this regulation should be obvious, here is a statistic to put it into perspective: only 8% of University-related sexual harassment incidents happen on campus. As such, critics are quick to point out that colleges now have an invitation to ignore the overwhelming majority of incidents that happen to their students.

Another subsection of this regulation states that incidents that did not occur against a person in the United States must also be dismissed under Title IX. This directly effects students participating in study abroad programs as the incidents of sexual harassment they encounter outside the U.S. will now automatically be dismissed as well.

While on its face, this regulation appears restrictive, there is a catch. Although off- campus sexual harassment must be dismissed under Title IX, universities may still use other areas of their student conduct code to investigate and adjudicate these incidents. Organizations such as the Association of Title IX Administrators have encouraged institutions to create overarching harassment and discrimination policies that would also cover sexual harassment and sexual discrimination. And given this new regulation to Title IX, now is the time for universities to update their conduct codes to protect students where Title IX now refuses to do so.

But updating existing policy is not enough. Colleges must be more transparent than ever with their procedures. When critics of the regulations produce “Know Your IX” literature, many neglect to inform their readers that these off-campus incidents will still be investigated under different parts of the student code of behavior. As such, the belief that off-campus incidents will now go uninvestigated will certainly lead to a decline in reporting these incidents. Campuses must be clear and intentional in letting students know exactly how off-campus sexual harassment will be handled.

There are many other regulations in DeVos’ 2,033-page release that have sexual assault advocates and due process supporters arguing over if the new regulations are helpful or hurtful. Perhaps a better question is, are they necessary? If universities still have the option to designate their entire staff as officials with authority, is it necessary to have a regulation that, on its face, moves universities away from the mandatory reporter model? If colleges are still encouraged to investigate off campus sexual harassment through other parts of their student conduct code, then why remove these incidents from Title IX jurisdiction to begin with? Do these regulations truly give more fair treatment to the accused? Or do they provide colleges and universities a convenient door to escape responsibility and liability? Were these new regulations truly needed? Or is this an attempt to create a legacy by an Education Secretary, nervous about the outcome of a coming election and the security of her job? The questions these new regulations raise are plentiful.

While a handful of organizations and even attorneys will claim to have it all figured out, we truly will not know the answers until the 2021–2022 school year. Once students are permitted to fully return to campus, we’ll be able to see the true effects of these regulations. Until then, universities have a duty to their students, to prepare themselves as much as the can before the fall semester. While reopening plans are rightfully at the forefront of campus priorities, Title IX coordinators need to do all they can to interpret and educate their campus on these regulations. So attend the webinars, Zoom Calls, work groups and e-trainings; because school starts soon. And there will be questions.