The U.S. Department of Education released a rewrite of the Title IX federal civil rights law last November, with a focus on narrowing the law’s reach and raising the bar on the standards used in the process.
The rewrite may have been intended to streamline the law, but it seems more like an attempt to oversimplify a very complex issue and reduce the responsibility of university officials in dealing with sexual harassment affecting its students. Additionally, it seems like it would make filing allegations more difficult for survivors and create unnecessary hurdles in the adjudication process.
Ultimately, it’s important to consider that these are just proposed changes and may change, and that legal interpretation is necessary to understand their full extent. However, the wording in the proposal suggests that the changes would be seriously detrimental to sexual harassment survivors.
Definition of Sexual Harassment
Currently, Title IX requires that an instance of harassment be “sufficiently severe, persistent or pervasive” to necessitate a complaint. The change would alter this specific section’s wording to be harassment “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” The new definition would also cover “quid pro quo” harassment and Clery Act definitions of sexual assault.
If a complaint does not meet these requirements, it will not be reported under Title IX.
The wording change raises the bar for what is legally considered as harassment, which could make it even harder for survivors of sexual harassment to come forward. Even if they do step forward, this higher standard gives universities wider latitude in refusing to investigate an incident.
A few phrases stand out as particularly problematic. For instance, “effectively denies a person equal access to education” is an incredibly broad yet rigid standard. There is no precise way to measure if someone’s access to education is denied. Also, the term “objectively offensive” is highly vague, and it’s an unreasonable standard because the impact sexual harassment has on someone is fundamentally subjective.
These changes severely diminish the survivor’s experience in the eyes of the law, implying that those who have experienced harassment aren’t “objective” enough to say when it is severe. They also add to a narrative that false or frivolous sexual assault allegations are prevalent, when this is demonstrably not the case.
This alteration affects what claims the university is required to investigate. Currently, universities are required to investigate any off-campus event that may have an impact on campus. However, under the proposed changes, the university will only have to investigate situations where it “owned the premises; exercised oversight, supervision, or discipline; or funded, sponsored, promoted, or endorsed the event or circumstance.”
This means that an assault that occurs at a private, off-campus event, even between two students, would not require university intervention, which heightens the risk for students not living in university-affiliated housing. Also, as reported by Technician, this requirement would not apply outside the US, and thus could harm the large number of students who participate in Study Abroad.
This change further reinforces the notion that universities will increasingly be allowed to shirk their responsibility in matters of sexual assault. This makes universities a more hostile environment for both survivors and any students who worry they will be sexually harassed and unable to take action.
The next change dramatically shifts the burden for reporting sexual harassment from the university to the survivor. Under current policy, the university must act if any responsible employee — one deputized to take action on sexual harassment complaints — knew or should have known about a complaint. Under the proposed change, universities would only have responsibility to respond to a written statement signed by the complainant.
Needless to say, this change absolves the university of much of its responsibility for addressing sexual assault. Simultaneously, it places a large and intimidating burden on survivors, having to identify a university employee with authority over Title IX disputes, write a statement that makes a claim of sexual harassment and send it to them. During a period as stressful as that following an assault, the university should be trying to comfort survivors, not deliberately push them out of their comfort zone to make themselves heard.
This policy also dramatically reduces survivors’ capacity for anonymity. Forcing them to associate their identity in such a concrete form with the incident threatens their right to privacy in a way that may discourage them from stepping forward.
Live Hearing and Cross-Examination
Under the new proposal, cross-examinations and formal interrogations must be offered, which is a departure from the previous rule set, which allowed but did not require them. According to Inside Higher Ed, lawyers and Title IX experts have pointed out a host of potential issues.
The proposed hearings are likely to extend the amount of time to adjudicate claims beyond the already lengthy process. These hearings can also be emotionally draining, embarrassing and even traumatizing for survivors, not to mention eat up more of their and witnesses’ time. This stress could push fewer witnesses to testify and fewer survivors to pursue their claims. Brett Sokolow, the president of the Association of Title IX Administrators, predicted a 50 percent drop in reports, cutting into already minuscule reporting rates.
Overall, the change, although couched in terms of making the process fairer, would only lead to fewer reports of harassment and more stress for those who still decide to come forward. This heightened scrutiny also furthers the larger tendency to meet survivors of sexual assault with disbelief, rather than the support they need.
Standard of Evidence
Title IX investigations can currently use two standards of evidence: preponderance of evidence or clear and convincing evidence. They differ in their relative strength; the former is often referred to as having a 51 percent certainty, while the latter is more around 75 percent certainty.
The proposal would change this situation so that universities would have to pick one of these to use with all code of conduct violations that carry the same maximum penalty, and they would have to apply this standard in conduct cases against both faculty and students. In effect, this would force NC State and other schools in the UNC System to use the clear and convincing standard for Title IX claims, since one existing regulation for the discharge of tenured faculty requires this standard.
This policy is especially misleading, in addition to — like many of the other changes discussed — being vague on how it should be implemented. The language gives an appearance of choice, when in fact a number of institutions will find themselves in the same place as NC State, being forced to use a far more difficult evidence standard for claims of sexual assault.
This change is also especially harmful for Title IX disputes, which often involve only the accuser and accused and so have difficulty reaching the very high threshold of clear and convincing evidence. The perennial argument that these standards are necessary is undercut by the fact that under current standards, vanishingly few claims of sexual assault are fraudulent, so making it still more difficult to prove a case is not addressing a pressing issue. It is, however, further limiting the university’s responsibility to address the safety concerns of its students.
This unsigned editorial is the opinion of Technician’s editorial board and is the responsibility of the editor-in-chief.