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New Title IX regulations will change how Brown responds to sexual misconduct cases

Federal rule offers narrower definition of sexual harassment, allows for live cross-examination of witnesses, will take effect August 14

By
University News Editor
Wednesday, May 13, 2020

On May 6, the U.S. Department of Education released long-awaited regulations that will change how schools can address complaints of sexual misconduct on college campuses under Title IX. 

Title IX, a federal law passed in 1972, “prohibits discrimination on the basis of sex in any education program or activity that receives federal funding.”

The new Title IX guidelines require colleges to hold live hearings during cases of alleged sexual misconduct and narrow the legal definition of sexual misconduct, limiting which incidents academic institutions are required to act upon. The regulations also allow colleges to use a higher standard of proof than was previously required in sexual misconduct cases. During live hearings, the guidelines now permit the cross-examination of all witnesses — including the complainant and the respondent. 

Unlike previous Obama-era Title IX guidelines, U.S. Secretary of Education Betsy DeVos’ final regulations carry the full force of the law. Colleges are required to comply with the new ruling by August 14.

The initial draft of the Title IX regulations — which were proposed by the DeVos in November 2018 — elicited over 120,000 public comments from individuals and institutions during a 60-day public comment period. President Christina Paxson P’19 submitted a public comment on behalf of the University in January 2019 and recommended several changes to the proposed Title IX regulations, The Herald previously reported

A number of requirements in the final Title IX regulations will result in changes to the University’s current policies and procedures surrounding sexual misconduct complaints, Paxson wrote in a Today@Brown announcement May 7. 

For example, the requirements could impact how the University defines sexual harassment, Paxson said. The new Title IX regulations use the Supreme Court’s definition of sexual harassment, which is unwelcome conduct that is “so severe, pervasive and objectively offensive that it denies a person equal educational access.” Under the Obama administration, sexual harassment was more broadly defined as “unwelcome conduct of a sexual nature.”

Under the new definition, sexual assault, dating violence, domestic violence and stalking would constitute sexual harassment, said Rene Davis, the University’s Title IX program officer.  Previously, these behaviors were not explicitly included in the DOE’s definition of sexual harassment. 

The new definition “really changes the threshold that (a complainant) would have to establish in order to say that something created a hostile environment,” Davis said. “A lot of people in advocacy groups feel like the standard around sexual harassment has been raised so high so that no one is ever able to meet that standard.” 

The University can “hold people accountable” even if their actions do not reach the level of creating a hostile environment, Davis said. “These regulations are really pushing us to think about bad behavior and discriminatory conduct and how an institution is going to respond to both,” she said, adding that behaviors which do not meet the standard of discriminatory conduct could still be addressed through a “process for problematic and inappropriate behavior.”

The new regulations also require colleges to hold live hearings during which complainants and respondents may be submitted to a live cross-examination by students’ advisors or legal counsel. Institutions must guarantee that both parties may retain an advisor without a monetary cost to either party. 

Before the COVID-19 pandemic, the University’s formal Title IX complaint process included a live hearing during which the accused and accuser were placed in separate rooms and remotely connected to the hearing through Zoom. Davis added that the remote format of the live hearing is a “trauma-informed best practice” that ensures equitable access to the hearing while respecting that it may be triggering for either party to be in the same room. 

Following the submission of a written complaint to the University, the Title IX office appoints an impartial investigator to interview witnesses and gather information on the sexual misconduct complaint. Once an investigation report is finalized, a three-member hearing panel convenes to ask questions related to the investigation report and reach a decision, based on majority vote, on whether the respondent has violated University policy. Under the University’s current procedures, a party’s legal counsel is not allowed to participate in the live hearing.

The University currently uses paper-based cross-examinations to allow the complainant and respondent to present additional information before the investigator’s report is finalized. This process directly conflicts with the new regulations, which allow for a student’s attorney to cross-examine parties and witnesses involved during the live hearing. 

These new cross-examination standards could discourage people from reporting cases of sexual misconduct because “many survivors are really traumatized by the idea of having to face their abuser again, especially in a legal setting,” Anchita Dasgupta ’21 told The Herald. 

Another aspect of the new regulations allows educational institutions to select one of two standards of evidence — the “preponderance of evidence” standard or the “clear and convincing evidence” standard — but stipulates that the same standard must be used across all disciplinary proceedings for students, faculty and staff. 

The University currently employs a preponderance of evidence standard — in which more than 50 percent of evidence must point to a conduct violation — when deciding the outcomes of all disciplinary proceedings, including sexual misconduct or other breaches of community standards, Davis said. The “clear and convincing evidence” standard would set a higher burden of proof.

DeVos’ new rule also changes the scope of sexual misconduct incidents upon which colleges are required to act. Institutions must address complaints of misconduct that occur within an educational program, including off-campus housing for recognized Greek life organizations. But colleges may still “address sexual harassment affecting its students or employees that falls outside Title IX’s jurisdiction in any manner the school chooses,” according to the regulation. 

The University will still have discretion in other aspects of its sexual misconduct proceedings, Paxson wrote. For example, the regulations “retain a school’s ability to choose to offer informal resolution options, including restorative justice and other remedy-based approaches to resolving complaints of sexual harassment and sexual violence,” she wrote. Paxson added that the University will seek input from the Brown community on key decisions where Brown will have discretion.

Given empirical evidence that sexual misconduct is already underreported on college campuses, DeVos’ ruling could exacerbate the persistence of this problem, Dasgupta said. The Obama administration’s Title IX guidance “was not enough to make people feel secure on campuses and this new law is a step in the wrong direction,” she added, “it’s taking away the agency from survivors.” 

In light of the new regulations, the University will remain “committed to a process that is equitable, responsive to the needs of both parties and inclusive, and it is that commitment that will guide us as we consider the specific implications of the final regulations for our campus,” Paxson wrote to the community. 

Paxson added that the University will “be sensitive to any change that would deter students from reporting incidents of sexual misconduct, an area in which the Brown community has made progress in recent years.” 

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