A Title IX Coordinator's Perspective on the Dept of Education's New Federal Guidance on Title IX

A Title IX Coordinator who wished to be anonymous sent us this statement regarding the new federal guidance on Title IX. 

The Department of Education just released the draft of the new federal guidance regarding Title IX and college campuses.

The new guidance comes after a year of speculation about what changes are in store for colleges. Betsy DeVos, the U.S. Secretary of Education said, "Throughout this process, my focus was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment. That starts with having clear policies and fair processes that every student can rely on. Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined." DeVos goes on to say that the changes were prompted by gathering input from students, advocates, school administrators, Title IX coordinators, and other stakeholders.Some of the proposed changes include a requirement for colleges to respond meaningfully to all reports of policy violations, an elimination of "single investigator" investigations to ensure impartiality, the presumption of innocence until the finding has been made, and the need for interim protective measures for both parties. Other proposals, however, include a more restrictive definition of sexual harassment and the requirement for colleges to hold live hearings where cross-examination would be conducted.

Some of these proposals are helpful. They provide impartiality and measures that would help keep both parties safe.

Some of these proposals are helpful. They provide impartiality and measures that would help keep both parties safe. However, many colleges will be concerned about the change in definition of sexual harassment. The proposed definition reads, "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 school's education program or activity." This is quite a change from many policy definitions, which may read in various versions, "Unwelcome communication or conduct of a sexual nature. Sexual harassment may consist of repeated actions or may even arise from a single incident if sufficiently extreme." We see from the slight change in wording that a single act of unwelcome conduct may not qualify as objectively offensive. This also leads me to question how any behavior can be deemed objectively offensive.

Another issue that may arise will be how hearings are conducted. If cross-examination is required, or at least encouraged, this can be done by outside advisors. For all the complaints in the public about colleges trying to make Title IX cases legal when they are not being conducted by attorneys, this particular requirement seems to force colleges even farther into the legal arena, which can tie the hands of administrators trying to enforce their institution's policy.

I want to give all parties of reports some words of hope. First of all, most colleges will continue to provide equitable treatment to everyone, regardless of what we hear in the news. The colleagues I work with continue to put our community first. We want to help survivors, and we also want to provide equity for both parties.

Furthermore, the entire process may become so cumbersome that survivors are even more reluctant to come forward. In light of the Brett Kavanaugh hearings and now this proposal, many survivors may feel there are even fewer reasons to report sexual and dating violence. As a Title IX Coordinator, I want to give all parties of reports some words of hope. First of all, most colleges will continue to provide equitable treatment to everyone, regardless of what we hear in the news. The colleagues I work with continue to put our community first. We want to help survivors, and we also want to provide equity for both parties. Second of all, I believe most institutions take very seriously the role of resolving reports of sexual and dating violence. Some states, such as Illinois, continue to require a "preponderance of evidence" standard in Title IX cases, which is lower than the "clear and convincing" standard recommended by federal guidance. Illinois also still requires training for all investigators in Title IX cases that addresses victimology, stressing that victim-blaming should never occur. Third, our voices can still be heard. There is a 60-day time frame when feedback can be provided to the Department of Education. I encourage everyone to take the time to give the feedback. Make your voice known. Share your own experiences, and let's trust the process.

We've come so far, but we still have work to do. We still can advocate for better practices in Title IX cases. Stand up. Speak out. Be heard.