Betsy DeVos wants to change how colleges handle sexual harassment allegations, and many in Connecticut are concerned
Across the state, coordinators, victim advocates and students are trying to make sense of the proposed Title IX changes that the U.S. Department of Education released last month in a 144-page document.
Title IX of the Education Amendments of 1972 is meant to protect people from sex-based discrimination at educational institutions that receive financial assistance from the federal government. The new proposal specifically sets standards for how such institutions should respond to reports of sexual harassment and sexual assault.
The proposed changes define sexual harassment, in part, as “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,” or sexual assault, which includes rape, fondling, incest and statutory rape under the Code of Federal Regulations.
The draft changes propose that, in reaching a determination of responsibility, the educational institution be allowed to apply either the preponderance of the evidence standard — which means the complaint is more likely to be true than not — or clear and convincing evidence, which requires a higher burden of proof.
However, Connecticut law already requires the determination to be based on preponderance of the evidence.
The federal Department of Education estimates the proposal would save between 367.7 million over 10 years. The department estimates there will be fewer investigations because they will only be required for sexual harassment within an institution’s education program or activity, and the regulations would allow for formal complaints to be resolved informally, saving time for lawyers and investigators.
Some in favor of the changes are supportive because it would strengthen due-process rights for the accused; this includes groups that support those accused of sexual misconduct, like Families Advocating for Campus Equality. Others note that some aspects are in keeping with court precedent.
“Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined,” Education Secretary Betsy DeVos said in a news release. “We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas.”
The changes were published in the Federal Register on Nov. 29, and the period to provide public comment is open until Jan. 28. As of Saturday evening, 3,289 comments had been received on the docket.
The rulemaking followed listening sessions with advocates of sexual assault survivors, advocates of accused students, Title IX coordinators, attorneys, law scholars and more, according to the proposed changes.
One of the most controversial aspects would require institutions of higher education “to provide a live hearing, and to allow the parties’ advisors to cross-examine the other party and the witnesses,” the proposal states. The cross-examination would be conducted by a hired attorney or someone provided through the school. Either the accuser or the accused can request to be in a separate room and observe the cross-examination “live via technological means.”
Local Title IX coordinators react
Cross-examination “causes what is a school administrative process to look more legal in nature, more court-like, and I think that there are things that can be done to assure due process short of allowing for direct cross-examination,” said Elizabeth Conklin, who has served as Title IX coordinator at the University of Connecticut since December 2011.
For example, a UConn student can ask questions of the other party through the intermediary of the hearing officers, which Conklin considers “more trauma-informed.”
Some have expressed concern that cross-examination would give an unfair advantage to a wealthy student able to hire an attorney.
In Conklin’s experience, an attorney or other support person “can be very impactful for the student” but doesn’t have a major impact on the investigative process. But the government’s proposed regulations would provide an active role this support person currently lacks.
Conklin noted that some of the proposed changes is simply stating Supreme Court precedent, and so the school is “trying to analyze what is new or a change, versus what is a restatement of existing, fairly understood law or practice.”
In terms of prevention, one thing she would like to see more of is education around consent beginning in kindergarten, which would focus on respect for body issues, like teaching kids not to hug someone who doesn’t want to be hugged.
“If the first time they’re hearing about the concept of affirmative consent is freshman orientation, then the system has failed,” Conklin said. “That is not at all to pass the responsibility away to someone else. I think colleges and universities have an incredible responsibility to educate on these topics.”
Maria Krug, Title IX coordinator at Three Rivers Community College, feels “the accused are kind of being given an upper hand in this,” and that the changes would deter students from coming forward.
Along with having issues with cross-examination, she expressed concern with the definition of sexual harassment.
“We all perceive things very differently, and what may be severe to one person may not be so severe to another,” she said, “so how are you going to differentiate that and tell a student, ‘Oh, that’s not that severe and pervasive’?”
Conn College hosts forum
Corey Fritz, a Three Rivers student, expressed concern that the proposed definition of sexual harassment is too narrow, and said that you “can’t have schools functioning as some sort of quasi-justice system, because that’s not their job.”
As a member of the organization Students Advocating for Gender Equality, Fritz was present at the “Know Your IX” resource fair at Three Rivers on Thursday.
While the Three Rivers fair was not planned specifically in response to the proposed changes, at Connecticut College, the Office of Sexual Violence Prevention & Advocacy and the Division of Institutional Equity & Inclusion held a “Let’s Talk Title IX” event on Friday to “offer a space for explanation and discussion regarding the proposed changes.”
Conn College closed the meeting to the media, so as to not deter students from sharing their thoughts, but administrators sat down with The Day earlier on Friday.
John McKnight, dean of institutional equity and inclusion, said the general feedback he’s heard is that “it seems the pendulum has swung more to be concerned with the rights of the accused over the rights of the survivor.”
He commented that the goal of Title IX “is not to support one party more than the other. It’s supposed to provide equitable response.”
Ebony Manning, the college’s new Title IX coordinator, said she thinks the Obama-era definition of sexual harassment — “unwelcome conduct of a sexual nature” — was too broad but the new definition is too narrow, so she wishes for one somewhere in between the two.
McKnight and Manning also expressed concern that the requirement for cross-examination would discourage reporting.
Mitchell College’s Title IX Coordinator Curtis Clark emphasized, “We’ll comply with whatever changes come down the pike when they’re finalized.”
He said Mitchell is focused on restorative justice, which involves looking at the behavior and determining what’s best for all parties involved.
The view from outside universities
U.S. Rep. Joe Courtney, D-2nd District, in a phone interview Wednesday was unequivocal in his distaste for the draft regulations.
“I think the department’s proposal puts a wrecking ball into the progress I believe was being made in using Title IX as an incentive for schools to modify their programs,” he said, adding, “It’s kind of extraordinary that school systems and higher educational institutions are basically seeing a retreat in trying to encourage reporting.”
Courtney’s biggest objections are the definition of sexual harassment and the allowance for a higher standard of proof.
“There are complainants who are able to get through an episode and just because their access to education hasn’t been impinged doesn’t change the fact they were subject to unacceptable conduct,” he said.
Courtney expects to continue on the House Committee on Education and the Workforce in January and said the new Congress “is definitely going to take up the DeVos regulations.”
The congressman said of the proposal overall, “This is a retreat, at a time when the country as a whole is going in a completely different direction.”
Sen. Richard Blumenthal, D-Conn., also slammed the proposal, saying in a statement issued Nov. 21 that it “seems designed to protect universities from responsibility, rather than students from sexual assault.”
The Connecticut Alliance to End Sexual Violence also strongly opposes the proposal. The organization argues that it would allow schools to turn a blind eye to harassment, undermine Connecticut laws and discourage survivors from reporting.
Lucy Nolan, director of policy and public relations, also objects to the limitations placed on what school personnel is required to report.
Pointing to the failures of reporting around Larry Nassar’s abuse of gymnasts, Nolan said, “Schools should be held responsible if somebody in a position has been told and they don’t do anything.”