How Title IX Will Change Nationwide

The U.S. Department of Education, under the direction of Secretary Betsy DeVos, issued sweeping changes to Title IX rules for the nation.  

The new Title IX regulations carry the force of federal law.  Unlike Title IX rules under the Obama administration, which were strong recommendations for educational institutions to follow, these new regulations are law, meaning that educational institutions are federally mandated to implement and follow them.  Additionally, the federal regulations fortify due process rights for complaint proceedings.

Here are some of the key takeaways of DeVos’s two thousand page Title IX mandate, under the purview of institutions of higher education:

• New regulations increase protections for students, faculty, and staff accused of sexual assault, harassment, or misconduct of any kind.
• If a survivor and their perpetrator attend different schools not in the same consortium (in this case, the University System of Maryland), the survivor cannot pursue a case against them through their institution.
• During the investigative process of a complaint, schools are required to hold live hearings accompanied by cross examinations of both the accused and the accuser.  Under this law, survivors are subject to cross examination by the accused’s ‘representation.’  This representation could be an attorney, colleague, friend, or family member that has been designated to represent the accused.  It is important to note that this law does not allow students to question each other.  In the judicial process, schools are required to allow party appeals, and must provide both parties with all evidence of the case. 
• Institutions are instructed to dismiss any complaints of sexual misconduct that occur outside of campus-patrolled buildings or campus-sponsored educational activities.  “Activities” have been extended to include any school-sponsored trips (no matter how near or far), conferences, and other events off campus that are held or sponsored by a campus-affiliated organization.  Still, this does not require institutions to investigate complaints of sexual misconduct off campus, i.e. at independent student housing or un-affiliated student organizations, like off-campus sororities and fraternities, or other unrecognized student groups.
• The new mandates strengthen the formal complaint process on college campuses across the nation.  Institutions are only obligated to pursue investigations of complaints made through the formal complaint process, i.e. through an institution’s Title IX coordinator or affiliated faculty and staff with the authority to take corrective action.
• Requiring institutions to dismiss complaints that do not objectively meet the definition of sexual harassment, investigations on these complaints cannot be pursued even if the allegations are proven to be true.  The Department of Education’s definition of sexual harassment was adopted from the U.S. Supreme Court, and is defined as “unwelcome conduct that is so severe, pervasive and objectively offensive.”
• Institutions are mandated to give students accused of sexual misconduct “written assurance” that they are presumed innocent unless proven otherwise.  Additionally, institutions are unable to take any disciplinary action against the accused until the complaint investigation and subsequent judicial proceeding has ended.  In a worst case scenario, this could potentially mean that a survivor would continue to share similar academic spaces, i.e. classrooms, organization meetings, etc., with their alleged perpetrator.
• The new law strengthens the visibility of Title IX coordinators on campus, and additionally requires said coordinators and affiliated-staff members to provide “supportive measures” to survivors, whether they choose to move forward with the formal complaint process or not.  These rules also strengthen the protection of survivors and take considerable actions to fight retaliation against them.
• These new regulations establish institutional flexibility on how formal complaint investigations proceed.  Institutions may choose between two different evidentiary standards to use when investigating a student’s misconduct: a “preponderance of evidence,” requiring judicial boards to favor one side or another over who presents the more convincing evidence, or “clear and convincing evidence,” requiring a decision to be made based on a party’s substantially more probable evidence, with the trier of fact (judicial boards) having firm convictions of the evidence’s factuality.

One out of every three women will experience some form of sexual violence in their lifetime.  Though this statistic is tremendously high, the statistic of women coming forward to report their experiences is exceedingly lower.  According to RAINN (Rape, Abuse, and Incest National Network) college-aged males (aged 18-24) are five times more likely to be victim of some form of sexual assault than a non-student male.  Overall, 54% of all sexual violence victims are between the ages of 18 and 34.

Victims’ rights advocates, alongside women’s groups, academics, researchers, and healthcare professionals have come forward in recent days with concerns for how these new regulations will affect survivors and their likelihood of reporting the crimes against them.  Higher education officials, as well as leaders from the K-12 education sector, have condemned the timeliness of these new regulations in the middle of a global health crisis.  These new regulation changes will take effect on August 14, 2020, but officials are asking for the regulations to be held off while institutions and public schools recover from the novel coronavirus pandemic.  Still, DeVos argued that both institutions of higher education and public schools have had more than enough time to prepare for these regulations. 

After growing concerns about the implementation of the new regulations at FSU, Title IX Coordinator Dr. Ben Brauer issued a statement on Tuesday, May 12, 2020.  “Any changes implemented will not lessen [FSU’s] resolve to support and care for the survivors of sexual assault and harassment and provide for the safety, health and well-being of students, faculty, staff and our community,” Brauer said in his email to the campus community. 

“We concur with USM Chancellor Perman, who said, ‘USM institutions remain committed to reducing incidents of sexual misconduct on campus, respecting the rights of every student, and providing an adjudicatory process that is fair to all participants. Providing a safe and healthy educational and work environment for our students, faculty and staff remains our highest priority.’”

In an interview Wednesday with The Bottom Line, Dr. Brauer indicated that the implementation of the Department of Education’s new Title IX regulations would occur at the direction of the University System of Maryland, and would be a joint effort between the FSU Office of Gender Equity and the Office of Student Affairs. Preliminary joint meetings between the two offices have already been held as administrators start to break down the laws and consider their enforcement at Frostburg State. 

Questioned on how the law only obliges institutions to pursue investigations on complaints made through the formal process or through a faculty or staff member with the authority to take corrective action, Brauer says that, “the regulations narrow the scope of [campus security authorities] through Title IX, but there are federal regulations that really do go hand-in-hand.” These other regulations, Brauer mentions, include the Clery Act, which requires colleges and universities to report crimes and security issues that present a threat to the safety of its students and employees, and the Violence Against Women Act (VAWA), which aims to prevent violent crimes and respond to the needs of crime victims. “While it may be perceived that [new regulations] may limit the scope and jurisdiction of Title IX, there are other aspects, like through the Student Code of Conduct or through faculty and staff policies and regulations, that if [a complaint] is no longer Title IX, that same concern or complaint will be picked up in another area.” Brauer reassures, “It is not going to effectively or fully limit the University’s ability to address a situation just because Title IX has now become more restricted.” 

While the regulations may limit an institution’s ability to take disciplinary actions while an investigation is ongoing, Brauer predicts that the university will still have the ability to “issue interim measures from a safety and security standpoint. Though [these measures] may be viewed by one party as punitive, they are necessary and best practices for safety and security.” 

Brauer also predicts that revised training for the changes in FSU’s new Title IX policies will be necessary following the August 14, 2020 deadline for implementation. 

For navigating the implementation of these new policies, he says, “the key is going to be keeping lines of communication open between my office and anyone within the campus community who may have a concern. I want to make sure that as we get further into these regulations, any concerns or ideas and suggestions about how to implement them be heard. In the same vein, when we’re not just talking about policy work, I want to make sure that, in this interim period of time as we’re working towards the August 14 deadline to implement, anybody who does have a Title IX need feels safe, secure, and confident in coming to the [Title IX] office to meet those needs and to be supported in services and accommodations.” 

If you or someone you know has concerns regarding FSU’s implementation of new Title IX regulations, Dr. Ben Brauer can be reached through email at btbrauer@frostburg.edu, as well as by phone at 301-687-3035. Additionally, the Office of Student Affairs can be reached through email at studentaffairs@frostburg.edu, or by phone at 301-687-4311. 

For more information about your rights guaranteed through Title IX, visit www.knowyourix.org.