Editor’s Note: Corrections have been made to this story for accuracy.
The Department of Education has proposed controversial new changes to the rules that govern a university’s response to sexual assault that have many people wondering how those cases will be handled.
The changes, covered under Title IX, relate to several aspects of how universities respond to sexual assault cases.
Some advocates are worried that these changes could actually make colleges and universities less safe. On the other hand, some advocates see the changes as a step in the right direction.
The proposed rules would adopt a new definition of sexual assault and harassment, one that Josef Canaria of the Louisiana Foundation Against Sexual Assault, is worried might let inappropriate behavior go unchecked.
“The language in the law makes it so that sexual harassment has to be so destructive and pervasive, and, what’s the worst part, that it has to be ongoing,” said Canaria. “Now schools don’t have to do anything about it if it was, say, a one-time thing.”
However, Susan Kruth of the Foundation for Individual Rights in Education said that not only are these guidelines fair, but they might also actually increase protections for other areas of campus life; namely, that of free speech.
“What we’ve seen at a lot of schools is that they use a very broad definition of sexual harassment, and that ends up prohibiting a lot of constitutionally protected expression. So school’s will punish someone’s speech about sex just because someone finds it offensive,” she said.
According to Kruth, by raising that bar, student’s freedom of expression is being preserved while also allowing an action to be taken when it needs to be.
“An important aspect of the Davis standard is that (sexual harassment) actually prevents someone from receiving their education and that it would have that effect for a reasonable person in the complainant’s shoes,” she said. “That ensures that it’s not an especially sensitive student having a reaction to something that would otherwise be free speech.”
But Canaria is worried that this new definition may discourage some victims from reporting, especially with the need to see a pattern of behavior before it can be classified as sexual harassment.
“So they’re going to find out that if their professor says something to them one time it won’t count as sexual harassment anymore,” he said, referring the the new definition under Title IX.
However, Kruth said that the proposed standard should still prevent cases like that from slipping through the cracks.
“If someone is in a position of power, it would reasonably take less of a pattern of conduct to really interfere with someone’s access to education,” said Kruth.
Loyola Deputy Title IX Coordinator Diana Ward noted that even if this sort of behavior may no longer be counted as a Title IX issue, schools like Loyola would still have the option of handling it as a code of conduct violation should a student report. Ward said that she still encourages students to report misconduct issues of any kind.
Standards of Evidence
Another change to the process is a change in the “mandatory standard of evidence.” Under rules implemented by President Barack Obama’s administration, universities were required to use what was called a “preponderance of evidence” standard.
In other words, someone who was claiming they were sexually assaulted had to present a case that convinced the university that the assault was more than 50 percent likely to have happened.
That meant that in some cases, universities treated sexual assault cases differently than other serious offenses, such as plagiarism, where the standard of evidence that the university used might have been that the offense was “clear and convincing.”
In the new rules proposed by President Donald Trump’s administration, that requirement has changed. Now, if universities use the clear and convincing standard for serious conduct cases, that same standard must also be used for sexual assault cases.
According to Kruth, this is how it should have been all along.
“They should be using the same standard for all cases that have the same risk as suspension or expulsion, including non-sexual misconduct cases,” said Kruth. “Right now there’s really a disconnect in schools in sexual misconduct cases and non-sexual misconduct cases at a lot of schools. This would even it out so that the same standards would be used in other cases.”
Stephanie Boyd, a graduate student working with the advocacy group Loyola Students Against Sexual Assault, said that this mandate might send the wrong message to students. Though Loyola’s standards would stay the same since the preponderance standard is used for all cases, some schools may have to change.
“It’s difficult to reach a clear and convincing standard of evidence,” said Boyd. “By putting a sexual-violence-based crime as needing to be clear and convincing, that sends a message that when a survivor comes forward with their story, they aren’t being as truthful as somebody who has gone through something else that serious.”
Mediation and Live Hearings
According to Canaria, this isn’t the only aspect of the reporting process that may be made harder for survivors with mediation being reintroduced to the process after it was done away with during the Obama administration.
Canaria expressed concern that the mediation process used to be a way that universities put pressure on an alleged victim to handle a situation a certain way. With it making a return, Kruth stressed the importance of the process being both informed and consensual
“We think it’s really important that, as the proposed regulations say, it’s so so important that mediation not be forced on them and only used in cases where both parties voluntarily agree in writing,” she said. “We really want that to be an informed and voluntary decision.”
The Final Rule
The department’s proposals have just been closed from receiving public comment, so time will tell whether the department decides to make any amendments to these changes in response to criticism.