Claremont Colleges Change Title IX Policies Amid New Federal Regulations

In a series of emails sent earlier today, officials at the Claremont College Consortium informed the student body of an interim policy change to the Claremont Consortium’s sexual misconduct regulations. This policy came in response to the new Title IX regulations released by the Department of Education (DOE), released on May 6, and include provisions for investigation and adjudication of cases by neutral third parties and the option for students to select an advisor, as well as granting all parties “the opportunity to ask questions and review the evidence throughout the process.” The policy “applies to member institutions (except Keck Graduate Institute) that compose The Claremont Colleges.”

Under the new policy, “[p]arties may elect to be accompanied by an Advisor during meetings and proceedings related to the investigation and hearing process outlined in this Policy. Parties are limited to one Advisor. An Advisor can be anyone, including an attorney. The Advisor may not speak on behalf of the party or otherwise disrupt any interviews or proceedings.” The Consortium will not provide parties with advisors during the investigation process, though one will be provided during the hearing process if an advisor has not already been selected.

The new policy divides the Consortium’s response process into two distinct phases: the Investigation and the Hearing processes. During the Investigation process, the Consortium Title IX Administrator “will designate an Investigator to conduct a fair, thorough, and impartial investigation.” The Investigator will gather all relevant evidence, including the sexual history between the involved parties where appropriate, before presenting it to the Title IX Administrator, who will then submit the evidence to the involved parties for a final review.

After the Investigation process, the Title IX Administrator will determine if the case should proceed to a hearing. An Adjudicator, an individual either internal or external to the Consortium, will be appointed to “preside over the hearing and draft the Hearing Decision.” Any individual may choose not to participate in the hearing. If this is the case, “the Adjudicator may not consider any statement made by the individual to the Investigator. Parties (Complainants and Respondents) may also choose to attend the hearing and not answer questions.” 

Under the May 6 DOE regulations, colleges “must presume that those accused of sexual misconduct are innocent prior to the investigative and decision-making process.” Under prior regulations, institutions could use a “preponderance of the evidence” standard in cases of sexual harassment and assault, basing their decisions on the most convincing evidence presented. The new guidelines allow colleges to set a higher burden of proof by introducing a “clear and convincing” standard of evidence, while also requiring that colleges provide live hearings and allow students’ advisors to cross-examine involved parties. However, colleges may choose to keep the old standard of a “preponderance of the evidence,” which the Consortium has chosen to do.

In addition, the DOE regulations set boundaries for the scope of colleges’ responsibility to respond to allegations of sexual misconduct. Institutions must act on instances of misconduct that occur within an educational program, including in recognized off-campus housing, but “may address sexual harassment affecting its students or employees that falls outside Title IX’s jurisdiction in any manner the school chooses.”

The Consortium is also required to close and dismiss any cases in which alleged conduct would not meet the policy’s definition of sexual harassment, was found not to have occurred within a Consortium education program or activity, or, if it did not occur against a person in the United States. Under these circumstances, the Consortium “may continue to investigate the allegations as a potential violation of another policy.”

If an instance of sexual misconduct is found to have occurred, sanctions will be applied based on a number of factors, including the severity of the offense and the character of the offending party. Before sanctions are decided on, the Title IX Coordinator of the offending party’s parent institution may recommend sanctions for the Advisor to consider. Once the recommendations are received, “[t]he Adjudicator will make a sanctioning determination based on the factual and policy findings, written party statements, written Institution recommendations, and other factors relevant to sanctioning.”  Possible sanctions range from a warning to expulsion, in the case of students, or loss of employment, in the case of a college employee. Either of the involved parties may appeal the final decision, though the subsequent decision in these cases will be final.

In response to the release of the interim policy, CMC Advocates, a student group dedicated to supporting survivors of sexual assault, issued a statement of concern regarding certain clauses included in the regulations. “Advocates takes serious issue with the character clause in the policy and will be working alongside other Advocate groups across the 7Cs to ensure that this is not included in the finalized policy. We have a variety of other concerns that center around support provided to the survivor (Complainant) in the process as well as a lack of clarification in some of the definitions and portions of the policy.” In light of the fact that attorneys may serve as advisors, CMC Advocates argues that “[i]f a Respondent has the ability to hire a lawyer to act as their Advisor, the Complainant should be provided with a lawyer as well.” Citing numerous gaps in the policy, “and in an attempt to streamline communication between the 7C Advocate groups, student governments, and administration, Advocate groups have joined together to form a coalition to ensure that survivors’ needs are put first throughout this new policy.”

 

UPDATE: Pomona Campus Advocates, another survivor-focused student group, has released a letter of concern regarding the interim Title IX policy. According to the advocates, despite some initial contact with the administration, “[t]here has been little to no communication from the Task Force as a collective, no meaningful engagement of key stakeholders and, their process lacked any degree of transparency. [The advocates] saw the finalized interim policy along with the rest of the TCCS community.” In the letter, the advocates expressed their concern that “none of [their] suggestions were incorporated into the final interim Consortium-Wide policy that has now been posted online and [they] have not received proper feedback as to why.” The Associated Students of Pomona College (ASPC), Pomona’s student government, also reiterated their commitment to “stand with survivors” and to “always put their needs first,” in an email to the student body. Students have also created “the Claremont College Coalition for Survivor Advocacy, which will work with legal counsel to review the community’s concerns and suggest changes to the interim policy. Moreover, the space will allow for [students] to advocate for input from Title IX Coordinators, Advocates, and the larger student body in the creation of future policies.”

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