OPINION: New DOE Title IX Regulations Not The Correct Fix

Earlier this week, the Claremont Consortium announced the creation of an interim sexual assault policy in accordance with the regulations released by the Department of Education (DOE) in May. The policy change drew a great deal of criticism from student advocate groups, and even the official emails to students from college administrators didn’t hesitate to mention “some of the more concerning aspects” of the DOE regulations that prompted the change. In short, both the Consortium’s new policy and the federal regulations that necessitated it have had a lukewarm reception, and with good reason. The policies have made it much more difficult to act on accusations of sexual misconduct. This, combined with the challenges many victims of sexual assault already experience in reporting offenses against them mean, in practice, that the new Title IX policies make it much easier for offenders to get away with causing students serious and potentially lasting harm.

Now, to be clear, I’m not saying the DOE intentionally set out to make allegations of sexual misconduct more difficult for colleges to address. I believe Secretary of Education Betsy DeVos may have been acting in good faith when she created this policy which, in her words, “provides new and meaningful protections for survivors of sexual harassment/assault & balances the scales of justice on campuses across America.” The intention behind the policy seems to have been to end “the false dichotomy of either protecting survivors, while ignoring due process, or protecting the accused, while disregarding sexual misconduct,” as Assistant Secretary Kenneth L. Marcus of the Office for Civil Rights stated. But, in their quest to make sexual harassment investigations fairer for all, I believe policymakers have overlooked some key issues that make the new DOE policy a major blow to survivors on college campuses.

First, it’s important to acknowledge that false accusations of sexual misconduct do happen from time to time, on college campuses and elsewhere. People can and have suffered as a result of being falsely accused. But, despite some claims, very few reports of sexual misconduct have proven to be false. Generally, only 2-10% of reported cases have proven false, a rate “not appreciably higher than for any other crime.” In one study, it was found that only 5.55% of rape allegations were unfounded, making baseless accusations of rape slightly less common than unfounded claims of robbery and a little more common than false claims of murder. By most accounts, meanwhile, “[a] substantial proportion of college students are sexually assaulted,” as many as “23.1% of females and 5.4% of males,” according to this study. According to the Department of Justice, 80% of instances of sexual violence go unreported, often for reasons of “fear or embarrassment.” By making sexual assault harder to report to defend against false accusations, the DOE policy has tried to address a much smaller problem by worsening the larger one.

All that aside, the DOE policy still carries the weight of law, and the Claremont Consortium, like all other institutions, is bound to it. The administrations of the colleges that make up the Consortium have acknowledged that the federal regulations are generally “prescriptive in nature” and carry many “concerning aspects,” but maintain that the “new policy and process has the potential to improve the way Title IX cases are adjudicated at The Claremont Colleges (TCC) in several key ways.” In some ways, they’re right. The development of a universal Title IX policy has been a key demand of students since 2017, and should help make the process more consistent across all campuses. The position of Title IX Administrator, meanwhile, will help students better coordinate with officials across all campuses through their home campus’ Title IX Coordinator. Allowing students to take an attorney as an advisor will ensure that serious incidents are handled in a professional manner, but it’s a double-edged sword that could allow wealthier students to more easily evade consequences for their actions. From another angle, not having access to a lawyer as an advisor could make it easier for the falsely accused to be found responsible, regardless of their innocence. It may increase costs, but it would help ensure a more level playing field for the schools to maintain dedicated attorneys for less well-off students to turn to should the other party bring in an outside hire. Overall, there are some bright spots in the new Consortium policy, but there are largely overshadowed by the many problems.

The character clause of the Consortium’s interim policy is the worst offender. It states that “[w]hether Respondent has made efforts to prevent the conduct from occurring again” and that the “Respondent’s contributions to the Institutional community” will be a factor in determining appropriate sanctions. To me, and to many other students, an offender’s contribution to the community should not be a relevant factor when considering potential penalties for sexual offenses. Justice should be put first in all cases. One of the strong points of the policy is its commitment to a consistent cross-campus investigation process. Considering a guilty party’s contributions to the community seems a surefire way to weaken that commitment to consistency.

Another major issue lies in the appointment of advisors. The policy states that “[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,” and that the Consortium will provide an advisor during the hearing process, but not during the investigation process. Given that advisors may also be attorneys, and that “[b]oth parties will be provided equal opportunity to meet with the Investigator, submit evidence, and identify relevant witnesses,” this seems like a massive oversight. Like it or not, having an advisor to help determine which witnesses and what pieces of evidence are relevant gives parties who bring them along an unfair advantage, especially if either party has access to an attorney. The Consortium policy already specifies that an advisor will be provided during the hearing process; it seems logical to provide one during the investigation as well.

The final problem with the policy, to me, is the change that allows advisors, including attorneys, to cross-examine involved parties and their witnesses. Although both parties will be physically separated during questioning, the interim policy explicitly states that “[t]he parties shall be able to see and hear any party providing testimony during the hearing.” I’m not alone in thinking that “[r]equiring testimony in the immediate presence of the perpetrator can severely traumatize the victim and can be as traumatic to the survivor as the original attack.” Even courts of law recognize the need for privacy in cases where the “rape victim testifies to facts which could prove embarrassing or painful.” The accused has the right to know what’s being said against them, but that’s why both parties are allowed to ask for transcripts of the hearing process. Allowing either party to view the other’s testimony in the moment, even by means of video conference, seems likely to exacerbate the preexisting problems around lack of reporting sexual crimes.

Ultimately, the new policy’s good points, such as cross-campus consistency and the ability for students to work through their own Title IX Coordinators rather than having to go through another school’s, fail to account for its deficiencies, the character clause and some aspects of the cross-examination prime amongst them. Addressing these failures should be the focus of the Title IX Task Force if it hopes to develop as fair and supportive as possible.

 

Image credit: University of Miami News and Events

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