Title IX proposal brings potential change on sexual misconduct cases

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Proposed changes to the Title IX law may change the way the University of Northern Colorado processes sexual assault cases.

Title IX is a law that prohibits discrimination on the basis of sex for all federally funded education programs in the country, including elementary and secondary schools, colleges and universities. Members of UNC’s Sexual Misconduct/Title IX office discussed the possible changes at an open forum on Wednesday led by Larry Loften, the Title IX coordinator and equity officer at UNC.

In November, the Department of Education proposed a new rule that would, in its current format, alter certain pieces of Title IX. The proposal has gone through an open comment period since late November, which closes Wednesday.

Almost 86,000 comments had been submitted online as of midnight Jan. 26 and the Department of Education must respond to the concerns raised in these comments before moving forward.

“It’s rare for regulations to be adopted as they were presented,” Loften said. “Usually, some changes are going to happen through the comment process.”

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According to Loften, Title IX was originally used to provide equal funding for women’s sports program, but in the early 2000s policy changed to include sexual assault via the “Dear Colleague” letters. These letters provided substantive guidance for how sexual assault cases were handled at public institutions of learning, including establishing a separate office at universities for Title IX case. However, this guidance did not have the force of law.

This new regulation from the Department of Education, proposed by Secretary of Education Betsy DeVos, is an extensive 38-page document intending to clarify and revise certain parts of Title IX.

One significant change in the proposal is narrowing the definition of sexual assault to the U.S. Supreme Court definition 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 school’s education program or activity.”

This is in contrast to the much broader Obama-era definition of sexual harassment, which was defined in the 2011 “Dear Colleague” letter as “unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”

As part of this change, a school would only be responsible for the handling of the sexual assault cases when it occurs within the school’s own “education program or activity.” This means incidents off-campus involving students would not fall under the school’s liability, though the school still would have the option to be a part of the process.

“It’s basically lowering the bar,” Loften said. “It’s not saying in most cases that you can’t do what you would like to do or what you’ve been doing. It’s saying you’re no longer required to and you’re no longer going to be held accountable or liable if you fail to do so.”

Another important change is the requirement of a hearing for a cross-examination of evidence. The proposal answers concerns regarding how those accused of sexual assault are not receiving their due process, so this regulation would create a courtroom-like environment to examine evidence.

Members of UNC’s Sexual Misconduct/Title IX office raised some concerns with this change as no other processes at the school have a hearing process like the one the proposal requires; they also find it unfeasible. Beyond that, some members of the office feared that a hearing process would force those who say they have experienced the sexual assault to be in the same room as their alleged perpetrator, though rape shield laws would still apply.

The current processes at UNC attempt to avoid bias without a cross-examination. Parties who investigate sexual assault allegations collect evidence and make recommendations for courses of action, but an external party makes the final decision. This typically takes 22 to 26 days, according to Loften.

The requirement of who must report known incidents of sexual assault would also change under these new regulations. Currently, any member of faculty must report sexual assault if told about it, but the regulations would change this liability to only authorities that can take immediate actions, such as the Title IX coordinator.

“The proposed regulations really make it much more stringent on what would count as notice and who the notice would have to be given to,” Loften said. “So a lot of conversations are happening about the pluses and minuses of that.”

This means other members of the Title IX office would not necessarily have to report incidents they are made aware of, though the regulations would not stop them from doing so. The intention behind this regulation is to reduce university liability in sexual assault cases.

The proposal states the total cost savings of these changes would be between $286 and $367 million over the next 10 years, while still continuing the fair and reliable procedures.

Those at UNC’s Sexual Misconduct/Title IX office also raised concerns about how these regulations would lower the bar for public universities’ response to sexual assault. However, while the regulations are not as stringent as they have been in the past decade, schools still have the option to keep a lot of their policies at a higher standard than the proposal.

UNC’s Sexual Misconduct/Title IX office says even with these changes, they will continue to serve the UNC community to the best of their abilities.

“We’re going to continue to do what is equitable and fair,” Loften said during the forum.

The comments period ends at 9:59 p.m. on Wednesday for Colorado. Comments can be submitted at https://www.regulations.gov/document?D=ED-2018-OCR-0064-0001.

EDIT: According to the United States Department of Justice, Congress passed Title IX because prior to 1972, women were excluded from or had limited access to certain educational programs, such as medicine, science and technology. Also at the time, women faced more restrictive rules than men faced. While Title IX did expand women’s access to athletics, it was not its original intent. Edited 29 Jan. 2019.

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