In November 2017, Secretary of Education Betsy DeVos announced proposed changes to Title IX policies enacted under the Obama administration, which are expected to be approved by the current administration sometime this fall.

Proposed changes include requiring victims of sexual assault to provide a live cross-examination by an advisor, as well as a higher evidentiary standard requirement.

Laura Riehle-Merrill, Carleton’s Title IX Coordinator, spoke with the Carletonian about the proposed changes and how they could affect Carleton students.

“Once the final regulations are announced, like all institutions of higher education which receive federal aid, Carleton will need to update our policy and process to comply with these guidelines—this process will involve our entire campus community,” said Riehle-Merrill.

The new rules were initially slated to be set in place after “several months” of a public comment period, which was later pushed back. The college submitted public comments in the form of a letter in January of this year. However, it remains unclear as to when the Department of Education’s proposed changes will be put in place.

A number of victim advocacy groups, such as End Rape on Campus, Know Your IX and the National Women’s Law Center, condemned the proposed regulations and launched a campaign in response to the proposals under the hashtag #KnowYourIX.

“Like much of the higher education community, Carleton has concerns about specific components which are proposed in the new regulations,” said Riehle-Merrill.

One of the Obama administration’s more controversial guidelines was to use a lower standard of evidence (often referred to as “preponderence of evidence”) for sexual assault cases. The Department of Education under the new administration denounced this guideline as giving preferential treatment to the victim over the accused.

“We are currently waiting to see what the final regulations will be. Under the proposed new regulations, colleges will be required to use the higher standard of ‘clear and convincing evidence’ if they use such a standard in making any other disciplinary decisions relating to students, staff, or faculty,” said Riehle-Merrill. “Under our current ‘preponderance of evidence’ standard the College looks to whether it is more likely than not that the accused student committed the alleged misconduct. This evidentiary standard is only utilized in our formal Title IX complaint process.”

In January 2019, the College released its official statement signed by President Steven Poskanzer in the form of a letter “to offer comments on the Department of Education’s proposed regulations implementing Title IX of the Education Amendments of 1972,” according to the letter’s introduction.

In the statement, the college listed three “egregious problems” in DeVos’ proposed Title IX changes.

The first of these problems is with Proposed Regulation 106.45 (b)(3)(vii): requiring institutions to provide a live disciplinary hearing at which a cross-examination must be conducted by an advisor of choice, which the college’s statement calls “fundamentally ill-conceived and will directly interfere with the primarily educational purpose of college discipline.”

The letter goes on to point out that the cross-examination requirement will likely “generate problems of equity in representation as respondents will be much more likely than complainants to engage sophisticated criminal defense lawyers to protect their interests.”

The second issue the statement addressed is with Proposed Regulation 106.45 (b)(4)(i): the requirement of the institution to apply the same standard of evidence for complaints filed by students as it would for staff and faculty.

Carleton’s official statement said, “A rigid insistence on the same standard in all contexts would place large numbers of colleges and universities in an untenable position of having to choose between standards that have worked well for different constituencies or forcing the wrong standard on other important groups.”

The final problem the College listed is with Proposed Regulation 106.45 (b)(4)(i) which would instruct institutions to apply the “clear and convincing” (higher standard of proof) requirement for sexual misconduct cases but apply the “preponderance of the evidence” (lower standard of proof) requirement for non-sexual related misconduct. This means, sexual assault cases will require a higher evidentiary standard than other serious disciplinary cases.

In response to this proposal, the college stated, “This would permit institutions to unwisely and unfairly subject the behavior of a complainant in a sexual misconduct case to a higher level of scrutiny than a similarly-situated complainant in an equally serious nonsexual disciplinary matter.”

Previously, the Obama-era regulations had demanded that institutions use the lowest standard of proof (“preponderance of the evidence”) in sexual assault cases, citing difficulty in proving evidence in sexual assault cases compared to other disciplinary cases.

However, Carleton hopes to provide continued support to students going through the formal Title IX process, despite the potential new regulations. Riehle-Merrill said, “While we hope several of these proposed guidelines do not make it into the final guidelines, we are confident that we will be able to continue to offer all members of our campus community options and support and we will work to ensure that our entire community is informed.”