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Betsy DeVos finalizes new Title IX regulations that prioritize the accused

On May 6, U.S. Secretary of Education Betsy DeVos officially released new Title IX guidelines that will change how colleges and universities handle cases of sexual misconduct. 

The changes, which were first introduced in November 2018, aim to make it more difficult for schools to find accused individuals in violation of campus harassment and assault policies. Under the new system, schools will now have the option to use the higher “clear and convincing evidence” standard and to apply the selected standard evenly to proceedings for all students, staff and faculty.  

“These final regulations are by far the most complex and prescriptive guidance ever issued regarding Title IX,” said Title IX Coordinator Laura Riehle-Merrill. 

The Obama administration’s Department of Education issued its own Title IX guidelines for schools in 2011. Regulations had required 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.

The changes include requiring colleges and universities to hold live hearings of cross-examinations, during which victims of sexual assault and the accused can be challenged by an advisor. 

The Obama administration said that it “strongly discouraged schools from allowing the parties personally to question or cross-examine each other” during hearings. “Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment,” the guidance read.

The updated policies also use a narrower definition of sexual harassment than the one used during the Obama administration. Sexual harassment was previously defined as “unwelcome conduct of a sexual nature,” including “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” Sexual harassment will now be defined 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 recipient’s education program or activity,” stemming from a recent Supreme Court regulation. Under this ruling, schools will have to investigate the allegations in any formal complaint but dismiss any allegations of conduct that don’t meet the definition of sexual harassment.

Sexual Misconduct Prevention & Response is working hard on our sexual violence prevention efforts to help lower the number of incidents happening on our campus with the goal of preventing sexual misconduct before it happens,” said Riehle-Merrill. 

The new rules are set to go into effect in the fall and will require Carleton to alter its Title IX policies and process. 

“Most members of our campus community who have been impacted by sexual misconduct have sought either an informal process or supportive measures, and, thankfully, those components will not be changed by the new guidelines. The biggest changes will be through our formal complaint process, and it will take us some time to work through what that will look like,” said Riehle-Merrill.

The Department of Education has defended these changes by claiming the new guidance is more fair to all students. “Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” said Secretary DeVos in a May 6 press release. The new protections will “restore due process” that is “fair and transparent,” according to language on the Department of Education website. 

Before they were formally announced, the new rules were to be set in place after “several months” of a public comment period. Carleton had been anticipating these regulations since the Department of Education submitted proposed Title IX rules in late 2018, at which time Carleton—along with thousands of other colleges—submitted comments in the form of a letter, pointing out serious concerns with the draft regulations. 

A number of national victim advocacy groups, such as End Rape on Campus, Know Your IX and the National Women’s Law Center, have condemned the regulations and launched a campaign in response to the proposals under the hashtag #KnowYourIX. Such groups have argued that the new rules discourage survivors from reporting.

When asked how the Sexual Misconduct Prevention and Response (SMPR) office plans to prevent any potential discouragement from coming forward, Riehle-Merrill said, “When I first came on board in 2017 as Carleton’s first full-time Title IX Coordinator, we saw a 15% increase in student reports. Data suggests this increase was not due to an increase in incidents on our campus, but rather students’ trust in our response. We want to continue this culture around support-seeking so that impacted parties get the resources they deserve.”

SAFER, an organization that focuses on preventing sexual assault on college campuses, said the new rules “undo the progress achieved during the Obama administration and will literally protect abusers.”

The National Women’s Law Center plans to sue the Department of Education over the new rules.

For now, Carleton is focused on figuring out what the new Title IX regulations mean for campus, and how to better support survivors in wake of the changes. 

“We are committed to doing everything in our power to keep our campus safe. We hope community members will visit the SMPR website for information about our process, prevention efforts, and support resources,” said Riehle-Merrill. 

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