The Department of Education (DOE) proposed new regulations on Nov. 29, 2018, that could change the way that Title IX procedures at universities are conducted. A period for public comments closed on Jan. 30 but is being reopened for one day—Friday, Feb. 15—to ensure that everyone has the opportunity to comment if they encountered technical difficulties at the end of the comment period. Not every comment submitted during this period has to be responded to, but those that courts find to be “significant” must be addressed. The University and the law firm Pepper Hamilton, LLC, acting on behalf of Wesleyan and 23 other universities, submitted comments to the DOE regarding the proposed regulations, citing various concerns with the proposed changes to Title IX procedures.
Crucial changes proposed in the regulations include the requirement for live hearings, the option for cross-examination in each case, and a presumption of innocence for the respondent. (The full text of the proposed regulations is 144 pages, but the DOE also published a one-page fact sheet that highlights several of the key points.)
The University took issue with the proposal on multiple fronts: the narrowing of the definition of sexual harassment, the requirement for live hearings, the ability for hired attorneys to conduct cross-examinations on involved parties, and the regulations’ failure to distinguish proceedings for student and faculty reporters were among their objections.
“We believe that many of the proposed changes (including the narrowed definition of sexual harassment) will not improve campus culture,” the comment reads. “Rather, they will reduce the number of complaints/reports, unnecessarily complicate and make less predictable what is currently a reasonable system, and create hardships for students…. We support efforts to ensure fairness and encourage solutions that work for both the reporting and responding parties. We oppose, however, requirements that limit prevention and response through narrowed definitions or that effectively convert the campus community standards and discipline process to full-scale litigation or criminal proceeding without any of the systems or safeguards offered in those arenas.”
Pepper Hamilton, LLC, also submitted a 21-page comment to Secretary DeVos, challenging the Department of Education’s ability to mandate a particular method of procedures in the first place and arguing that the Supreme Court has established that individual schools retain flexibility in their implementation of disciplinary processes.
“Our primary concern with the Proposed Regulations is that the Department seeks to remove the autonomy of private, independent schools like the Institutions, by seeking to impose a uniform, ‘one-size-fits-all’ set of procedures for handling all allegations of sexual violence and sexual harassment, for every school in the United States, regardless of the school’s size, history, geography, mission, values, or culture,” Pepper Hamilton’s comment reads.
Previous administrations, like the Obama Administration, have passed “guidances” over the past several decades. Perhaps most notably, in 2011, the Office of the Assistant Secretary published the “Dear Colleague Letter,” which instructed schools to use a preponderance of the evidence in Title IX proceedings. In short, the burden of proof was lowered such that schools only had to determine that it was more likely than not that, for example, sexual harassment had occurred. (Secretary of Education Betsy DeVos rescinded this guidance in September 2017.)
The proposed regulations differ from the previous guidances in one crucial way: They would become a part of federal law.
At Wesleyan, Title IX procedures have changed significantly over the past few years. As former Vice President for Equity and Inclusion Antonio Farias posted on the Equity @ Wesleyan webpage, the University hired the Victim Rights Law Center (VRLC) in early 2017 to assess Wesleyan’s Title IX policies, practices, and structure. VRLC released a report in early February 2017 that recommended several changes to the University’s existing systems. In addition, the report praised multiple facets of University life surrounding Title IX, such as the existing partnerships with outside organizations and the attitudes of the student body towards sexual assault and harassment. The Office of Survivor Advocacy and Community Engagement (SACE) was created as a direct result of the recommendations, and Johanna DeBari was hired at SACE’s director. Several other recommendations were implemented.
There is no definitive timeline about when the regulations will go into effect, or what form they will be in when they do, as the DOE could choose to heavily modify what they have written in response to the comments they have received.
“[The DOE] could throw the whole regulations out, they could start over,” DeBari said. “They could take nothing into consideration and keep them exactly the same. And that’s the really tricky part about this—for me, the most frustrating—is feeling like we can’t give people answers. For now, we just keep doing what we do, as the process is, and supporting people in the ways that we can until we hear otherwise.”
Hannah Reale can be reached at firstname.lastname@example.org or on Twitter @hannahereale.