Content warning: Sexual assault and sexual harassment.
New federal Title IX regulations, proposed by the United States Department of Education (ED), are expected to be announced in the coming weeks. Based on the initial proposal, these regulations could possibly narrow the definition of sexual assault and mandate live hearings in Title IX cases.
Wesleyan’s Title IX Office, the Survivor Advocacy and Community Engagement (SACE) Office, the SACE Advisory Committee, and additional campus resources for sexual assault are preparing for the regulations, which will govern how college campuses respond to sexual misconduct. The rules are currently being reviewed by the ED’s Office of Civil Rights (OCR), and are expected to be announced in the coming weeks.
The proposed regulations would be the first change to federal Title IX law since 1975. The regulations formally submitted to the ED received over 100,000 public comments. Wesleyan released its own response and joined 23 other private liberal arts colleges in a public comment drafted by Pepper Hamilton LLP.
One specific change is redefining sexual harassment as it is to be used in Title IX investigations.
“Paragraph (e)(1) defines ‘sexual harassment’ to mean either an employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct; or 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…” the proposed regulations read.
The Obama Administration ED’s 2011 Dear Colleague Letter defined sexual harassment as not necessarily needing to be severe and pervasive.
“The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the harassment is physical,” the letter reads. “Indeed, a single or isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe.”
Wesleyan Equity Compliance Director and Deputy Title IX Coordinator Debbie Colucci found the updated definition of sexual harassment as “severe and pervasive” to be inadequate.
“To have [cases of sexual harassment] have to be severe and pervasive, it doesn’t take into account stalking,” Colucci said. “Stalking is in and of itself pervasive, and so who determines severe? If someone’s always standing outside your residence hall door, does that seem severe? I would think so in the context of a bigger stalking claim. It was really disheartening to think of everything as being a ‘have to meet this standard,’ when it doesn’t take into account individual harm.”
Associate Vice President, Title IX Coordinator, and ADA Coordinator at the University of Connecticut (UConn) Elizabeth Conklin echoed the sentiment that the new definition should be changed.
“The idea that you need severe and pervasive is what I think should change,” Conklin said. “I would not be shocked if that changed in the final [version] of the regs because that conflict is problematic.”
The proposed regulations also require the alleged harassment to have occurred in the United States—which would particularly affect study abroad students—and require live hearings to decide alleged sexual misconduct cases.
The live hearing model is a process that allows parties to pose questions to each other through mediators. Wesleyan moved away from the live hearing model in 2017, and public comments both issued or signed onto by the Wesleyan community voiced concerns over the live hearing proposed requirement.
“Wesleyan employed the live hearing model for a significant period of time, until it became clear that the pitfalls associated with that model outweighed its usefulness,” Wesleyan wrote in its comments to the ED. “While investigations were completed and reports issued prior to the initiation of a hearing, the hearing nonetheless became a springboard for attempts to introduce new evidence, witnesses, and testimony of disputed evidence.”
At UConn, a live hearing model exists for student cases of sexual misconduct, but the proposed regulations would still change the mode in which those hearings operate.
“Right now, there’s not cross-examination with attorneys,” Conklin said. “There is an opportunity to submit questions during that first live cross-examination…. If [the proposed regulations] come out the way that they were, [they] would require allowing live cross-examination by the adviser. So let’s say a student hires a lawyer, a lawyer would be able to cross-examine the other student.”
Additionally, the proposed regulations concretize the Trump Administration’s condemnation of the 2011 Dear Colleague Letter, which clarified how sexual assault falls into the purview of Title IX enforcement and compliance.
“This letter supplements the 2001 Guidance [previous OCR Guidance preceding the 2011 Guidance] by providing additional guidance and practical examples regarding the Title IX requirements as they relate to sexual violence,” the letter reads. “This letter concludes by discussing the proactive efforts schools can take to prevent sexual harassment and violence, and by providing examples of remedies that schools and OCR may use to end such conduct, prevent its recurrence, and address its effects.”
Colucci explained that while the guidance was not federal law, it informed Wesleyan’s approach to sexual misconduct.
“The last time around in 2011, it was guidance from the federal government, which we all got on board with and made lots of substantive changes on campus across the board, including creating a lot of positions like mine,” Colucci said.
The ED rescinded the 2011 Dear Colleague Letter’s assertions in their 2017 Dear Colleague Letter, citing the letter’s impact on the due process rights for accused.
“The 2011 and 2014 guidance documents may have been well-intentioned, but those documents have led to the deprivation of rights for many students—both accused students denied fair process and victims denied an adequate resolution of their complaints,” the letter reads.
Given that the regulations will be federal law—as opposed to Obama’s 2017 Dear Colleague Letter, which were recommendations—Wesleyan will have to adopt them. Colucci is particularly concerned about how quickly Wesleyan will need to implement the new regulations.
“Right now, we’re just going to continue business as usual until someone tells us to change it,” Colucci said. “And then the things we’re keeping an eye out for are not only the regulations themselves but when is the implementation timing? Do they say you have to do this in thirty days? Because that would have a significant impact on our ability to get input from the Wesleyan community.”
Student collaboration has been a tenet for Wesleyan’s Title IX and SACE Offices in creating their policies and programming. However, because the proposed regulations would be federal law, the extent to which input can be factored in is limited.
“Worst case scenario, there’s like this 30-day turnaround or less [for schools to become compliant with the new regulations],” Colucci said. “Then, I think what we would end up doing is…putting together policies and procedures as a proposal for feedback versus taking the time to get input to then create policies and procedures. We have to just put something together that’s compliant and then say to the community, ‘This is what we’re thinking, what do you think?’ Not that we get to change a whole lot, because the difference this time around is it’s federal law…so it’s not like we can get a whole lot of input from the community saying, ‘Well, should we have live hearings or not?’ If the law says we have to have hearings, we have to have hearings. It doesn’t have the possible community input that we’ve used in the past. But we’ll figure that out.”
While the Title IX Office will institute the new policies by adopting the proposed regulations, the SACE Office and SACE Advisory Committee will grapple with supporting survivors of sexual misconduct and the backlash from national and local survivor advocacy groups.
“My intention and hope is to continue seeking feedback from students on this [SACE Advisory] committee, and faculty, staff and students overall on campus to see based on these new regulations, how we honor the needs of survivors on our campus,” Director of the SACE Office Johanna DeBari wrote in an email to The Argus. “From my perspective, I hope to do a lot of listening and learning from the Wesleyan community, overall. To do that, it feels important to create opportunities for processing and understanding the impact of the new regulations, and also educating the community from a ‘Know Your Rights and Resources’ perspective.”
WesWell Intern Jewelia Ferguson ’20, whose role is focused on bystander intervention, has been involved in survivor advocacy since her first year at Wesleyan. She is also a member of the SACE Advisory Committee, and believes that her role in these advocacy organizations will be to make sure students know their resources.
“I think one thing that we’re working on is a ‘Know Your Title IX’ after the changes happen and having a big panel or workshop and explaining what this means, open to all students, and creating informational flyers about what the changes are,” Ferguson said. “The thing is, here, it’s really hard to know what the Title IX Process is, and it hasn’t changed in a while. I think this big change is going to impact so many people: survivors, supporters of survivors, the whole community. I’m slightly nervous for it, but I think if we’re..proactive in planning these events…then I think we can get the word out.”
The SACE Advisory Committee began its first full year of operation in the fall, as a way to implement educational programs and events related to survivor advocacy and awareness, and allow students to become familiar with the resources offered by the SACE Office. Director of WesWell, Seirra Fowler, also serves on the SACE Advisory Committee. She elaborated on how the new regulations will pivot their programming depending on the contents.
“I think that once the regulations finally do come out, and whatever those look like, then the Advisory Committee can really get together and brainstorm ways in which the community can feel most supported as they navigate that process,” Fowler said. “But so far, it’s hard to even plan for what it will look like because there’s been no transparency in terms of what’s actually going to happen.”
The Title IX Office remains in a planning and preparation stage while waiting for the final regulation. Colucci keeps the Title IX Resource Network, the new organizational structure of the Title IX Office that develops and implements policy, updated about the federal regulations.
“We used to have five different Title IX committees and this year, we took all the lines out and meshed them into one big network,” Colucci said. “That network can be mobilized for different things at different times and it includes faculty, staff and students. And so we can get the regulations and say, ‘OK, we need eight people representing faculty, staff, and students to come together quickly to work on new policy.’”
Any member of the Wesleyan community who has experienced sexual misconduct, whether in the form of intimate partner violence, non-consensual sexual activity and sexual assault, sexual exploitation, stalking or sexual harassment, is encouraged to speak with someone. For confidential conversations, please contact the Office of Survivor Advocacy and Community Education, Counseling and Psychological Services (CAPS) and/or the Office of Religious and Spiritual Life. Anyone wishing to report an incident of misconduct is encouraged to contact the Title IX Office or Public Safety.
Jordan Saliby can be reached at firstname.lastname@example.org.