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The guidelines for handling sexual misconduct at federally funded schools may face drastic changes as Secretary of Education Betsy DeVos revises the Title IX policy.
The proposed changes to Title IX of the Education Amendments of 1972, a law prohibiting sex based discrimination in federally funded education programs, was published inthe Federal Register on November 29th of 2018. Following a 60-day period of public comment, the changes could potentially take effect within the next few months.
Title IX guidelines dictate how schools should carry out sexual harassment investigations and determine when a school is responsible for taking action. The Obama-era policy on Title IX, detailed in 2011’s “Dear Colleague Letter,” was rescinded by Secretary DeVos on September 21st, 2017, altering significant principles that determined the basis of sexual misconduct in an educational environment. The new guidelines proposed by Secretary DeVos aim to strengthen defendants’ rights and reduce the liability of colleges and universities for investigating sexual misconduct claims. The changes, which include an updated definition of sexual harassment, elicited thoughtful responses from students and faculty alike.
The umbrella definition of sexual harassment set forth by the previous administration would be thrown out in favor of a less mobile awning which could potentially leave some victims feeling left out in the rain. Under Obama-era guidelines, Title IX defined sexual harassment as unwelcome conduct of a sexual nature. Under the proposed changes, the validity of a claim would depend on the severity, pervasiveness, and objectionable offensiveness of the misconduct.
The change in definition evoked concern from Alex Melendez, 20, a Liberal Arts major at LaGuardia Community College. “It’s giving people who do sexual harassment a kind of safetynet,” Ms. Melendez said.
Christopher Carozza, Chief Diversity Officer, Affirmative Action Officer, and Title IX Coordinator at LaGuardia, commented on the new definition, reaffirming LaGuardia’s commitment to a safe academic environment. “If we’re not certain it’s a sexual misconduct incident [we should] at least offer interim and supportive measures to that student. Resourcessuch as the Wellness Center, the Women’s Center, [etc].”
One of the changes that is of utmost relevance to LaGuardia students is the reduced liability of schools to investigate claims of sexual misconduct. Under the proposed regulations, schools would only be required to investigate claims in which the alleged misconduct occurred either on campus or at a location overseen by said school. Commuter schools like LaGuardia, are more likely to have these types of incidents happening off campus, amplifying the significance of said proposal in the Long Island City community college. In a letter signed by President Mary Sue Coleman of the Association of American Universities, Coleman criticizes the proposed regulation, suggesting “if the conduct does not occur within a program or activity but may affect a student’s education, then the university should be empowered to investigate.”
In institutions of higher education, the proposed changes include adding live hearings and cross examinations to the investigation process. Through a third party, both the accuser and accused would be allowed to cross-examine each other and any witnesses. Questions regarding sexual history would be off limits. Genesis Genao, 18, a Criminal Justice major at LaGuardia reacted to this proposal, momentarily placing herself in the shoes of a sexual harassment victim, saying “it would be really hard to keep speaking upon it… now you have to actually go to extreme limits to keep explaining, to keep convincing people that it did happen.”
Dr. Tomoaki Imamichi, LaGuardia assistant professor of Psychology, commented on the potential psychological effects of such practices, stating: “Secondary victimization, [is] when a person goes through a traumatic experience, but then is retraumatized by the investigation process.” Pondering the possible benefits of cross-examination, he added, “I also understand to some degree the perspective that you do want to get a full picture.”
Pertinent to finding an accused party responsible of sexual harassment or violence, schools are now encouraged to employ a higher standard of evidence. Obama-era guidelines required schools to use the lowest standard of proof, a preponderance of evidence standard. The more rigorous clear and convincing standard, potentially making it more difficult to find an accused party responsible, could soon be an option for schools across the nation. Discussing which standard CUNY would most likely choose, Mr. Carozza says, “I believe that CUNY would choose the preponderance of the evidence standard of review. It’s the standard that our Title IX coordinators have been working with since the ‘Dear Colleague Letter’… I think that that would be in line with CUNY’s values.”
The Education Department has estimated these changes would save between $286.4 and $367.7 million over the next decade. As the standard for investigating claims of sexual misconduct is lowered, the number of claims investigated is expected to decrease, saving colleges and participating schools from legal fees.
“Unfortunately, I see these changes as a shifting of a pendulum,” says a reflective Mr. Carozza while discussing the controversial revisions. He continues, “In 2011 the pendulum swung towards complainant’s rights, and now the pendulum is swinging back towards respondent’s rights.” He adds, “the larger concern is creating a culture of safety, a culture of respect, so that sexual misconduct incidents don’t happen, or at least so that individuals are aware of what the policies are.”