Almost 18 months into her tenure as education secretary, Betsy Devos is formulating new policies around sexual misconduct and college campuses, according to proposed rules obtained by The New York Times.
The proposals include “narrowing the definition of sexual harassment, holding schools accountable only for formal complaints filed through proper authorities and for conduct said to have occurred on their campuses,” the Times article reads.
Melinda Stoops, associate vice president for student affairs and BC’s Title IX coordinator, acknowledged some of the uncertainties over the future direction of Title IX policy, particular as it relates to sexual assault.
“But what I can say, as people enter this academic year, that if you look at our policies, if you look at our processes, this information that is in the news today, isn’t going to have us make any changes to that at this time,” she said.
While at this moment, any new policies are a long way from being implemented, these proposals signal a possible direction the Trump administration will take Title IX policy, and the potential implications for BC are unclear.
“We’re really two steps away from regulations,” said R. Shep Melnick, a professor of political science at Boston College and author of The Transformation of Title IX: Regulating Gender Equality in Education, which was published last March.
“We have not yet seen the proposal, all we’ve seen is the Times report, which I thought was probably a good article, a fair description, but we don’t know, we haven’t seen everything yet,” he added. “And once those proposals are out there, there’ll be time for comments, and they’re going to probably change in important ways between the proposal and the final rule.”
Title IX, which prohibits discrimination by sex in any education program or activity receiving federal financial assistance, is best known for increasing the participation of women in college athletics. The statute, however, has been expanded by the regulatory activity of subsequent administrations since its passage in 1972. It now covers issues ranging from how colleges must respond to allegations of sexual assault to the more recent battles over transgender rights.
Last September, Devos rescinded a 2011 “Dear Colleague Letter” issued by the Obama administration, which detailed how schools should respond to complaints of sexual harassment. While some supported the Obama administration’s steps to increase accountability, others saw the rules as an infringement on due-process rights for the accused.
Stoops mentioned that Devos has met with a wide range of stakeholders, including representatives of people accused of sexual violence, and those who have raised questions concerning the rights of the accused.
On the subject of due process, Melnick mentioned that the regulation has been criticized by a wide variety of people of every political leaning.
“From what I’ve gathered from reports on what they’re proposing is they’re going to make some modifications in the guidelines, especially on the question of due process, which is really crucial,” Melnick said. “Especially to bring the Department of Education’s interpretation more in line with what the Supreme Court has said, and to give schools more flexibility.”
The Supreme Court defines sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” The Obama guidance was more expansive in its definition, saying sexual harassment including “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”
A key issue for colleges and universities’ handling and investigation of claims of sexual assault is the standard of evidence they choose to use. Institutions of higher education, including BC, use the “preponderance of the evidence” standard. This standard is met if the evidence says that the defendant is more likely than not to have been responsible for what he or she is accused of.
Another standard of evidence exists: clear and convincing evidence. This standard requires a higher burden of proof than a preponderance of the evidence, but is lower than the highest standard: beyond a reasonable doubt.
The beyond a reasonable doubt standard is used in criminal cases, while the preponderance standard is typically used in civil cases.
Melnick explained that under the Obama administration, some schools had the clear and convincing standard for every other offense, but had used the lower standard, preponderance, for sexual assault because the Department of Education required it.
“That is a real anomaly because what that said is if you’re accused of something, that is about the most serious thing you can be charged with on campus, other than murder, and that’s going to go the courts, then the standard of proof is less,” he said.
Melnick thinks that the Department of Education is likely to tell institutions that if they use the clear and convincing standard to address issues of student conduct besides sexual assault, then sexual assault cannot then be investigated at the lower preponderance standard. However, if an institution chooses preponderance as the standard for all conduct proceedings, as it is for BC, that is also permissible. In short, consistency matters.
Melnick explained that his understanding of where the Trump administration stands in regards to forcing schools to change the policy they have on the books is that they won’t: What the administration is asking is that schools avoid singling out sexual assault or harassment allegations in particular and defining a lower standard of proof for those issues.
“One will obviously have to wait and see what the final outcome is,” Stoops said. “BC will obviously comply with the law and if we were told we had to change it, we would of course do what we have to under the law and if we were told we had to change it, we would of course do what we have to do under the law. But where it stands right now is that there’s more flexibility.”
She went on to say that BC has not made any changes to its Title IX policy yet since DeVos’s proposed guidelines have not gone through the necessary comment and review process, preliminary steps for most proposed regulatory changes.
If federal standards remain the same, the University would not make changes because using preponderance of evidence is “consistent with” how BC handles every student conduct case.
Melnick says there are two reasons that schools use the preponderance standard. One is inertia, for many schools have used the preponderance standard for years. The second, and more important, reason is the efforts of the Obama administration: Schools had to change their rules because of the threat of being investigated by the federal government.
“The point I’d like to stress is that the Obama administration’s efforts really focused on building up very large Title IX compliance offices, and as anyone who’s studied political science knows, once you’ve created a bureaucracy, they’re not going to change unless they’re forced to,” Melnick said.
Another facet that ties together concerns about proper investigatory procedures and due process rights around sexual assault is the issue of mediation. Stoops said that mediation is not appropriate in every sexual assault case, but would not rule out the possibility that mediation could be the correct way to handle a claim.
“In terms of the ability to cross-examine one another, it’s interesting, because in the past with a hearing-based model, people did have the opportunity to be in the same room and ask questions to one another, not to each other, but through the chair of … the hearing board,” she said.
That model creates multiple concerns. A person in the position where he or she needed to file a complaint might be fearful of doing so due to the looming spectre of potential cross-examination, according to both Stoops and Melnick.
“The goal in the Obama administration [was] to make it as easy as possible to reduce the pain and retraumatization created by the process,” Melnick said. “Many schools have interpreted this in a way that made it virtually impossible for someone who is accused to hear about the charges.
“So the big question is, isn’t there some type of process that you can create where you don’t have direct confrontation, but that you have the ability, the crucial ability for those who are accused, to know what the complaints are, to know what the evidence is, and be able to challenge some of the claims? And it strikes me that it is quite possible to do that.”
If mediation is optional and not required in new Trump administration guidelines, Stoops is of the opinion that making such a change isn’t exactly necessary.
“If it’s optional, I think our current system works really well, because there is a way for people to raise concerns or questions based on what the other party has done, it’s just not face to face,” she said. “But that’s one of those where I really want to wait and see what comes out.”
Particularly noteworthy for BC, given the number of students that live off campus, is that under the Trump administration’s proposed new rules, schools would only be held responsible for incidents that take place on campus. This would represent a change from the current policy put in place by the Obama administration, which requires schools to investigate complaints no matter where the incident took place.
Melnick pointed out that if a situation occurred where students had allegations leveled against them in another state while on break from their university, these new regulations would make it so that universities aren’t responsible for addressing the effects of that result—local law enforcement would have to handle it. On the other hand, Melnick said that the comment period would be a good resource for defining the law more precisely in order to lay out explicitly how schools are responsible for various Title IX situations.
“I think the Trump administration is trying to rein in, to say ‘let’s not extend the responsibility of schools over which they have absolutely no control,’” he said.
A gray area Melnick cited as a spot where comment would be necessary is the matter of fraternities, sororities, and off-campus housing.
“My guess is, and what I’d like to see them do is there are some things that are so tightly to the school that they do have responsibility there as well,” Melnick said. “My guess is, for off-campus housing, especially when BC does not provide off-campus housing for juniors, that that probably should be included.”
Melnick did note that schools could take responsibility on their own accord of far more than what Office of Civil Rights (OCR) requires they do.
Stoops believes that the issue is dependent on exactly how the laws end up being defined, but it is unlikely that BC will stop being responsible for off-campus incidents.
“Putting Title IX aside, we certainly hold students accountable for certain off-campus behaviors that have nothing to do with Title IX,” she said. “So there’s no reason to think that would change, and again that might be sort of what policy it falls under or how we process it, but I don’t anticipate that we would all of a sudden not be concerned about incidents of sexual violence off campus when we are concerned about other violations of policy off campus.”
“I think in the end if we know about something of concern, our concern is for the well-being of every member of the community, and so we wouldn’t choose to not pursue something or not investigate it just because we’re told we don’t have to.”
To Melnick, BC’s approach to Title IX is going to continue to be defined more by the University’s chief priority—taking care of its students—than anything else.
“Schools are genuinely concerned about the welfare of their students,” he said. “And to the extent that there is a strong belief that sexual misconduct is rampant, then they are going to make a good faith effort to try and do something about it … But there is no doubt that there are a large number of women in almost every school that have had troubling sexual relations. To the extent that schools can address that, and think of ways of protecting freshman women from being in circumstances that are going to end badly, schools take that responsibility seriously and want to do something about it.”
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