Perspectives on the Proposed Title IX Regulations from the Practitioners

It has long been agreed that the responsibility of sustaining a safe and socially-just campus community for all students was one that would be shared by both the Federal government and higher education institutions. Since that time, campus constituents have been wrestling with an imperfect piece of legislation that has provided rights to an education free from sex-based discrimination (including sexual misconduct and harassment), interim and support measures to remedy harm and restore access to one’s education, and campus adjudications of alleged offenders of violence.  Yet these rights have often either not been available or inequitably doled out to survivors through inconsistent or illegal campus protocol.  Despite this underlying baseline of business as usual, campus advocacy and prevention professionals have historically collaborated with campus stakeholders to use that same imperfectly-written amendment to offer a trauma-informed reframe that satisfies both the needs of survivors and the rights of the accused. Though historically vague and lacking in procedural absolutes, the Title IX of the Education Amendments of 1972 supported the notion that a historically white, exclusive, cis-gender, able-bodied, heteronormative institution could stretch and make room for historically-minoritized students seeking academic and social enlightenment.  The current draft of Title IX changes, however, does the exact opposite.

Devos’s changes mark an apathetic and dangerous misunderstanding of the root causes of interpersonal violence that leaves survivors faced with considerably more barriers to support and options for justice.  She has rendered the rights of survivors as less than optional and bases this on a world that simply isn’t supported by statistical data: one where survivors incessantly false report sexual violence (prevalence of false reports is between 2%-10%, Lisak, Gardinier, Nicksa, & Cote, 2010); one where perpetrators of violence exist solely outside of the campus community (1 in 5 female students and 1 in 20 male students are victimized while living on or near campus at a 4-year college, Washington Post & Kaiser Family Foundation, 2015); and one where accused students are the most vulnerable members of the campus population (the most vulnerable populations on campus are: women, underclassmen, racial, ethnic and sexual minorities, sorority women, student with disabilities, and students with past histories of sexual victimization, Fedina, L., Holmes, J. L., & Backes, B. L., 2018).

While it has been improperly argued that Title IX revisions under the Obama administration created an imbalance in due process for alleged offenders we now know that any attempt to pass these revisions as is will undoubtedly unravel wafer-thin baseline efforts already set forth to offer survivors options to holistic care after trauma. The reduction of protections and increased use of legal procedure suggested in the proposed guidelines are inherently biased toward a society that values the potential future of a respondent over accountability, and the safety and wellness of survivors of sexual misconduct. Similarly, the Department of Education’s attempt to put a price tag on policies, practices, and procedures intended to increase campus safety and wellness is indicative of a society that promotes, upholds, and perpetuates sexual and relationship violence.

Upon review of the newly proposed guidelines, the SRVPER KC has identified numerous areas of concern including but not limited to

• the reduced geographic scope of investigation responsibility
• the use of live hearings and cross-examination as outlined in the provided text
• the limitation for institutions to deny attorney participation in campus disciplinary proceedings in conjunction with the requirement that third parties represent students in disciplinary proceedings
• the removed requirement for institutions to provide a letter for religious exemption from legislation written to protect students from sexual misconduct
•  reducing the scope of the definition of sexual harassment
• taking away the previous guidance that asked TIX Coordinators to uphold requests for confidentiality
• reducing access options of interim measures from advocacy programs to only being received through a Title IX reporting process .

The newly proposed guidelines attempt to shift the duty of a higher education institution to functionally serve as a court of law when they are not provided the funds, legal protections, or capacity to do so - nor should they. The proposed guidelines in relation to live hearings are inherently flawed in their assumption that third parties or the use of technology can effectively avert the trauma induced by in-person questioning. Campuses across the country have effectively been providing options for complainants and respondents to assess and review statements within an investigation without being forced to face one another, offering opportunities for follow up questioning when needed. The SRVPER KC firmly stands in opposition to the requirements for live hearings and cross-examination as outlined in the proposed guidelines, and advocates that written assessments and reviews of provided statements be the preferred text.

As students should be required to adhere to their respective campus’ code of conduct throughout their tenure, campuses must hold their students accountable to their code of conduct regardless of their location or standing. The attempt to limit our institutions’ responsibility to respond to conduct that does not occur within its “education program or activity” in an attempt to reduce costs is both unethical and unrealistic. Reducing the scope of protections and accountability for students who cause harm to others will ultimately lead to an increase in psychological harm, decreased campus safety, decreased academic output, and lower retention rates. While financial cost should never be used to create a bright-line for justification to provide safer and healthier campuses for our students, the suggested changes to the scope of responsibility will result in greater costs for campus related to longitudinal needs for mental health and academic support.

It is with our decades of first-hand experience and contributions to research that the SRVPER KC unequivocally opposes the Department of Education’s newly proposed guidelines. We stand with survivors and commit to using our platform as an opportunity for change agents to learn more about options for activism within the 60 day notice-and-comment period.