Proposed Title IX changes introduced by Secretary of Education Betsy DeVos in November of last year stirred controversy and pitted advocates for victims of sexual misconduct and accused students against each other — and left universities in the middle.
The proposal is still open for public comments, but before it goes through Congress, all the submitted comments must be considered. It is unclear when this will happen. Victim advocates fear that the changes could discourage victims from coming forward, whereas accused students' advocates say that the proposal puts the two parties on equal ground, allowing for a reliable, uniform process.
A courtroom or a classroom?
Introduced in 1972 to prohibit discrimination on the basis of sex in educational environments, Title IX later developed to include sexual violence and misconduct as an act of sex-based discrimination. The most recent proposal in 2018 reverses most of the Department of Education guidelines written during the Obama administration and brings administrative and criminal processes closer than ever.
Title IX establishes how schools have to address cases of sexual assault or harassment in an educational setting and establishes an administrative process that, according to University of Oregon Title IX Coordinator Darci Heroy, might take from six to nine months for a case to be investigated and concluded.
By default, Title IX cases are administrative, which means that the accused and the accuser don’t go through trials, have attorneys or need a grand jury. But according to the proposed revisions, that may all change.
The proposal establishes that if one of the parties involved wants to challenge the evidence because they say there might have been a mistake or bias during the investigation, they can demand a cross-examination, meaning that one of the parties can demand that the evidence is re-examined to make sure it is accurate.
Live hearings are another type of criminal standard that might be applied on the school’s Title IX administrative process. It is a setting similar to a courtroom — two people, sitting apart from each other, telling their side of the story with another person appointed by the university as a mediator.
If the proposal becomes law, and cross-examination and live hearings become part of the administrative process, the accusers might develop a more critical emotional trauma, according to victim advocates such as Katherine McGerald, executive director of SurvJustice, an organization that offers legal assistance for victims of sexual assault. She says that this might ultimately discourage future reports of sexual misconduct.
"[The proposed guidelines] will make campuses less safe. It diminishes and retraumatizes what happens to victims," she said. "People aren't going to know what to do, and I don't want to go back to the days when cases of sexual assault were swept under the rug."
On the other hand, the proposed rules are steps in the right direction to a more egalitarian process that yields more accurate results, says Cynthia Garrett, co-president of Families Advocating for Campus Equality, an organization that supports students falsely accused of sexual misconduct. She said that the current rules have a gender bias and favor accusers, leaving accused students in a disadvantage that could also lead to emotional distress.
"They're afraid, basically," she said. "If you're public about this and you've been accused of such a thing, you have difficulty getting jobs, you have difficulty getting into another school, people shun you — in fact, people communicate a lot of disgust toward you."
The Title IX timeframe
Heroy also said that the proposed process will take more time to be completed, especially by introducing procedures that are "quasi-trial."
The flaw with having a cross-examination, Heroy said, is that if someone does not want to follow this process, they don’t have to. Because it is an administrative process, UO has limited power. They are not allowed to subpoena someone like in a trial or force a party to consent to cross-examination.
"If someone was not willing to cross-examine, we couldn't test the information and that way we couldn't consider that information at all in the process,” Heroy said. “It would have to be entirely excluded."
The school also cannot require a student to be interviewed, and the worst-case scenario for accused students is expulsion with a permanent mark on their academic transcripts.
Although it might take more time, the decisions can also be more reliable for the parties involved in the process, according to advocates for the accused student's rights such as Garrett. She said that cross-examination can lead to an equal process with no margins of error for students who have been falsely accused.
On the other hand, McGerald said that cross-examination might be used by the accused student's party as a tool to "harass, intimidate and confuse" victims.
If the victims are willing to go through with a criminal process, UO can send a request to the University of Oregon Police Department. So far in the 2018-19 academic year, UOPD has received 21 sexual misconduct cases, most of them reported in late 2018, according to the UOPD crime log.
Emotional and monetary costs of the changes
All of this comes with a cost, and Heroy said that the Department of Education doesn't understand the financial impacts of the changes.
"[The Department of Education] wildly underestimated costs," Heroy said.
One of the proposed rules is to eliminate the single investigator model, which is a person appointed by UO to gather evidence on a case of sexual misconduct and ultimately make the decision of whether there was enough data to suggest there was sexual misconduct. By ruling this model out, universities will have increased costs, according to an open letter by Title IX coordinators across Oregon.
The proposal requires that instead of one investigator per case, at least two investigators are responsible for gathering evidence. This will have a financial impact on the university and possibly the students. UO currently has three investigators and is employing a fourth. Investigators are paid between $77,000 and $80,000 annually by the General Fund, which includes tuition money.
Although the university said that the extra investigators will increase costs, both McGerald and Garrett agree that this is beneficial for accuser and accused alike because it allows for a more objective investigation.
"Single investigator [cases] can be extremely problematic for either the accused or the accuser," McGerald said, "because what if you have an investigator with gender bias against women or a gender bias towards men?"
Contrary to McGerald, UO's Heroy said that, in addition to being cheaper, the current model is also more efficient. She says that UO’s investigative team, comprised of three investigators and one manager of investigations, deliberate on evidence among themselves before making a decision.
If the proposal becomes law, Heroy said that UO will need to emphasize prevention education efforts in order to avoid a lengthier and costlier process that could hamper victims' willingness to come forward with allegations.
According to McGerald, the emotional toll on victims for having to face their perpetrators during the new process, which might lead to fewer reports, will ultimately make campuses less safe.
"People who commit acts of sexual assault aren't going to be held responsible, so campuses are less safe," said McGerald.
Even though the proposal can become costly for UO, the changes will not significantly affect the community, said Heroy. She says she hopes students and community members "don't get too freaked out about the proposed changes," and that Oregon’s laws, which are stricter than the national guidelines, will fill possible gaps.
What falls into Title IX?
Garrett, who is an advocate for the rights of accused students, supports almost all the proposed changes. McGerald is on the other side being an advocate for victims and is generally opposed to the proposal. But both agree that the proposed definitions of sexual harassment are limiting.
The current Department of Education's 2014 guideline states that "sexual violence means physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent."
The proposed rules, on the other hand, define sexual harassment as "consistent with U.S. Supreme Court precedent, 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 school’s education program or activity."
If a case of sexual misconduct doesn't fit into these parameters, the charges will be dropped and there won't be an administrative process. This limited range of possibilities to hold perpetrators accountable might discourage victims from reporting cases of sexual misconduct, according to a public comment by SurvJustice.
Currently, schools that receive federal funds and are therefore under Title IX can be held responsible for not addressing a case of sexual misconduct even when there is no formal complaint submitted by the accuser. But the proposed changes establish that schools will only be held accountable for not addressing Title IX when there is "deliberate indifference," meaning that when the Title IX Coordinator submits an official report of sexual misconduct filed by the victim and the school decides not to act on it, the school can be held responsible.
According to SurvJustice's public comment, this is yet another bad idea. "The department has long required schools to address student-on-student sexual harassment if almost any school employee either knew about it or should reasonably have known about it," the document read.
In 2014, UO went through scrutiny when basketball player Kavell Bigby-Williams was accepted into Oregon's program while under investigation for sexual assault at Gillette University. An investigation carried by the Emerald showed that though UO had knowledge of the formal complaint and investigation underway in Wyoming, the school nonetheless delayed the due process.
Bigby-Williams’ case was important for UO's handling of sexual assault cases, Heroy said. But it is unclear what may again change for students who are either victims or accused of sexual misconduct if Secretary of Education DeVos' proposal becomes law.
"We have more state protections here because of the state laws. I think, unfortunately, some other states will have more uncertainty because they don't have those same protections," said Heroy, "but our intent is to keep moving forward with supporting students."