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U.S. Dept. of Education introduces new regulation proposal for sexual misconduct

November 17, 2018

The way schools handle sexual misconduct allegations could change significantly if a Title IX rule proposal, released today by the office of U.S. Secretary of Education Betsy DeVos, is implemented.

Title IX prohibits discrimination on the basis of sex within the education system. The new rule would add protections for students accused of assault, harassment or rape, and reduce liability faced by schools.

“Throughout this process, my focus was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment,” DeVos said in a news release. “That starts with having clear policies and fair processes that every student can rely on.”

The 149-page draft rule did not come as a surprise to Gonzaga University Title IX officer Stephanie Whaley, due in part to the New York Times’ leak of the proposal in late August. But Whaley said the Title IX guidelines – most recently adjusted in a “Dear Colleague” letter in 2017 – had been in conversation much longer than that.

“I think we were all expecting more structure around expectations related to due process and more narrowly defined definitions than what had been out there before,” she said.

One of the changes to due process would replace the Obama administration’s evidence standard in cases of reported sexual assault, from requiring a “preponderance of evidence” – meaning it is more likely than not that sexual harassment or violence occurred – to “clear and convincing evidence,” elevating the likelihood of an incident to highly probable or reasonably certain. When the preponderance standard was established in a “Dear Colleague” letter in early April 2011, Gonzaga adopted the guideline.

Dear Colleague letters are not legally binding for universities; the rule proposal, if approved, would be.

Whaley said “clear and convincing evidence” would likely fall somewhere between preponderance of evidence and criminal standards of “beyond a reasonable doubt,” but where on the spectrum she was not sure.

As Gonzaga’s Title IX officer, Whaley hears reports from students directly before gathering evidence and working with law enforcement when applicable. She makes a recommendation as to whether a case goes to a hearing, at which point it is turned over to the Office of Community Standards. She emphasized that university hearings were not legal proceedings, but rather used to determine whether a student had broken a rule in Gonzaga’s Code of Conduct.

Students who come forward often receive support from Lutheran Community Services Northwest. Crime Victim and Sexual Victim Advocate Kerry Handley works specifically with Gonzaga students to support them and inform them of the process should they choose to pursue options within the school or criminally.

No one has specifically approached her with concerns about the rule proposal, Handley said, but there was an “unsettled feeling” that comes with changes to Title IX. “Any of those changes have a rebound effect in some way or another,” she said.

Handley also had concerns that the changes might hinder students from coming forward.

“Sexual assault or sexual violence is challenging to prosecute in the criminal (justice system),” she said. “Changing to the ‘clear and convincing evidence’ (standard) will make it more intimidating to try to seek that support or help on campus.”

The rule would also adopt sexual assault guidelines as defined by the Clery Act, or “Any sexual act directed against another person, without consent of the victim, including instances where the victim is incapable of giving consent.” In the U.S. Department of Education’s news release under “Key provisions,” sexual harassment was defined as “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.”

Gonzaga, Eastern Washington and Whitworth universities all report in compliance with the Clery Act.

Whaley said that even if an incident did not meet the sexual assault guidelines, it could still be pursued if the action went against Gonzaga’s Code of Conduct, but acknowledged that these rules varied from university to university.

Currently, sexual harassment through guidance of Title IX is defined as “unwelcome conduct of a sexual nature, such as unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”

Sen. Patty Murray, D-Wash., said she was not in support of the draft rule.

“With this latest proposal, President Trump and Secretary DeVos are trying to take another step toward sweeping the scourge of sexual assault under the rug, weakening protections for students and survivors, and allowing colleges and universities to shirk their responsibility to keep students safe and in some cases, exempt themselves from their obligations under Title IX altogether without the Department even knowing,” Murray said in a statement.

The office of Rep. Cathy McMorris Rodgers did not immediately reply to a request for comment.

Though Title IX was implemented in 1973, its main aim was to provide women with equal opportunities in sports and academics. The focus did not shift toward sexual assault victims until 1997, when “Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties” was published in the Federal Register, according to a 2001 Revised Sexual Harassment Guidance issued by the Office for Civil Rights. This guidance established that “sexual harassment of students can be a form of sex discrimination covered by Title IX.”

According to the guidance, case law also solidified protection under Title IX, when the Supreme Court heard Gebser v. Lago Vista and Davis v. Monroe County Board of Education.

In the case of Gebser, the court determined that a school can be financially liable if a teacher sexually harasses a student. The proposal would adjust that rule, which currently states an institution is liable if they have actual knowledge or should have had knowledge of the incident; the school would only be liable if it had actual knowledge. The Davis case reaffirmed the Gebser case and included that the school would be responsible if it was a student harassing a fellow student.

The rule proposal also gives the accused a right to cross-examination, something that EWU Scary Feminists Club President Kelli Beseler said would be “very emotionally damaging.”

“We live in a society that often blames the victim in such cases, this is not OK,” Beseler said. “No one should be blamed for being hurt by the actions of others.”

The rule proposal has a 60-day public comment period which begins when the Federal Register publishes the document, which has not yet been scheduled according to the proposed rule document provided on the Department of Education website.

Whaley said that though she believes it would be inappropriate for her office to make a public comment, she would be sending Gonzaga students a link to the public comment website. She also did not feel comfortable expressing an opinion on the rule proposal.

The Whitworth Title IX officer, Rhosetta Rhodes, could not be reached by time of publication, nor could Eastern Washington University Title IX officer Jeff Lamoureaux.

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