“Secretary of Education Betsy DeVos at CPAC 2017 Feb 23rd 2017 by Michael Vadon” by Michael Vadon is licensed under CC BY 2.0

 

In early May of 2020, the U.S. Department of Education released new Title IX regulations, which were set to go into effect as of Aug. 14. These regulations have met considerable public backlash and have been criticized for taking away power from the complainant (the alleged victim) and controlling universities’ options when it comes to navigating complaints. WCU is one of many public universities across the nation that must comply with these changes and handle the response, including updates. Although changes were posted to the university’s website at an earlier date, the Office for Diversity, Equity & Inclusion hosted an open forum last Wednesday to aid in explaining these changes and answering student questions. 

The Title IX clause, which originates from the 1972 Federal Education Amendments Act, was established to prohibit sex discrimination in educational programs and activities that are federally funded, such as athletics. However, the clause shifted over the years to include that schools be obligated to investigate allegations of sexual harassment (including sexual assault) committed both on and off school grounds by either students, educators, prospective students or employees. The U.S. Secretary of Education Betsy DeVos proposed a draft of new regulations in November of 2018, which began the long process of working to address public comments before finalizing these changes. Devos has openly stated that the intent of these changes was to better protect the accused (also known as the respondent). This includes redefining how campuses can respond to sexual assault claims and even redefining what sexual assault is.

Some changes only altered a single word but significantly altered the meaning of the text. For example, the original definition of sexual harassment stated that it was conduct that was considered severe, pervasive or objectively offensive, but it is now recognized that institutions conducting an investigation have to determine that there are reasonable and objective facts that support the violation, accompanied by a person’s reaction to what has occurred. According to the preamble of regulations determined in May, the new language of the Title IX guidance now recognizes that sexual harassment can be defined as “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s [survivor’s] education program or activity.” This significantly changes what can be defined as sexual harassment, and therefore, what is protected under Title IX.

Title IX coordinators ensure that institutions, such as WCU, comply with the clause’s guidelines by responding to and investigating complaints on the basis of sex and gender discrimination.  Complaints may include sexual violence, domestic violence, dating violence, stalking and other offenses.  

One new regulation requires that if legal action is taken, both the respondent, complainant and all witnesses are to be cross-examined by their opposing party’s advisor. The public has voiced concern that this could cause more trauma to the victim. Title IX coordinator Lynne Klingensmith, one of four faculty that hosted last Wednesday’s open forum, explained this process.

“For cross-examination, the advisors will be asking the questions, again, through the Hearing Board. The Hearing Board, comprised of three people, has one person who serves as the Decision-Maker. This person is tasked with determining the relevancy of any question that is posed to one of the parties or a witness… a Conduct proceeding in and of itself is emotionally taxing — no one would deny that. Having the support and guidance of an Advisor may help to this end,” said Klingensmith.

As the coordinators are required to notify both parties of any pertinent information regarding a complaint, if a student or employee alleged in conduct that poses a threat to the university and/or community, Title IX now allows for an “emergency removal” to take place, thereby allowing that a person “may be temporarily removed pending an investigation,” as Klingensmith explained during the panel. The use of expert witnesses have also been added to these changes, such as someone who has expertise in trauma and can speak to the reactions or behaviors a survivor had during and after the incident.

Where new regulations like cross examination leave little room for debate, some still allow universities to go above and beyond. One example of this is the new regulation that only requires universities to respond to incidents that happened on their campus; despite this change, many universities have chosen to continue to address off-campus incidents, including WCU.

“This was a collective decision by all 14 PASSHE schools. We believed there was value in providing support and resources to students that was not limited by how the regulations defined ‘regulatory conduct.’ Historically, the majority of our incidents take place off campus and are not related to educational program or activity,” said Klingensmith.

The hearing process of a Title IX investigation has also been revamped, including required real-time hearings and recordings, advisors provided by the institution, cross-examinations and the presence of a decision-maker to determine the relevance of each question. 

This semester’s remote learning environment has made it difficult to measure the effect of the Title IX changes. Klingensmith says that though there are still reports pouring in, there are too many variables to distinguish what the full impact of the changes are.

“I do not believe that we have experienced what I would consider the full impact of the changes,” said Klingensmith. “We have continued to receive reports since we have been remote — a number of them have been related to domestic violence, which is reflective of national data attributable to the impact of COVID restrictions. Our response to these reports is the same — reaching out, making sure complainants are safe, providing resources and support (and also including community resources that are local to where the respondent is living).”

However, there is a possibility that these new policy changes could affect a survivor’s willingness to come forward. “Someone’s willingness to come forward may depend on what they have ‘heard’ about our policy or process (which may not align with the policy),” Klingensmith explained. “This Town Hall was a first step, and we will continue to find ways in which to communicate this very important information to students, faculty and staff.” Klingensmith mentions that, as a reminder, no complainant is under any obligation to respond to anything related to their incident. Additionally, any incident that has occured before Aug. 14, 2020, is not subject to the new policy, and coordinators would then defer to last year’s policy.

Students who wish to aid victims are encouraged to participate in programs such as StepUp and Green Dot. Students who are concerned with the changes to Title IX should communicate with their congresspeople and respective senators to ensure that their voice is heard. WCU’s Center for Women and Gender Equity, Student Affairs, as well as the Office for Diversity, Equity & Inclusion are also resources that offer educational programs on materials like Title IX. 

For more information regarding Title IX updates, students can check out the The Office for Diversity, Equity & Inclusion’s webpage on the WCU website. 

 

 

Caroline Helms is a second-year English major with minors in Political Science and Journalism. CH923631@wcupa.edu

Nikki Haslett is a fourth-year English Writings major with a journalism minor. NH890081@wcupa.edu

Leave a Comment