A few weeks ago, the Department of Education released a long-anticipated proposal for changing the regulations laid out in Title IX that allows lawyers to play a larger role in proceedings, which may deter victims from speaking out.
The proposal could notably impact the legal requirements for colleges’ handling of sexual misconduct. One of the major changes is the proposed right for a lawyer to cross-examine accusers. Some worry this will discourage victims from taking action.
The proposal, which represents the first regulatory changes to Title IX in years, is currently in a 60-day period of public comment.
Title IX is the federal civil rights law passed in 1972 which prohibits discrimination on the basis of sex within educational programs. However, Title IX is most well-known for creating rules which dictate institutional responses to cases of sexual misconduct.
“There could still be a fairly significant shift during the public comment period,” said Michele Minter, the University’s vice provost for institutional equity and diversity. “We’re working to understand what’s in the proposed regulations and think with our counterparts at other schools about what kind of questions or comments we might want to make.”
In handling cases of sexual misconduct, Minter explained that Title IX sets the minimum requirements, and that University policy expands on federal regulations to fit institutional needs.
“We work hard to get the balance right between keeping the campus safe and being able to respond when there’s an allegation of an incident, and doing it in a way that’s very fair and respectful to all the parties,” Minter said.
Some University students are concerned.
“Seventy-seven percent of sexual assaults currently go unreported, and implementing these Title IX changes will only increase that number by creating a more hostile environment for the victims who do choose to report,” said Tamar Willis ’19, one of the presidents of Princeton Students for Reproductive Justice (PSRJ).
The cross-examination model is different from the University’s current system and could make the legal procedures for reporting sexual misconduct more intimidating.
“It’s already a stressful and challenging process to go through,” Minter said. “I think this would make it more stressful.”
For resources such as Princeton’s Sexual Harassment/Assault Advising, Resources and Education (SHARE) office, the impact will be less overt.
“At SHARE we aim to provide a survivor-centered and trauma-informed response to all of our students,” SHARE director Jackie Deitch-Stackhouse said in a statement. “That aim will not be changed, regardless of any modifications to laws or policies.”
But for people who want to pursue legal action, the system will change.
A significant stipulation of the proposal is the reduced range of incidents that colleges would be required to consider. With the Department of Education’s modifications, only cases that occurred on the college campus would be subject to university investigation.
At the University, Minter said that “we would very likely continue to view scope exactly the same way we do now, which is to say the campus and the local vicinity, including the eating clubs.”
However, this change could have a greater impact at other universities where a majority of students live off-campus. The handling of sexual misconduct is location-specific, but federal regulations fail to adapt.
“Government oversight is appropriate. It's just that a one-size-fits-all approach doesn’t work that well, because the institutions are so different,” Minter said.
In light of recent widespread instances of sexual abuse on college campuses and the popular #MeToo movement, Title IX has been caught in the political debate. The Department of Education’s proposal is part of this ongoing conversation, embedding the current administration’s ideals.
“I think we can all agree we want students to be safe and we want students to be treated fairly, but there are very different points of view, depending on what administration is in power, as to how that should be accomplished, and that’s a challenge on campuses,” Minter said.
The proposal recommends changing the definition of sexual harassment from “unwelcome conduct of a sexual nature” to “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 recipient’s education program or activity.”
Minter said that although the Obama administration made no official changes to Title IX regulations, it issued “guidance” on how to implement the law. Guidance is technically a form of suggestion, but by threatening to withdraw federal funding, it had the force of a mandate.
“The Trump administration is actually following the correct process for issuing regulations,” Minter said.
Still, some view the Department of Education proposal as a step backward in terms of handling sexual misconduct in educational institutions, limiting scope and raising the standard for evidence.
“Instituting such changes would be utterly detrimental to the health and safety of students and would disenfranchise sexual assault survivors, leaving students who report sexual assault without a road map to justice,” Willis said.
The final regulations have not been set in stone, but the current period of public comment has allowed people to read and consider the proposal.
“Students of course should educate themselves about it,” Minter said. “If they have thoughts, public comments are welcomed and sought, and student voices are important.”