On Wednesday, the U.S. Department of Education (DOE) amended Title IX rules to require live hearings during which students accused of sexual assault will have the right to have their accuser cross-examined. As a recipient of federal funding, the University must amend its current investigative procedures to comply.
“Over the coming weeks, the University will be carefully reviewing the new regulations and determining how to implement the new requirements in a way that best preserves our current system’s fairness, thoroughness, and sensitivity to the needs of all parties and witnesses,” Vice Provost for Institutional Equity and Diversity and Title IX Coordinator Michele Minter noted in a statement released this morning.
On May 6, the DOE’s Office of Civil Rights released an over-2000-page document outlining rules regarding Title IX and campus sexual assault. Significant changes to the regulations include the narrowing of the definition of “sexual harassment,” the limiting of complaints that colleges are required to investigate to only those filed through a “formal process”, and abandoning the requirement of using the “preponderance of evidence standard,” leaving the choice up to individual schools between that and the “clear and convincing evidence standard,” thus allowing schools to place a higher burden of proof on the accuser.
The new rules will take effect and “carry the force of law” as of August 14, according to the DOE statement.
The new “live hearings with cross-examination” will allow “advisers” of both the survivor and accused student, who can but are not required to be attorneys, to cross examine each party. For students who do not have their own adviser, Universities will be required to provide one for the hearing.
Under the new regulations, all other witnesses can also be cross examined. If a party — including the accusing student — declines a request to be cross-examined, the new rules state that the Title IX investigators may not use any of that party’s testimony in their decision-making.
The rules “seek to ensure that no student — complainant or respondent — is unjustifiably deprived of access to an education,” Secretary of Education Betsy DeVos said in a video released this morning. “Too often students have been forced to sue to secure centuries-old right to due process.”
In the past year alone, the University has been sued three times for alleged Title IX violations, prevailing in two cases with one still pending.
Opponents of the new regulation have argued, however, that these measures may deter victims of assault from seeking justice. The Obama administration policy that these rules supersede — known as the “Dear Colleague” letter — stated that such cross-examination “may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.”
In a statement on the National Women’s Law Center (NWLC) website, President and CEO of the organization Fatima Goss Graves argued that the regulation “protects abusers and harassers.”
“And if this rule goes into effect,” Graves added, “survivors will be denied their civil rights and will get the message loud and clear that there is no point in reporting assault.”
Representatives from Princeton IX Now, the student group responsible for last spring’s protests for Title IX reform, did not provide comment in time for publication.
The University has advocated against some of the changes previously suggested and now enacted by DeVos.
Last February, after Secretary DeVos released a proposal for rule changes, University officials worked with the American Association of Universities (AAU) to draft formal comments requesting the DOE to “remove requirements that institutions permit cross examination.” The University also worked with the New Jersey State Bar Association (NJSBA) to submit comments claiming that “mandatory live-cross examination of every witness in Title IX cases may have a chilling effect on complaints and witnesses and lead to an inequitable process.”
However, in her statement released this morning, Minter noted that “like all education institutions that receive federal funding, Princeton is required to amend its current policies to implement these new regulations.”
The new DOE regulation also allows schools to “select one of two standards of evidence.”
While previously required to adhere to a “preponderance of evidence” — where the burden of proof can be met by convincing investigators that there is a greater than 50 percent chance a claim is true — individual colleges and universities will now be able to choose between that standard and a “clear and convincing evidence” standard. If schools choose to do so, individuals who file Title IX complaints will have to show that their allegation is “highly and substantially more likely to be true than untrue.”
When asked specifically which burden of proof standard the University would choose to adopt, Deputy University Spokesperson Michael Hotchkiss wrote that the University does not have anything to add beyond Minter’s statement at this time.
“We will seek to share implementation plans broadly and to engage and seek input from the University community,” Minter noted in her statement.
Also included in the new regulations is a stricter definition of sexual harassment, meant to preserve “free speech rights,” according to the DOE release.
Following the new rules, all Title IX investigations will rely on three standards to define sexual harassment: Supreme Court’s Davis sexual harassment definition, which is harassment that is “so severe and pervasive and objectively offensive conduct” that it actively denies a person equal access to education [DOE’s italics]; the Clery Act definition of sexual harassment, which outlines four categories of harassment as sexual assault, dating violence, domestic violence, or stalking; and a quid pro quo definition outlined by the DOE as “an employee of the [university or school] conditioning the provision of an aid, benefit, or service of the recipient on the individual’s participation in unwelcome sexual conduct.”
These changes move away from past broader definitions, including the Title VII “workplace definition,” which denotes sexual harassment to be “severe or pervasive” conduct. The Obama administration also previously used a definition of harassment that included a conduct that “interferes with or limits” a student’s access to education, including “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”
By narrowing the definition of actionable sexual harassment, the DOE hopes to ensure that “Title IX is enforced consistent with the First Amendment,” with the document noting that a clearly outlined definition of sexual harassment could “prevent infringement of First Amendment freedoms.”
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