By Lianna Hubbard, Jessica Miller and Serena Tartaglia
Proposed Title IX regulations from the U.S. Department of Education, released in November, restrict what qualifies as sexual harassment and create a double standard between faculty and student conduct.
These proposed rules from the Secretary of Education, Betsy DeVos, are an interpretation of Title IX, which prohibits discrimination on the basis of sex at federally funded schools like FSW and its associated high schools.
Guidelines from the Obama administration were known for their protection of victims of sexual harassment. The new proposed rules are geared to protecting the rights of the accused.
“I think it’s more important than ever that the colleges, regardless, have to try to stay down the middle,” said Jana Sabo, FSW’s Title IX Coordinator, referring to the balance of accused and victims’ rights. “Whatever you provide for the victims you should provide for the accused, which we do but other colleges don’t.”
The proposed rules ended their 60-day comment period, when citizens submitted their opinions and concerns about the rules at regulations.gov, on Jan. 28. The Department of Education is expected to release revised regulations within this year.
Sabo’s office is conducting a student and faculty survey on harassment, discrimination and sexual misconduct at FSW.
She predicts that under the new regulations, FSW will keep many of its old systems, but some school policies will be forced to change.
No person in the United States shall, on the basis sex, be excluded from participation in, be denied the benefits of, or subjected to discrimination under any education program or activity receiving Federal financial assistance.– Title IX of the Civil Rights Act of 1964
One expected change that will effect FSW is the narrowing of the definition of sexual harassment.
Obama-era guidelines defined sexual harassment as “unwelcome conduct of a sexual nature.” The proposed new rules redefine it 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 recipient’s education program or activity.”
Sabo thinks the rule change will make investigating sexual harassment cases more difficult and extensive. Instead of having to prove that harassment meets one of the criteria of severe, pervasive, or objectively offensive, investigators will have to prove that all three are met.
The proposed rules also create a double standard among students and faculty accused of sexual harassment.
“We have two different enforcement agencies that aren’t saying the same thing,” said Sabo.
DeVos’ proposed regulations could change the Department of Education’s Office for Civil Rights (OCR), which protects students under Title IX.
Employees are also protected from discrimination on the basis of sex, by another amendment through the Equal Employment Opportunity Commission (EEOC).
The proposed regulations only apply to the OCR, changing sexual harassment to include “and” in the definition. The EEOC will keep its definition of sexual harassment as “severe, pervasive or objectively offensive.”
This one-word change makes a big difference. Student harassment cases must meet the all three criteria, while employee cases must meet just one.
“To me it says they don’t care about students as much as they care about staff and faculty,” said Sabo.
Student or employee?
The new rules also present a problem for FSW, which has many students who work at the school and many employees who take classes. Since the rules for employees and students could be different, there is no clear guide for which rules to use when a person has both roles.
“I still advocate for having them [the rules] be the same [for both groups],” said Sabo.
Last year, the former FSW provost, Jeffrey Stewart, resigned after a Title IX investigation found that he sexually harassed four employees and a student who works for the school. FSW agreed to pay a settlement of $300,000 to one of the employee victims. Part of this case would have fallen into a gray area under the new rules, Sabo said, since it is not clear whether a person who works and takes classes is an employee or a student.
A more exasperating double standard is between the processes for K-12 and higher education cases. These differences are many, including how complaints are reported, and the school’s exact responsibility to the student.
FSW has a state college and two high schools. Many dual-enrolled students from other area high schools also take classes on campus.
When students notify a school of an incident, it is obligated to act in some way to safeguard the educational integrity of the victim, whether this be a grievance or simply informing the victim of their rights.
Schools are notified by victims reporting to “responsible employees” that the school designates.
Under the new regulations, all K-12 teachers, staff, and faculty are responsible employees. The requirement for higher-education responsible employees is being limited under the new rules.
Currently, FSW assigns all staff and higher administration, not professors, as responsible employees. Sabo predicts the school will keep its standards the same, but the proposed rules open them up, so that other schools don’t have to.
Under the proposed regulations a school must only investigate Title IX cases if they happen on campus or at campus-sponsored events and are reported to qualified individuals.
Sabo predicts that FSW will continue to investigate cases involving students that occur off campus.
“These things effect our students the same way whether they happen on or off campus,” said Sabo. “We on the state college level have a much bigger interest in how what happens to you off campus affects you on campus.”
The process of investigating Title IX complaints would also change under the new regulations, if the cases went through the school’s grievance process.
Currently FSW uses a process where a victim can choose to enter a grievance process. In this case, the incident is investigated by Sabo, who decides whether a policy was violated and recommends actions the school should take.
If either the victim or accused want to appeal the decision, they can do so through a hearing panel or single administrator meeting.
The proposed rules would ban schools from using a “single investigator” system on such cases, which is what FSW does.
“I am the single investigator,” said Sabo. “I am the person who receives the complaint; I investigate the complaint and I decide if policies have been violated.”
Sabo is doing three jobs: Title IX coordinator, investigator, and decision maker.
If the official regulations insist single-investigator systems be eliminated, Sabo and her supervisors will have to choose which job she occupies and FSW will have to fill the two others.
“To have the decision-making process farmed out to someone who doesn’t do this full time, that’s problematic,” said Sabo, “same as someone who doesn’t investigate full time.”
Another one of the changes the proposed regulations could bring is the introduction of cross examination to grievance process.
This cross examination can be performed by any support of the accused or victim, from an attorney to the student’s parents.
Under current FSW grievance process, a victim and accused can submit questions they would like the other to be asked in writing to the panel or administrator. The panel or administrator will then decide whether the question is relevant to the decision.
Sabo worries about the logistics of this possible change. FSW must provide equal support to each party. If one party hires an attorney as their representation, it is unclear who is responsible for supplying an attorney to the other party.
Sabo says five of the Title IX complaints she investigated over the last four years went to a hearing panel or single administrator meeting. Most were resolved by a victim not pursuing formal action or pursuing supportive action, like moving classes or making up missed tests due to the incident.
Standards of evidence
Obama-era guidelines required schools to use the lowest standard of evidence, “preponderance of evidence”, in formal investigation decision making. The proposed rules allow schools to use standards of evidence above preponderance of evidence, like “clear and convincing” evidence. This means that more definitive data will be needed to prove an accused guilty.
Sabo says that FSW will keep its preponderance of evidence standard.
“It’s difficult enough for victims to prove their case,” said Sabo. “This (using clear and convincing evidence standard) would make it near impossible.”
When the comment period ends and official regulations are released, which Sabo expects to be within the year, FSW will have many policy changes to make.
For most cases, like standard of evidence and off-campus jurisdiction, FSW will keep its current policies, but for others, they will have to adapt to the new rules.
“These regulations would set the floor,” said Sabo, “then we determine where the ceiling is.”