By MARTY LEVINE
The new Title IX regulations of the Trump administration — if the Trump administration continues beyond Jan. 20, 2021 — will change the ways in which hearings are conducted on accusations of sexual discrimination and misconduct and the ways in which those who aid victims are instructed to do so.
Deborah Brake, a law faculty member who specializes in gender equality issues, introduced some of the changes during the second installment of the Sexual Violence Prevention and Education Office’s series of panels, “Shattering the Statistics: Unpacking the New Title IX Regulations,” on Oct. 22.
Although the original 1972 language of Title IX, about gender discrimination in educational programs, doesn’t mention sexual harassment or violence, courts in the 1980s and beyond began to recognize that sexual misconduct was a form of discrimination. Title IX thus placed obligations on educational institutions to create policies that respond to sexual harassment cases.
By the administration of President Barack Obama, the Department of Education, through its Office of Civil Rights, provided guidelines to universities that mandated appropriate corrective action and “prompt and fair grievance procedures," Brake noted.
The guidelines allowed for interim measures to alleviate the situation where appropriate and called for a preponderance of evidence to decide each case, rather than the more rigorous “clear and convincing” evidence. The guidance also cautioned universities about the intimidation inherent in cross-examination procedures and about the right to see and respond to evidence during hearings.
When the Trump regulations were promulgated to replace Obama’s, “from the beginning the tone appeared different,” Brake said. The new regulations seemed to reflect allegations from previously disciplined students who “claimed they were railroaded (and) treated unfairly,” she noted.
The interim head of the Office of Civil Rights under Trump even told the New York Times that, in his opinion, “90 percent” of allegations of sexual misconduct under Title IX “fall into the category of ‘we were both drunk,’ we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.”
Brake found the new regulations, which went into effect on Aug. 14, 2020, “frankly stunning.” The regulations force sexual harassment allegations to meet a higher standard than general harassment allegations and “narrow the definition of what sexual harassment is,” she said. The new rules also don’t take into account how sexual harassment may involve harassment for race or other factors, and do not cover allegations that take place off campus or anywhere outside the country.
The new hearing procedures, which must take place in-person and allow for a broader category of “advisor” to conduct cross examination, Brake labels “most controversial … and quite an about face” from previous procedures, where video-conference hearings were permissible.
Katie Pope, associate vice chancellor of civil rights and Title IX, assured that “the way that you report sexual misconduct remains the same as it has been for the last five years at the University,” and that “we also still have our University Sexual Misconduct Policy,” which can cover in-class or remote incidents. She also said that past cases can’t be appealed and re-heard under the new regulations.
But panelist Megan Schroeder, supervisor of victim response at Pittsburgh Action Against Rape, expressed worry that the new regulations narrow what can be reported. “We see a lot of parallels in the new guidelines to our criminal justice system,” Schroeder said, where survivors of sexual violence fear the outcome so much that it prevents them from reporting an incident.
Panelist Clyde Wilson Pickett, vice chancellor for Diversity and Inclusion, asked how the University could still implement “trauma-informed practices” when approached by alleged victims of sexual assault under the new regulations.
Brake responded with “a very legalistic, cautious note I feel I need to make: Avoid any impression that (the University) has incorporated what the current department (of education) would see as gender-bias into the training material,” since the Trump administration sees such practices as favoring the usually female victim over the usually male accused person.
While Brake doesn’t endorse such attitudes, she said, there has recently been pushback against “a readiness to believe women as survivors,” including court cases claiming gender discrimination against men in harassment case decisions.
“That doesn’t mean that trauma-informed training can’t be done,” she said. “There just needs to be a lot of care” that it doesn’t reinforce the Trump administration views that this interferes with due process.
Schroeder, of PAAR, said the Title IX offices and counseling services of universities need to be forthright about the changes these new regulations will create: “Transparency has a big place in that. … It’s important that we are very honest” with victims about any new limitations universities see when handling future sexual harassment or discrimination cases.
Marty Levine is a staff writer for the University Times. Reach him at firstname.lastname@example.org or 412-758-4859.
Have a story idea or news to share? Share it with the University Times.