CW: Extensive discussion of rape/sexual assault law, short discussion of transphobia.
Title IX, a code on preventing many forms of “sex-based discrimination” in educational environment, has recently been a point of political turmoil. On June 23nd, 2022, the United States Department of Education released an extensive new proposed set of standards for Title IX policies, which recently received countless public comments. This proposal is only two years after an even larger overhaul of Title IX policy. These rapid changes have brought confusion and frustration surrounding the changing laws.
The 2019-2020 New Standards
Effective August 1st, 2020, the current standards under Secretary of Education Betsy DeVos focus largely on codifying policies surrounding sexual assault and harrasment. Further in the past, Title IX implicitly called sexual harrasment actionable if it was “severe, persistent, or pervasive”. These new standards instead codified the much narrower “severe, pervasive and objectively offensive”. “Objectively offensive” is defined as objectionable to a “reasonable person”, which is still very vague. In effect, these harsher requirements of sexual harrasment gave schools more leeway to not respond to complaints.
Additionally, attempts to create a “more objective”, “equitable” case scenario has brought an overall more difficult, uncomfortable system. Complaint processes are more intensive with a required “live hearing” process alongside cross-examination, complex legal codes, and mandatory multi-person investigations. requirements also do not “restrict the parties from discussing the allegations”, which makes it difficult to enforce privacy, despite the sensitive subject and fears of retaliation.
These new rules were shaped by modern discourses around sexual assault that drastically overrepresent the number of false accusations. The entire document seems to frequently “both sides” the complainant and respondent, and is reluctant to enforce any serious discipline for Title IX violations. Despite the law purportedly wanting to protect survivors dealing with rape, sexual assault, and sexual harrasment, the changes do more to protect the people that hurt them. More bizarrely, there are frequent appeals to the First Amendment, as if the rules implicitly view sexual harrasment as a vital part of free speech.
The 2020 Title IX changes were, frequently panned. The American Council of Education criticized the release of a massively complex framework while colleges were focused on the pandemic. In a report on issues with Title IX, an editor from The Chronicle of Higher Education stated that the hyper-legalistic process “is not conducive for properly handling sexual assault cases and for supporting students.” The comment period included many criticizing how the 2020 changes could retraumatize people, how it used unprofessional sources, and how it could discourage reporting in an already fraught system.
One particularly controversial section, often called the “suppression provision”, forbade the investigative use of any statements outside of cross-examinations. Due to this restriction, it was much harder to get evidence and easier for defendants to manipulate cases. This provision was struck down in court in mid-2021, the plaintiffs including a series of students harmed by Title IX guidelines.
Proponents of these regulations included groups like the Foundation for Individual Rights and Expression (FIRE), which celebrates the changes under their universal goals for spreading free speech. Many in favor of the ruling have similar arguments, believing they bring a greater sense of fair law and due process.
The 2022 Proposals
The rollout of the 2020 changes was messy, disorganized, and harmful. Prescriptive rules often conflicted with outside laws, and were difficult to quickly and effectively implement. The complex legalistic process, alongside a narrower definition of sexual assault, has made students less likely to report assault and struggle even more in the formal Title IX process. Many activists and politicians made clear the need for change, to protect against discrimination rather than protect from being accused of it.
The new proposal, under Secretary of Education Miguel Cardona, largely responds to complaints around these 2020 changes. It generally responded to two concerns: “a need for greater clarity” surrounding the sexual assault process; and how past iterations do not “specify the scope of sex discrimination prohibited by Title IX” (pg 12).
The amendments spend much of their time clarifying definitions and processes. One of the larger changes was the addition of “sex-based harassment” as a term, which “would cover unwelcome sex-based conduct that is sufficiently severe or pervasive” (pg 89). This indirectly counters the highly specific definition of sexual harrasment from the 2020 amendments. Regulations for investigations are also less strict, with live hearings being optional and a new option for an informal resolution system. Alongside a more streamlined, flexible system, colleges are given more responsibility: both with responding to off-campus incidents as well as making all non-confidential employees mandatory reporters.
Said proposals also expand the set of specifically codified protections via Title IX. It specified that discrimination for “pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom, as well as… parental, family, or marital status” were covered under sex-based discrimination, providing a new specific set of rights (pg 452). Additionally, sexual orientation and gender identity were also added as protected categories, as consistent with the Bostock vs. Clayton County rulings. However, this section is relatively vague on protections for queer and transgender students actually entail, stating anything that is more than “de minimis harm, unless otherwise permitted by Title IX or the regulations” (pg 529).
While the official comment period has recently ended, these proposals have also had lots of outside attention, with countless comments even from groups unrelated to education. Supporters, including the majority of previously mentioned institutions, often view the 2022 proposals as a much needed step forward after the 2020 changes. Some critics worry parts are still unclear or that expanding mandatory reporting may cause further issues for survivors. Groups like FIRE state that it is a step back on due process and free speech.
Conservatives have largely approached the 2022 proposal not with free speech absolutism, but instead with virulent transphobia. Arguments include reusing the “parents rights” dogwhistle and fearmongering about women’s sports. The proposal specifically does not include guidance on sports. These arguments are not specific to Title IX, but one of many moral panics in public education (Others include COVID-19 denial and the redefinition of “critical race theory” to challenge honest depictions of race). Regardless, transgender rights are a new centerpiece of the Title IX debate, and it’s unclear whether this reframing will support or hinder sexual assault reform.
On Hamilton’s Response
On January 30th 2019, President David Wippman sent an official letter to the Department of Education, which includes many of the criticisms on the Title IX changes mentioned earlier. On May 7th 2020, one day after the new regulations were codified, Wippman sent an all campus email. On June 15th 2020, the college held a Title IX question & answer session. Catherine Berryman also sent another email once the policy revision was finished on August 13 2020. While the transparency is appreciated, it is difficult to find out what exactly changed in the new regulations at present.
After the release of the 2022 proposal, Hamilton has yet to comment as an individual institution. The only official release was where Hamilton has joined in with a few other New York colleges in a statement that poses general support but also has many requests for looser guidelines.
On July 7th, 2020, Wippman also coauthored an editorial in the Hill titled “Getting off the Title IX roller coaster” with co-author, Glen C. Altschuler of Cornell University. It responds to frustration at the complex changing legal framework and predicts more sweeping changes will be proposed soon. The writers, propose “a bi-partisan commission that will design a fair, stable, and manageable process.” Said commission is meant to “foster greater accountability for campus sexual misconduct while still providing a fair process for the accused.”
Ultimately, these proposals are still vague in how exactly a commision would carry out any of these goals. Appeals to “bipartisanship” have been largely fraught in enforcing effective civil rights law, and have served more as a rhetorical device than anything actionable. It wavers on both “greater accountability” and a “fair process for” borrowing from both rhetorical sides without stating what the real problem with Title IX law is. They later describe accounting for “limitations of higher education… inability of colleges…the need for streamlined procedures”, which are uncontroversial ways to express that college administrations are frustrated with what students expect of them.
An interview with Catherine Berryman provided a more concrete idea. She didn’t have a conclusion on the 2020 regulations’ effect on Hamilton College due to the short period of implementation and simultaneous pandemic. She did mention Hamilton resisting the new very narrow definition of sexual assault, as with years before. Hamilton is currently waiting on the 2022 proposed regulations being passed by the Department of Education before making further comments, and plans to do a process involving community input similar to the 2020 changes. Berryman is also predicting a series of future frequent Title IX changes, due to the political turmoil surrounding said rulings. She mentioned that Hamilton will likely continue to utilize any flexibility afforded in Title IX regulations to stay compliant without needing a massive overhaul.
While Berryman emphasized how the Title IX office works with students, Katherine Barnes ‘20, alumnae and former SMART (Survivors Making Activism and Radical Transformation) e-board member, stated this process was far from equitable. She posed the issue as a conflict because “SMART and the [Community standards] office were constantly at odds in our goals: the well-being of survivors versus the well-being of Hamilton's reputation.” Working with administration was ultimately difficult and frustrating, in part due to how much of campus “actively denied and avoided” discussions surrounding sexual assault.
Barnes also connects these issues with how the Hamilton administration “often takes weak or nonexistent stances on racism, homophobia, sexism, etc on campus.” She argues that this messaging makes discriminatory actions acceptable and marginalized students uncomfortable, leading to distrust of formal college processes. Barnes notes that “so many people [she] knew felt uncomfortable reporting due to their race, gender, sexuality or ability”, demonstrating the ill effect of Hamilton’s systems on providing a safe environment for survivors.
In this confusion surrounding which versions of Title IX to follow, it’s important to note that Hamilton College’s has had had issues surrounding sexual assault. For instance, Sally Bourdon ‘15 remarks in a Chronicle of Higher Education article about her Title IX complaint,which included being sexually assaulted, having the assailant’s fraternity retaliate against her and the college failing to do anything to protect her. The article was released seven years after this appeal, in which her case still was not resolved. Bordon’s lengthy complaint process demonstrates that Hamilton is one of many schools struggling to finish cases quickly, weakening the effectiveness of the formal Title IX investigation system.
Duncan Freeman ‘22, of the Spectator’s Long-form Investigative Reporting team, compiled one of the few modern pieces on sexual assault at Hamilton, released April 7th 2021. He noted that in both private greek life societies and public campus organizations, people often used “extrajudicial, club-specific processes in lieu of going through the Office of Community Standards or Hamilton’s Title IX process.” Nikki Eisenberg ‘21 of SMART argued this was because official policies could be “retraumatizing,” “tiresome and difficult,” and often “favor the accused.” SMART often ended up as an unofficial support and educational system, as they seemed safer and worked quicker.
Noelle Juliano (formerly Niznik), former Student Activities director, noted that “since administrators are ‘responsible for all of our students,’… students cannot officially be removed from student organizations… unless they have participated in a full Title IX investigation.” While the formal Title IX process may be lengthy and potentially painful, it is the only way to officially remove members from organizations. Thus, unofficial student-run accountability processes are much more appealing and effective in the short term.
Furthermore, when Hamilton officially gets things done with Title IX, it has put itself at legal risk. Freeman’s article mentions two settled cases where the accused were expelled from campus. In the first, the accused argued “he had been discriminated against because of his gender” and ultimately received a “large, undisclosed settlement.” The second case involved the accused arguing “Hamilton had violated state law, the school’s own misconduct policies, and [the defendant’s] due process rights”, which in an overturning of prior court statements, decided that Hamilton should reverse their decision on said student. Overall, these demonstrate that even when an investigation is concluded, it can lead to problems down the line.
As Hamilton deals with both a complex and shifting Title IX process alongside unofficial methods of protecting survivors, it is unclear how exactly a new set of regulations will change lived experiences. With SMART’s return to campus amidst a growing lack of faith in Title IX lawmakers, the campus will have to be proactive to combat the dangerous culture of sexual assault.
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