The U.S. Department of Education released its final regulations controlling how schools handle campus sexual assault cases under Title IX, extending rights given to those accused of sexual misconduct.
Title IX, which went into effect in 1972, is a federal law that protects against sex discrimination in education. In November 2018, the Department of Education, headed by Secretary Betsy DeVos, released its initial proposal on “improving” schools’ responses to sexual harassment and assault. It received over 124,000 public comments, which were reviewed by the Office for Civil Rights, a sub-agency of the department.
The finalized regulations, released on Wednesday, give students accused of sexual harassment or assault the right to a live hearing and the ability for the student’s advisers to cross-examine accusers in order to “restore due process in campus proceedings.” However, opponents of the new rules say they may discourage survivors from coming forward. Some AU students think the University should take steps to make the process less traumatic for accusers.
“American, much like colleges and universities nationwide, believes it is imperative to carefully and thoroughly review the final regulations, the Department's aggregated response to the nearly 125,000 comments submitted, and the other data and information included by the Department,” AU spokesperson Stacie Burgess said in a statement to The Eagle.
The new Title IX rules also include dating violence as a type of sexual harassment and require schools to offer options such as dorm room reassignments or no-contact orders.
In 2017, AU removed the hearing process and switched to an investigative model, in which an investigator determines whether or not the respondent is responsible. Former Title IX Program Officer Regina Curran previously said that the University switched to the model due to the significant stress that the hearings were causing for students involved.
However, AU and other colleges and universities will have to comply with these regulations by Aug. 14, as they are enforceable by law, unlike the Obama-era guidelines issued in 2011 and 2014. If schools choose not to comply with these regulations, they could lose federal funding.
Rachel Abraham, a rising senior in the School of Public Affairs, went through the process of filing a complaint with AU’s Title IX office. She said it was one of the worst experiences in her college career, and she thinks giving the accused more rights, such as cross-examination, is dangerous and invalidating.
“This has given them an elevator, and you’re sort of stuck in this hole and you still don’t have a ladder or rope to get you out,” Abraham said.
Zachary Swanson, a rising sophomore in the School of Public Affairs, said he believes students are going to be less willing to report complaints with the Title IX office if the process retraumatizes students through a more criminal-like trial.
“There is already a notable and provable chilling effect in the criminal justice system regarding sexual assault because victims don’t want to have to go through a long, drawn-out legal process,” Swanson said.
Other regulations allow Title IX officials to decide whether to use preponderance of the evidence or a “clear and convincing standard,” suggest mediation as an alternative method of mediation, and do not enforce Title IX offices to investigate assault or harassment that occurs off campus in a non-sponsored setting like an apartment or, in AU’s case, a fraternity house.
Abraham said her friends who have gone through traumatic situations mostly experienced them in apartments or fraternity houses off campus. Abraham said that if the University is really trying to keep their students safe, they should consider that not everything, especially sexual assault, happens on campus or at school-sponsored events.
While these rules are enforceable by law, the University can choose not to opt in to some of the suggestions. Washington College of Law adjunct professorial lecturer Ian Harris said one way could be to utilize the lower evidentiary procedure as suggested in the Obama-era guidelines. He said as an attorney, he knows it can be difficult to prove sexual assault even with the lower standard of evidence, let alone a stricter standard.
“The preponderance of the evidence is used in most civil cases where judges are actually trained to adjudicate cases,” Harris said. “There is no reason that a more stringent standard should be utilized for cases at universities where many students and adjudicators lack evidentiary knowledge or tools to seek out evidence.”
The release of these changes initiated outcry on social media from students. Rising junior and former AU Democrats President Julia Larkin created a Change.org petition for AU to “uphold survivors’ rights and reject DeVos’s harmful Title IX policies.”
Without the ability to protest on campus, Larkin said her anger propelled her to create the petition, which received over 365 signatures as of Saturday.
“The University needs to come up with some sort of plan, some time very soon, as to how they are going to adapt to these rules and how they can adapt to it in a way that is still survivor-centric that is going to protect people who come forward,” Larkin said. “If no response from the University comes out within the next few days, the distrust and a wall is already built.”
Vice President of Campus Life and Inclusive Excellence Fanta Aw said the University will do everything they can do within the law for survivors to still feel safe and comfortable coming forward.
“We’ve made significant improvements within not only the process but continuing our commitment to education, like Empower AU. Those will not go away,” Aw said. “If anything we’ll continue to redouble our efforts around that.”
Larkin also helped new AU Democrats President Rhett Martino, a rising sophomore, plan a Day of Action on Friday. Martino said the petition Larkin created was a great first step, but they wanted to encourage more student activism to let the University know that students think these policies would be harmful.
“Step one is to sign the petition. Step two is to send an email to your representative in Congress and we really outline how to do that,” Martino said. “Step three is an email to American University, specifically to the Office of Campus Life, Dr. Fanta Aw and the Title IX office.”
Aw said she has received those emails and ensures students that the University is looking over every single line of the over 2,000 pages of regulations. Even though the timetable is “aggressive” and comes in the midst of the coronavirus pandemic, she said the University is assessing the full measure of implementation.
These regulations come at a time when AU has three open federal investigations into potential sexual violence violations of Title IX — the most in D.C. In addition, Curran recently left her position as Title IX program officer. Currently, there is an interim program officer and deputy Title IX officers.
“We will continue to do everything we can, around what we know to be good practices while understanding that this is indeed a federal law,” Aw said.
