After the U.S. Department of Education announced revised campus sexual assault guidelines on Nov. 16, top Emory administrative offices are trying to assess the impact and the University Senate hopes to gather feedback from community members.
The revised guidelines allow for cross-examination during hearings, narrow the definition of sexual harassment and limit the circumstances under which a school is required to investigate instances of sexual harassment.
Associate Vice President of University Communications Nancy Seideman wrote in a Nov. 30 University statement that Emory is reviewing the proposed guidelines. Emory University Title IX Coordinator Supria Kuppuswamy declined an interview to discuss the changes.
“Emory University is closely evaluating proposed regulatory changes to the federal Title IX program, and remains committed to fostering a safe learning and working environment that supports the academic and professional growth of students, staff, and faculty,” Seideman wrote in a Nov. 30 email to the Wheel. “Emory will not tolerate sexual harassment or violence in our community and will continue to work to increase awareness of the issue, prevent its occurrence, and diligently investigate reports of misconduct.”
Vice Provost for Equity and Inclusion Lynell Cadray said at the Nov. 27 University Senate meeting that the Offices of the President, Provost and General Counsel are planning on holding listening sessions in Spring 2019 to understand how the new regulations will impact the community.
The University Senate also plans to convene students and faculty to prepare a comment to submit during the Education Department’s notice and comment period, University Senate President Jason Schneider said at the meeting.
The new guidelines narrowed the definition of sexual harassment to “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal action to the recipient’s education program or activity.” The previous definition included any “unwelcome conduct of a sexual nature.”
Sexual Assault Peer Advocates (SAPA) Membership Chair Andy Paul (18Ox, 20C) said he opposes the new definition.
“Less people would be able to seek justice against people who are perpetrating sexual harassment,” Paul said.
Under the new guidelines, universities would only be responsible for investigating allegations of sexual misconduct if a university official with the authority to “institute corrective measures” has “actual knowledge” of the possible misconduct and if it allegedly occurred on university property. Former President Barack Obama-era guidelines stated that a university would be responsible if it “reasonably should have known” about any possible incident of assault.
A university would be in violation of Title IX if it showed “deliberate indifference” in investigating a complaint.
The revised guidelines allow schools to choose between a preponderance of evidence burden of proof standard or a higher standard of clear and convincing; however, the preponderance of evidence standard can only be applied if the university uses that standard for non-sexual conduct offenses that carry the same maximum penalty. Emory currently uses the preponderance of evidence standard in the Office of Student Conduct, according to Director of Student Conduct Julia Thompson.
The proposed changes provide an opportunity for advisers of the involved parties to cross-examine the other party during hearings, but cross-examination between the involved individuals themselves will not be permitted, keeping in line with the Obama-era guidelines discouraging direct cross-examination between the complainant and respondent. The cross-examination would include a “rape shield” protection, which would prevent the complainant from “being exposed at trial to harassing or irrelevant questions concerning their past sexual behavior.”
Paul said potential cross-examination could discourage victims of sexual assault to file complaints, adding that allowing cross-examinations would cause proceedings to go against the “kind of decorum Title IX cases take,” and that it could make it “a much scarier process than it needs to be.”
The new regulations also require that the Title IX coordinator and case investigator do not decide the result of cases, but rather a decision-maker or group of decision makers.
The proposed changes will be open for public comment for 60 days after they’re published in the Federal Register, during which individuals and institutions can provide feedback on the regulations.
Paul encouraged students to participate in the feedback process.
“We definitely want to talk to community partners and be very deliberate in how we address the comment period,” Paul said.
Correction (12/8/18 at 2:25 p.m.): A previous version of this article stated that preponderance of evidence is a higher standard than clear and convincing. In fact, clear and convincing is higher than a preponderance of evidence.