NYT: Title IX Changes Could Limit Misconduct Cases

Emory is not taking action in wake of The New York Times report that the U.S. Department of Education is reportedly preparing to revise Title IX guidelines regarding how sexual misconduct cases are handled on college campuses, according to Emory’s Title IX Coordinator Supria Kuppuswamy.

The proposed revisions, which have not yet become official, will increase protection for those accused of sexual misconduct, narrow the definition of sexual harassment and reduce liability for institutions, according to guidelines obtained by the Times. The rules would also decrease the number of sexual misconduct cases handled by educational institutions, according to an analysis by the Department of Education.

Kuppuswamy said Emory is waiting until the rules go into effect to determine next steps.

“We have no indication that the information in the story is accurate, and even if it was, we’ve only been provided with selected portions of the alleged proposed rules,” Kuppuswamy wrote in a Sept. 10 email to the Wheel. “Once all proposed rules are officially published in the Federal Register, we would be in a position to make a comment.”

The last major revision to these guidelines occurred in 2011 under President Barack Obama. In 2017, the Department of Education announced the guidelines would be changed and issued interim guidelines for colleges, allowing them to use either the Obama-era or interim guidelines. When the new guidelines are released, all institutions will likely be required to adhere to them.

The proposed changes would change the definition of sexual harassment to “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity,” the Times reported. The previous definition was “unwelcome conduct of a sexual nature” including “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”

The proposed guidelines would only require colleges to investigate cases reported to an official who has the authority to institute corrective measures, according to the Times. Since 2001, schools have been required to conduct an investigation whenever a student complains to any employee.

The new regulations would also allow parties to engage in informal mediation to resolve disputes. Under the previous guidelines, mediation was not allowed because the Obama administration thought it could lead to a woman to feel pressured to participate in mediation.

Emory’s Title IX Coordinator Supria Kuppuswamy told the Wheel in November 2017 that she thought mediation is an acceptable method to resolve sexual assault cases.

Also included in the leaked guidelines is that parties involved in a Title IX dispute would be permitted to a discovery process and to cross-examine the other party in a formal hearing.

Gerald Weber, an adjunct professor at Emory’s School of Law and a constitutional lawyer who has represented clients in Title IX cases, said he thought allowing cross-examination in Title IX hearings would be beneficial. Weber spoke to the Wheel to provide legal context, not as a representative of the University.

“Under the current system at most schools, the victim’s attorney cannot ask a single question,” Weber told the Wheel. “Both attorneys should be able to cross-examine witnesses, and they should have access to all the evidence.”

The new proposal would increase the standard of evidence required to find a party responsible. Under the Obama-era guidelines, universities are required to use the “preponderance of evidence” standard, meaning a violation more likely than not occurred. The new guidelines would make it harder to convict someone because they require “clear and convincing evidence,” meaning it is substantially more likely than not that a violation occurred.

Under the proposed guidelines, institutions may only conduct Title IX investigations for cases that allegedly occurred on the college’s campus. Investigations for off-campus cases would be handled criminally.

Weber said limiting the obligations of institutions solely to their own campuses was “counterproductive.”

“[An] area that is of concern to me is the definition of harassment,” Weber said. “Sometimes persons who are victims are afraid and reluctant to complain through formal channels.”

Weber said he thought the Department of Education is rushing to adopt new rules without properly consulting stakeholders, like universities and rights groups.

“This is a tremendously consequential change that is being proposed in the absence of actual facts,” Weber said.

Department of Education Press Secretary Liz Hill told the Times that the “department is in the midst of a deliberative process,” adding that the information reported in the Times is “premature and speculative.”

The revised guidelines can be enforced without congressional approval, but to be approved, the guidelines must undergo a public comment period.