The Department of Education (DOE) submitted a proposal to change policy under Title IX called “Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties.” This proposal is not yet law, and it is accepting questions and criticism until Jan. 30. If the proposal is passed as is, drastic changes will occur in the way universities across the nation handle sexual harassment cases.
While the current DOE-issued guidelines function as a model for schools as they make their own sexual harassment policies, this new proposal will be law. If schools do not follow the rules enlisted in Title IX, they are liable to lose their federal funding.
The proposal contains many new rules that the Seattle University community and general public find concerning, and it has the potential to dramatically affect the way sexual harassment cases are resolved at schools.
One significant change is the definition of sexual harassment. The definition may become less broad, meaning that fewer cases will fall under the umbrella term of sexual harassment.
Cross examinations and live hearings are the proposals stirring up the most concern. Seattle U Title IX Coordinator Andrea Katahira showed concern with this proposed change in an email statement.
“One concerning provision of the proposed rule is that it would require universities to resolve sexual misconduct complaints through ‘live hearings’ that, among other things, include direct cross-examination of each party by the other’s advisor,” Katahira said. “Among other concerning aspects of this provision, the prescribed process is very likely to have a chilling effect on students bringing forward complaints.”
Some new proposed rules that would affect the trials are a new standard for the quality of evidence, and the removal of the promptness requirement. Currently, evidence is required to be “more likely than not true.” With the new proposal, evidence is required to be “clear and convincing.”
During the discussion hosted by Student Government of Seattle University (SGSU), “Know Your Rights: Proposed Changes to Title IX,” Kate Hannick, SGSU’s Chair of Civic Engagement, mentioned that evidence for a sexual harassment case is hard to come by—it often comes in the form of screenshots, which may not fall under “clear and convincing” evidence. The promptness requirement encourages universities to investigate the case within 60 days, and states that the university will, “be held accountable for failing to take prompt, effective, and equitable action.”
Benjamin Carlson, a first-year pre-major who attended the discussion addressing the Title IX changes, had some critical thoughts about the removal of the 60-day investigation period.
“The removal of the 60-day investigation requirement can allow universities to be unconcerned with investigations because there will be no consequence for lack of investigation, potentially leading to justice never being served,” Carlson said.
The proposal also limits the university’s responsibility for cases that do not occur on campus. Andrea Katahira, Seattle University’s Title IX coordinator, also expressed concern for this proposed change.
“The proposed rule states that for sexual misconduct complaints regarding incidents that occurred outside of the university’s program or activity, the institution ‘must dismiss the formal complaint with regard to that conduct,’” Katahira said. “It’s possible the rule gives some leeway for universities to still address these types of cases.”
Nonetheless, Katahira found this concerning firstly because it does not require colleges to investigate off-campus incidents, and secondly because it complicates the investigation process for schools like Seattle U who will continue to investigate off-campus assault.
Though these proposals are not yet law, they very well could be in the future. These laws would drastically change how universities are legally allowed to handle sexual harassment. They could further affect the likeliness that cases are reported and the justness of the outcomes of the cases that are reported.
Although Seattle U may be required to change some of its policies surrounding sexual assault, Katahira said the school will always maintain its stated goal of thorough response to sexual misconduct.
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