Institution critiques Title IX

In late December, Education Secretary Betsy DeVos sent a 161-page document to every college and university that receives federal funding. The document contains the Department of Education’s proposed changes to Title IX, a law that forbids discrimination on the basis of sex. Each institute of higher learning—whether a public school funded by the government or a private school that receives Pell and professorial grants—must send back its opinion on the proposed changes by Jan. 30. The Department of Education will review these suggestions before putting the revised law into effect.

Upon learning of the deadline, members of the Student Title IX Advisory committee began taking action as early as Jan. 2. Under the guidance of Director of Equal Opportunity & Affirmative Action and Title IX Officer Dr. Rachel Pereira, committee members spent their winter break condensing the 161-page document into a 12-question survey to inform Vassar students of the changes and learn their thoughts on the matter. To expand upon these questions and allow students to expand upon their answers, the committee hosted a 90-minute panel on Wednesday, Jan. 23.

Pereira and Gabrielle Costner ’21 served as the panel’s principal speakers. They began with a brief history of Title IX. Congress introduced the law as part of the Education Amendments Act of 1972, and it dealt primarily with providing equal athletic opportunities for male and female students. Since then, Congress has continued to renew the law, and in 1991, Title IX was altered to require institutions to address sexual misconduct on their campuses. The level of responsibility that Title IX assigned to schools changed from administration to administration. The Obama administration delivered sweeping changes of its own, most of which increased schools’ amount of responsibility for sexual misconduct cases. Most of Devos’ changes repeal these efforts.

Although the panel intended to address all 12 questions of the survey and have multiple committee members speak, frequent audience participation and in-depth discussion resulted in them addressing only the first three. Early on, Pereira established that Vassar’s response would confront all changes, even those that would not affect Vassar itself. Therefore, the panel considered modifications that could hinder students’ safety at other schools, regardless of impact on Vassar students. “Everybody should have equal opportunity to access education, and feeling safe is incredibly important,” said Costner.

The majority of Devos’ changes make the bare minimum of investigation an option for schools. Since schools have the choice to set higher standards for themselves, not every school will be directly affected. “The changes that don’t affect Vassar involve lowering the floor, as opposed to raising the ceiling,” stated SAVP Director and SART Advocate Nicole Wong. Question 1 discussed the change from a 60-day deadline to wrap up a sexual assault investigation to a “reasonably prompt” deadline. Although Vassar has no plans to change its 60-day deadline, panelists and attendees expressed concerns about colleges that would take advantage of this ambiguous language. Pereira cited the charges against Michigan State physician Larry Nassar as an example, as Michigan State received complaints for years but completed the investigation far from promptly.

Question 3 also did not apply directly to Vassar, concerning the new minimum number of years that a school must maintain investigation records—three. Vassar does not plan to change its policy of keeping records indefinitely, but the panelists found this minimum to be short, as a first- or second-year assault victim could not access the records should they decide to prosecute upon graduation. Additionally, under the Obama administration, Title IX cases had to charge students as guilty if there was a “preponderance of evidence,” meaning there was at least a 51 percent certainty of guilt. Now, schools may choose to use “preponderance of evidence” or “clear and convincing evidence,” a higher standard recognized in courts of law. Vassar made the federally mandated switch from “clear and convincing” to “preponderance of evidence” in 2011, a change over which the government sued Princeton University for failing to comply. Vassar does not plan to switch back, although an audience member at the panel noted that faculty cases at Vassar use the clear and convincing standard. Many of Vassar’s “higher ceiling” practices come from New York State Law 129-B, known as “Enough is Enough.” 129-B mirrors many of the Obama administration’s policies, and even though Devos’ changes offer more options to schools, Vassar will not be able to adopt some of these options under New York state law.

However, Question 2 covered several required changes for Vassar. Right now, the complainant and the respondent can cross-examine each other at Vassar, but questions and answers are written down and checked for relevance in advance of the hearing. Devos’ reforms call for a live hearing, in which the complainant and the respondent may have to cross-examine each other in person through an adjudicator who does not have to filter irrelevant questions. Pereira gave examples of such questions, like “Isn’t it true that everyone knows you’re a rapist?” or “You’re only accusing me because I had sex with your friend, right?”

“Having it done verbally is really scary,” reflected Costner, “and if there are verbal hearings, people are going to be less likely to go forward.” Additionally, the change to a live hearing does not take privately-disclosed evidence into account. Under current policy, if a student privately told a Title IX officer that they were using drugs the night they were assaulted, that student would not have to repeat that information at the hearing for it to still be considered. Under the proposed changes, Title IX officers will not be considering information not given at the live hearing when rendering a verdict.

The panel concluded after allowing attendees to ask any remaining questions. Fourteen people, students and faculty alike, attended the panel, along with seven members of the Student Title IX Advisory committee. “I came after seeing emails and Facebook posts from other students. I didn’t know about these issues before seeing them,” said attendee David Sparks ’19. Attendee Lucy Rosenthal ’19 came pursuing a further understanding of the legal technicalities. “It’s important to hear informed people explain administrative jargon in a way I can understand,” she explained.

The panel did not have time to cover one of the most controversial changes: if the law went into effect, schools would only have responsibility for sexual assaults that happen either on-campus or during a school-sponsored activity. More than 75 percent of American college students live off-campus. “The change is definitely a concern,” Wong admitted. She stressed how the lack of off-campus responsibility may limit Title IX’s ability to issue formal charges in these cases. Still, Wong concluded, “Title IX has made a commitment to make sure all of our students are still protected.”

DeVos’ changes embrace a common theme: making college Title IX cases more similar to courts of law. Unspecified deadlines, higher standards of evidence and traditional cross-examination laws are all used in the American judicial system. “The guidelines may be adopting some of the elements from the court system into the college process, without recognizing the value of why those two processes are different,” said Wong. “A system that exists out of society can be better for a lot of students.” A criminal investigation could take years, while a Title IX case can reprimand an assailant within a matter of months.

Panelists and audiences alike remarked on the importance of confronting these matters in the era of #MeToo. Victims of sexual assault are more comfortable speaking out than ever before, and a legal change regarding assault reporting on campuses has the potential to curtail this shift. In recent years, the Vassar-based magazine “Boilerplate” published three anonymous accounts of sexual assault that never reached the Title IX office. When the #MeToo movement took off in 2017, Pereira received a report from an alumnus detailing an incident that happened in 1970 .

Although the deadline for college responses has passed, the Department of Education’s changes are not yet definitive, as the department has said it will review the suggestions of schools around the nation before taking the law to President Trump. Pereira and the Student Title IX advisory committee will spend the next few days drafting Vassar’s final response. “I’m anticipating a few all-nighters ahead,” Pereira noted. Audience member and intern Sara Ehnstrom ’22 spoke on her support for the committee, explaining, “I really believe in both helping people and making sure I help people the correct way, and this is an org that seems to do that.” The Student Title IX Advisory committee, through facilitating campus-wide involvement in drafting Vassar’s response, has advocated for rights of college students at the federal level.

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