On April 19, the US Department of Education released its final rule to fully effectuate Title IX’s promise that no person should experience sex discrimination in federally funded education, and these new regulations were implemented in August. Title IX first took effect in 1972 prohibiting sex-based discrimination in all K-12 school, college, university or educational program that receives funding from the federal government.
Over the past fifteen years, Title IX regulations have experienced a myriad of modifications closely tied to changes in presidential administration. The current Title IX regulations were created by the Biden-Harris administration in response to high rates of sexual assault and harassment on college campuses, and discrimination based on LGBTQ+ identity or pregnancy.
The changes to Title IX policy allow for a broader definition of what incidents fall under the purview of Title IX regulations and lower the evidentiary standard for such incidents. Kat Matic, Title IX Coordinator, said, “We went from, [2020 regulations with a] narrow scope in terms of definitions focused on sexual assault to a much broader definition, thankfully, in my humble opinion, to all forms of sexual and gender based definitions.”
The final regulations define incidents that fall under the purview of Title IX as “unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.”
The previous 2020 regulations covered only sexual assault and other incidents “severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” While this wording is similar, the simple change of conjunction from ‘and’ to ‘or’ creates a wider definition of sexual assault and harassment that will allow more incidents to be considered by the Title IX office.
In addition, the evidentiary standard is now “preponderance of the evidence,” opposed to the higher standard of “clear and convincing,” unless “clear and convincing” is used in all comparable hearings associated with discrimination. Prior to these regulations, institutions were permitted to set a higher burden of proof for Title IX cases than other discrimination cases on campus.
While this is not new for Dickinson, as our evidentiary standard has always been “preponderance of evidence,” this change signals the federal move to provide an easier path for complainants through Title IX proceedings. These two major changes are representative of the larger policy shift to allow more points of entry and more forgiving procedures that will hopefully result in justice for victims of sex-discrimination.
Investigation standards have also experienced an overhaul, now focused on prioritizing trauma informed practice and the experience of complainants and respondents in the proceedings. The most prominent change is that institutions must conduct a reliable and impartial investigation of all sex discrimination complaints. In previous regulations, a response from a Title IX coordinator was only required if “actual knowledge” of allegations of “sexual harassment” was available.
This move will ensure more incidents are investigated in a timely manner. In addition, the 60-day time limit for Title IX investigations has been eliminated to prevent investigations being drawn out to the 60-day limit without necessary cause. The policy now states that institutions must respond “promptly and effectively” to all information and complaints. Live hearings are no longer a requirement for Title IX hearings because of the potentially retraumatizing impact of facing a respondent.
If live hearings do still occur, it must be offered via an online platform (i.e. Zoom) to minimize contact between complainant and respondent. Kat Matic shared that live hearings, via Zoom, will still be instituted by Dickinson when the desired outcome is separation or termination of the respondents enrollment at Dickinson College, all other formal processes will no longer use a live hearing. Matic identified the severity of such an outcome as what made it necessary to ensure that both respondents and complainants are allowed to share their full story with the entire hearing panel before a decision is made.
One of the major changes for Dickinson is that the College is requiring all employees to be mandated reporters, including students. Matic shared that this would be the most significant change for her office. Trainings for employees have just been finalized by a third party risk management organization, United Education, and are now under review by Dickinson Title IX Office. Matic plans to also create Dickinson specific training to supplement this nationally available program to ensure issues and resources specific to Dickinson are included in the training.
Due to this change requiring all employees to be mandated reporters, the Director of LGBTQ+ Services and the Director of Women, Gender and Sexuality Services, currently Thomas “Tommy” Lee and Katie Schweighofter respectively, are considered confidential employees. Confidential employees are people who are not required to make Title IX reports and often will not share confidential information with the Title IX office. In addition, the new Title IX regulations now explicitly state protection for LGBTQ+ and pregnant students. Matic stated “I love [the change] because what that means to me is it’s on us as a campus community to do our best to educate and prevent incidents.”
As the federal Title IX regulations changed on August 1, Dickinson College’s own Title IX policy was republished to reflect these regulations and included changes unique to Dickinson policy. The most salient of these changes are those to the informal process. The informal resolution process is described as “a voluntary process to which both the Complainant and Respondent agree and is approved as appropriate by the Title IX Coordinator or designee” and is one of the most common results of a complaint lodged with the Title IX office. In Dickinson’s prior Title IX policy, the informal process was described in a number of paragraphs and included a list of potential outcomes including no communication/no contact agreements and agreements to adjust work schedule and housing assignment.
The new regulations simplify this information into four categories: supportive resolution, education conversation, accepted responsibility and alternative resolution. The option for an education conversation or accepted responsibility are new to the policy and provide for further action through informal process. An education conversation occurs between the Title IX coordinator and the respondent to ensure the respondent understands what has occurred and institutional expectations.
Accepted responsibility is a process where the respondent acknowledges the violation of policy that has occurred and accepts responsibility, therefore allowing sanctions to be placed against them. These two forms of informal process are a response to student desires for more consequences to occur but a lack of student desire for a formal process.
When asked what inspired these changes, Matic responded, “Survivors. What survivors have shared as their desired outcome from a process.” Matic shared that having a conversation or offering a respondent the ability to accept responsibility allows the office to be “able to engage in restorative justice, most survivors want the other person to acknowledge what they have done … it can be empowering for survivors, especially if they do not want to pursue punitive measurers.”
Matic shared with The Dickinsonian that in the first three weeks of classes, there has been an above average rate of reporting. While it is not clear if this is due to students’ awareness of the new regulations or improved training in the weeks leading up to classes, Matic is pleased to see this.
Although an increase in reported incidents may be concerning for students, the CDC has estimated that one in four students on a college campus either experience, or have heard of a peer experiencing, sexual harassment. These incidents are occurring whether they are reported or not and when incidents are reported the Title IX Office is able to identify key issues or respondents on campus. Matic said, “I cannot stress the importance of reporting because the more information about misconduct the more I have to work with.”
