As previously shared with the Ithaca College community, last November the U.S. Department of Education published a notice of proposed rulemaking that would change how colleges and universities handle allegations of sexual misconduct on their campuses under Title IX. This publication began a public comment period, which concluded on January 30, 2019. The review of these comments by the Department of Education will likely be a lengthy process, as more than 100,000 were submitted by the deadline. You can read all of the submitted comments that have been posted to date by going to the department’s website.
Ithaca College’s senior leadership team thoroughly reviewed the proposed changes with the Title IX office, and Vice President and General Counsel Guilherme Costa submitted comments to the Department of Education on behalf of the college. While acknowledging the importance of providing some clarity regarding the regulatory expectations and enforcement of Title IX by the department, Vice President Costa noted that some of the proposed language would create significant challenges for higher education institutions.
Among the issues pointed out in the college’s comments:
- Under the proposed regulations, sexual harassment is defined as conduct “so severe, pervasive, and objectively offensive that it effectively denies a person equal access.” Further, the proposed definition contains a reference limiting higher education’s response to sexual harassment occurring in an education program or activity. This would be significantly narrower than the working definition that higher education has used at least since 2011. Most colleges will continue to expect more from their students and employees and will address behavior that will no longer be captured under this proposed definition through other expectations for conduct.
- The reference to “supportive measures” states that, “such measures are designed to restore or preserve access to the recipient’s education program or activity, without unreasonably burdening the other party…” Whether a measure unreasonably burdens the other party will be fact-specific to an allegation, and ambiguity in this language warrants further clarity.
- The Department of Education is proposing a new requirement that college disciplinary proceedings include a live hearing and cross-examination by a party’s advisor of choice—which is likely to be an attorney—and that any statement made by a party or witness who refuses to submit to cross-examination be disregarded. The college points out that many survivors of sexual assault will be re-victimized by participating in a process that includes a live hearing and cross-examination by an attorney, which will lead many to choose to not bring complaints forward. It calls this a huge step in the wrong direction, and strongly urges the department to instead continue to provide higher education institutions with the flexibility to determine for themselves the best way to ensure that they have a prompt and equitable process that ensures due process for all.
A copy of the complete submission has been posted on the college’s Sexual Harassment and Assault Response & Education (SHARE) website, where you can also find more information on Title IX resources and reporting processes at Ithaca College.
Linda Koenig
Title IX Coordinator