New Title IX guidelines narrow sexual harassment definition, reframe investigative process

by Lauren Adler | 5/14/20 2:15am

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by Adrian Russian / The Dartmouth Staff

The United States Department of Education released new Title IX guidelines last week that Dartmouth’s Title IX office said “significantly changes the definition and scope of prohibited conduct” and the adjudication process for sexual harassment claims.

The new regulations narrow the definition of sexual harassment, require that colleges allow direct cross examination at Title IX hearings and specify that college Title IX offices can only address complaints that occur on college property or at college-sponsored events, leaving incidents in off-campus houses or on off-campus programs outside the U.S. beyond college jurisdiction.

A preliminary version of the new guidelines was released in November 2018, and the final document was released on May 6. Colleges will have until August 14 to comply with new Title IX policies.

One of the most significant changes from the current Title IX guidelines is the new, narrower definition of sexual harassment, now defined as “unwelcome conduct” determined to be “severe, pervasive and objectively offensive.” Dartmouth’s Title IX office will be unable to act on any sexual harassment claim that does not meet the new standards.

“It’s a really high bar,” said Kristi Clemens, Dartmouth’s Title IX coordinator. “We need to [decide] how we’re going to continue to deal with that conduct that doesn’t quite rise to the high ‘severe, pervasive and objectively offensive’ bar, because we still have an obligation to our community.”

Clemens explained that there is no current legal national definition of sexual assault, and colleges have codified their own definitions instead. Dartmouth currently defines sexual harassment as “any unwelcome sexual advance, request for sexual favors or other unwanted conduct of sexual nature, whether verbal, non-verbal, graphic, physical, electronic or otherwise,” so long as one of two conditions are present: either the advance is used as a basis for affecting decisions on employment or the evaluation of academic work, or that the conduct is “sufficiently severe, pervasive or persistent” so that the victim is unable to fully benefit from Dartmouth. These definitions will need to change to reflect the most recent changes in Title IX law.

Clemens explained that under Dartmouth’s current rules, if “somebody grabs your butt once,” the incident could be considered a violation of Title IX policy and considered assault by the College. Now, Clemens said that this action might not meet the standards of being “severe” and “pervasive,” so her office may not be able to investigate the incident. 

Another notable feature of the new guidelines is that the College will have to allow for a live cross examination as part of the investigation process into any Title IX claim. The cross examination would be attended by both the respondent and the complainant, and each party will have the opportunity to question the other. While either party may request to attend the hearing remotely by video calling from a separate location, many have criticized this measure for potentially retraumatizing survivors of sexual assault.

“Survivors could be questioned by their rapist’s family member or friends or fraternity brother in a live hearing,” said Diana Whitney ’95, a founding member of the organization Dartmouth Community against Gender Harassment and Sexual Violence. “[The guidelines show] no understanding of the process of trauma. And it seems like it’s setting it up to retraumatize student victims and protect their perpetrators.”

Many critics of the new guidelines, including Whitney, are concerned that the potential for a live hearing will prevent victims from coming forward. Clemens agreed that the live cross examination “[may] scare a lot of people.” She added that there tends to be a decrease in reporting after most changes in policy, due to a fear that the new regulations must be worse for victims.

The guidelines also limit who is designated as a mandated reporter — individuals who are required to report an assault should they learn about one. While coaches used to be mandated reporters, for example, they no longer are under the new rules. The Title IX office is looking into whether undergraduate advisors and trip leaders are still designated as mandated reporters.

Additionally, the new language specifies that the Title IX office can only investigate allegations of violations that occur in a location owned or controlled by the College. They also eliminate Title IX protections for students on study abroad programs, in which roughly half of all Dartmouth students participate.

Clemens said that while her office will no longer be able to investigate these allegations, she added that Dartmouth “[has] to find a way to address that behavior,” even if it will not be investigated by her office.

Clemens said that Dartmouth has several options for how to address incidents of sexual misconduct that can no longer be investigated by her office, like adding provisions to the College’s standards of conduct that would be adjudicated by the office of community standards and accountability or creating a set of sexual misconduct policies overseen by the Title IX office that “doesn’t quite reach that bar” for an official Title IX investigation. 

“I do think we have a responsibility to address that kind of behavior,” she said. “We just need to figure out the way that makes sense for our community.”

Maggie Flaherty ’21, executive chair of the Student and Presidential Committee on Sexual Assault, said that she hopes that the College will protect students as much as it can by interpreting the guidelines as broadly as possible. For example, the guidelines give institutions the option to use the “preponderance of evidence” standard for burden of proof, rather than the more stringent “clear and convincing” standard when investigating allegations. She said she hopes that the College will be able to interpret the guidelines in such a way that it “can choose to protect survivors as much as possible within the framework of those guidelines.”

Whitney also pointed out that while the new guidelines would no longer require Dartmouth to conclude Title IX investigations within 60 days of the last grievance, the College could still “strive to have as fast and efficient an investigation as possible” to avoid traumatizing student victims who are still trying to complete their academic work.

According to Clemens, Dartmouth would normally have six to eight months to determine how to interpret and implement new federal guidelines, but the new Title IX procedures must be in place in just three months, which she said is “incredibly challenging” given that she and her team are not currently on campus.

She hopes to have an update on new sexual misconduct policies within the next month and a half.

Some students are concerned about the impact of the new guidelines on victims of sexual harassment or assault. Anne Pinkney ’20, former executive chair of SPCSA, said that she is worried that the guidelines will make the Title IX process “exponentially worse” for survivors.

“I think that, for all its faults, Dartmouth does try — they’ve implemented policies that I do feel are beneficial to survivors in a lot of ways, and I worry that those policies will be changed based on these new guidelines,” she said.

However, Flaherty pointed out that Dartmouth will still have resources available for victims of sexual misconduct.

“Title IX as a resource is changing, but there are also a lot of resources on campus that are not changing,” she said. “They’ll have to change in regards to how they interact with Title IX, perhaps, but Title IX is only one resource that survivors could go to.”

Peggy O’Neil, executive director of WISE, an Upper Valley organization that works to end gender-based violence, said that her organization will continue to advocate for survivors’ rights amid the new federal guidelines.

“We’re going to be there for survivors, for people who are impacted by violence, regardless of whether there are new regulations or new laws or changes in laws,” she said.