On May 6, the federal government released its final rule under Title IX of the Educational Amendments of 1972. Already, commentators have noted that the new rule includes troubling requirements that weaken institutional responsibility for sexual harassment (including sexual assault) and deepen, rather than improve, the distrust that many survivors have about their institution’s ability to respond effectively and justly to the harms they have suffered.
Yet administrations in higher education are not, by and large, in the business of civil disobedience. For most institutions, defiance of this rule, which has the force of law, is not an option. The question then becomes: are there ways of meeting these legal requirements while maintaining an institutional commitment to preventing sexual harassment and sexual assault, fostering a community that respects gender equality and justice, developing evidence-based policies and practices that avail themselves of up to date scholarship and best practices, and providing fair and just procedures that respect the rights and dignity of all the parties involved? I hold that there are some limited opportunities to do just that, but developing them will demand a careful examination of the new rule and some creative problem-solving – both of which are made even more difficult by the cruelly brief timeline under which institutions will be working (more on that below) and the pandemic crisis. This blogpost offers some initial suggestions on what such creative, law-abiding solutions might look like, in the hopes of jump-starting the conversations that are now underway at colleges and universities about the new rule. Full disclosure: I have no formal legal training, and the suggestions below will be more costly than the bare minimum required by law. They also assume an institution with one or more strong constituencies committed to gender equality and the undermining of cultural norms and behaviors that maintain the appalling frequency of sexual harassment and assault. Without such political will, few of the suggestions will be feasible.
Even before the institution undertakes the revision of its policies, it can and should take two immediate actions: first, it should communicate to the entire community that the new regulation will require significant changes to the institution’s policies and procedures, but that such changes will be undertaken with a continued commitment to student safety and well-being, gender justice and equality, and processes that are fair and prompt. Second, it should join legal attempts to delay implementation of this regulation (victims’ rights advocates have joined the ACLU lawsuit against the new rule, and have requested that the rule be enjoined while the lawsuit progresses; if this request is allowed, institutions will not have to align their policies with the rule unless and until the lawsuit is settled in the federal government’s favor, a process which could take some years). The rule gives educational institutions a mere three months to effect significant changes in policies, procedures, staffing, and training – all of which need to be undertaken in consultation with multiple campus constituencies, some of which (such as faculty) are not as accessible during the summer. This short time is simply untenable, particularly in the context of the pandemic crisis, which is forcing institutions to plan for a fall semester that will include enormous changes to every aspect of the campus experience. Every institution should state by whatever legal means possible that this mandate is virtually impossible to meet well in the time allotted.
Having taken these two steps, institutions should then review the new mandates with the following question at the forefront: how can we meet these new requirements while also meeting our ethical obligations to prevent and respond proactively to sexual harassment and sexual violence and preserve the safety and dignity of all of our community members? In what follows, I have identified some potentially problematic elements of the new rule, and suggested ways of incorporating them into new policies in ways that mitigate their potentially damaging effects.
- Presumption of non-responsibility. The new rule mandates that university procedures proceed with a presumption of non-responsibility on the part of the respondent, and that such a presumption be explicitly stated in official correspondence regarding any allegation. In order to render both the process and the representation of the process equitable and fair, institutions should also proceed with, and state just as clearly and alongside every statement of the presumption of non-responsibility, a presumption that the complainant is acting in good faith, and is not actively seeking to deceive or mislead the university.
- Mandatory reporter policies. The new rule states that institutions’ Title IX responsibilities only kick in when they have “actual knowledge” of incidents (not when they “know or should have known” about them). Such actual knowledge is defined as reports that are made to the Title IX coordinator and university officials with the ability to impose punitive measures. The new rule does not prohibit an institution-specific policy regarding mandatory reporters — that is, institutions are free to name more individuals and groups as mandatory reporters than the law requires – but it negates any legal obligation to name a wide swath of institutional officials as mandatory reporters (and so institutions are now free, for example, to omit department chairs, coaches, etc. from that group). At the very least, institutions need to revise any formal and informal language that describes broad mandatory reporter policies as required by federal law. I happen to be opposed to blanket policies that render all faculty and staff (and in some cases, students) mandatory reporters for the purposes of Title IX. If your institution has one of those in place, this is an opportunity to dismantle it in favor of something that, from my perspective, would be far less chilling. Institutions need to think carefully about who should be identified as a mandatory reporter, and provide training and guidance to all community members about how they should respond when they become aware of sexual harassment or sexual violence.
- Role of advisors. The rule requires that institutions provide advisors for any parties involved in a Title IX investigation who are unable to secure their own advisors. Moreover, although the participation of such advisors (who may be, but need not be, attorneys) in hearings can be significantly limited by the university, the university is obligated to allow them to directly cross-examine the opposing party; in fact, direct cross-examination can only be undertaken by the advisor to one of the parties. This requirement opens the door to significant inequalities among the parties, as the party who is financially able to hire an attorney well-skilled in cross-examination will have a significant advantage. Institutions should take steps to develop a pool of potential advisors who can be trained, as much as possible, in cross-examination, and compensate those advisors both for the training and for any specific cases in which they end up serving as advisors.
- Relevance of questions in direct cross-examination regarding previous sexual behavior of complainant. The rule explicitly states that some questions regarding the complainant’s previous sexual behavior and sexual dispositions may be relevant. This language could be used to allow a large scope of questions that some state law would prohibit in criminal cases, and so institutions should develop more detailed policies that specify the bases on which certain questions about previous sexual behavior would be deemed irrelevant. Each state has different version of rape shield laws, and institutions should look to them to develop the exclusions. Until recently, the Violence Against Women Act established a federal rape shield, but as VAWA was not renewed in 2019, it is moot.
The rule does not require the admission of questions regarding the complainant’s sexual behavior subsequent to the alleged incident. Institutions should make clear which questions regarding subsequent sexual behavior will be considered relevant. For example, while they are a common trope in both legal cases and mainstream reporting on sexual assault, questions regarding subsequent consensual sexual interactions between the parties should be considered irrelevant to the question of consent in the interaction(s) described in the complaint. Such questions are grounded in the empirically unfounded assumption that survivors of sexual assault always and consistently respond to their assailant with anger, withholding of positive emotions and affect, etc. Because so many sexual assaults occur within existing relationships and networks of relationships, and because survivors often struggle to recognize and admit that they have been assaulted, it is not uncommon for survivors to maintain emotional and sexual ties to their assailants. - A multi-track system for addressing complaints regarding sexual harassment, including sexual assault. The new rule limits the kinds of allegations that trigger Title IX obligations to quid pro quo harassment, sexual assault, dating violence, domestic violence, stalking, and “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity” (§ 106.30 [a]). Elsewhere, the rule also states strongly that only acts that take place within the institution’s programs and activities and the geographical boundaries of the United States fall under Title IX. Moreover, any allegation that does not meet all of the criteria that the rule sets out must be dismissed from the Title IX process by the university.
If universities limited their procedures to Title IX processes, they would render themselves incapable of responding to some of the most prevalent forms of sexual harassment and sexual misconduct. Were an instructor to give a single thirty-minute lecture that blatantly sexualizes all of the female-identified students in the class, that behavior might be considered severe and offensive, but not pervasive; seemingly gentle but distinctly sexualized teasing or touching by a peer, even if that peer had been informed of its unwelcome nature, could be considered objectively offensive and pervasive, but not severe; aggressive demands for romantic attention may well not be considered objectively offensive. Incidents of sexual harassment and sexual assault occurring in private, non-university-owned residences unaffiliated with any university organization (including any incidents between instructors and students so geographically limited) would have to be dismissed, as would any incidents occurring within the context of study abroad programs or those involving visitors to campus. Institutions would also have to dismiss, by and large, any prior incidents involving alumni or faculty and staff not currently employed by the institution.
A multi-track system for addressing complaints regarding sexual harassment and sexual assault is necessary in order to ensure that universities can continue to respond substantially to incidents and behavior that this new rule explicitly excludes. This possibility is explicitly recognized in the new rule ((§ 106.45 [b] [3] [i]): no civil disobedience is required.
Such a system would include three distinct tracks:
1. Title IX process, applicable to both students and employees;
2. Sexual Misconduct for Students process; and
3. Sexual Misconduct for Employees process (which may or may not distinguish between faculty and staff, depending on the institutional context).
Any allegation that came before the Title IX Coordinator would be assigned to one of these three tracks. Any allegation that did not meet all of the criteria listed above would either be dismissed from the Title IX process and assigned to one of the other tracks, or dismissed from both. Because the parties involved in any particular allegation may have a preference regarding the track to which their matter is assigned, processes to appeal the assignation should be developed. Such challenges should provide arguments explicitly citing and applying the criteria in the Title IX rule to support their claim that a different track is more appropriate. An official report could include multiple allegations, some of which would fall under the Title IX process, and some of which would not.
The Title IX process would need to include all of the procedures mandated in the new rule, including a live hearing, direct cross-examination, the presumption of non-responsibility on the part of the respondent, the standardization of the evidentiary standard, and so on. However, the Sexual Misconduct processes would be free from such requirements, and indeed would be separate from the university’s Title IX obligations.
The complexities involved in aligning a college or university’s policies with this new rule will continue to emerge, and so the suggestions and questions listed above will certainly not end up being comprehensive or complete. But institutions of higher education, even as they struggle with unprecedented fiscal and health pressures, are forced to address them, and should do so with as much insight and care as they can muster.
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Ann J. Cahill
Ann J. Cahill is professor of philosophy at Elon University, where she has contributed over the last two decades to the development of institutional policies and practices regarding sexual harassment and sexual violence. She has published widely on the topic of sexual assault, including her 2001 work Rethinking Rape (Cornell UP), as well as other topics at the intersection of feminist theory and philosophy of the body, including beautification, miscarriage, and sexual ethics. She is currently working on a co-authored work addressing the social, political, and ethical meanings of voice as human-generated sound.
