Colleges across the U.S. must overhaul their procedures for managing allegations of sexual assault on campus by Aug. 14 or risk losing federal funding. New rules from the Education Department lay out a mandatory process, at the same time bolstering protections for the accused.
U.S. Secretary of Education Betsy DeVos finalized changes to Title IX regulations on Wednesday that will mandate university officials cross-examine both the complainant and respondent in live hearings, with the presumption of innocence until proven guilty.
The changes also include a narrowing of the definition of sexual harassment to unwelcome conduct that is “so severe, pervasive and objectively offensive that it effectively denies a person equal access to education.”
Virginia Sapiro, Boston University professor of political science, wrote in an email she believes this definition leaves significant room for interpretation of what constitutes harassment and warrants investigation.
“What, exactly, is ‘objectively offensive?’ From whose point of view?” Sapiro wrote. “Men and women tend to understand their intimate and friendly behavior differently… So what is objective in that situation? What happens, for example, to no means no?”
BU spokesperson Colin Riley wrote in an email that the University has not yet started reviewing DeVos’ updates to the former Obama-era policies.
In the coming weeks, various offices including the Provost, Dean of Students, Equal Opportunity Office and the Sexual Assault Response and Prevention Center will peruse these regulations to determine their effect on current BU procedures, according to Riley.
“In the meantime, we will continue to provide counseling, support and resources to students dealing with a traumatic experience and will do so with sensitivity,” Riley wrote.
DeVos initially proposed these Title IX alterations in 2018. BU President Robert Brown previously expressed opposition to the changes in a Jan. 2019 letter to the Education Department.
John Gabrieli, executive director of Every Voice Coalition, a group that campaigns against campus sexual assault in Massachusetts, said his team has been fighting against DeVos’ guidelines since they were first proposed.
“This is a set of regulations that is designed to protect perpetrators and colleges from liability more than it’s designed to protect survivors,” Gabrieli said.
Universities had faced increased accountability under previous guidelines, which allowed survivors to demonstrate wrongdoing in court if they deemed their school was mishandling their case or attempting to silence them, Gabrieli said
Now, the power is in the hands of the university. And with this new definition of sexual harassment, Gabrieli said more students who come forward will be turned away.
“Because if it’s not so severe, pervasive and objectively offensive that it denies your opportunity to pursue your education,” Gabrieli said, “then they’re going to say what you experienced was unqualified sexual harassment under Title IX.”
BU’s current policy on the resolution of sexual misconduct complaints against students states that both the “complainant and/or respondent may decline to participate in the investigative or complaint resolution process.”
The new regulations, however, emphasize greater due process protections for students accused of sexual misconduct and require that in university hearings, both sides must use an advisor to partake in a cross-examination process.
Currently, BU may consider requests from either or both parties to choose to maintain anonymity and abstain from participating in the investigation, according to the BU Title lX documents. Whether or not this policy will be altered following DeVos’s changes remains to be seen.
Sapiro wrote that mandating a full hearing jeopardizes the confidentiality of both the accuser and the accused. Requiring each side to use a representative in the hearing, she wrote, may also lead to unequal representation based on wealth.
“I think that will quickly degenerate into people who are wealthy enough hiring a lawyer to do this,” Sapiro wrote. “Many of [lawyers’] practices and rules and manner are simply out of place and inappropriate outside of courtrooms and formal depositions, so they will transform a process that has attempted to emphasize fairness.”
To prompt investigation, DeVos’ regulations now require survivors to report cases in a formal process to high-ranking university authorities. This added measure contradicts Obama-era Title IX rules on college campuses as well as BU’s standing policy on reports of misconduct.
In 2011, the Obama administration stated that “if a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action.”
BU’s Sexual Misconduct/Title IX Policy stipulates that students may directly report misconduct to the DOS, the Office of Judicial Affairs, a Title IX Coordinator, the BU Police Department or a “responsible employee” — which could include faculty, coaches or resident advisors, who are obligated to report the incident to the University Title IX Coordinator.
Additionally, the updated rules do not obligate universities to handle reports of sexual misconduct occurring anywhere not owned by the university or by a student organization not officially recognized by the school.
Gabrieli said this stipulation emphasizes a move toward protecting universities through looser regulations regarding their jurisdiction over cases of sexual misconduct.
“That has nothing to do with due process,” Gabrieli said. “You’re no more innocent or guilty if you’re accused of committing rape or sexual assault on campus or off.”
Roughly 25 percent of BU students live off campus after their freshman year, according to BU Today, meaning a quarter of the BU undergraduate population is potentially unable to try their case through the University.
Gabrieli said that in the process of drafting the new guidelines, the Education Department cited data suggesting the regulations would reduce reports of misconduct by between 39 to 50 percent and drive down legal costs for universities.
“5 to 10 percent of cases are reported in the first place, and we’re talking about cutting that rate almost in half,” Gabrieli said. “And that’s not some external source or think tank or activist group, that’s the department’s own internal estimate.”
Director of SARP Maureen Mahoney and crisis intervention counselor Nathan Brewer wrote in a joint email that SARP will continue to provide the same services, but BU’s sexual misconduct policies may change.
“How BU applies these guidelines is yet to be seen,” Mahoney and Brewer wrote. “We are hopeful that schools, including BU, will implement any required changes in a trauma-informed way.”
Mahoney and Brewer wrote that they are not yet able to discern the long-term effects of DeVos’ regulations, but that much of the policy is up for interpretation by individual schools.
“While some of the guidance is directive, many other components provide a range of acceptable policy options that each school will choose from,” they wrote. “The impact of these changes will not become fully clear for a number of weeks or months as schools digest the guidance and begin to propose alterations to their existing policies.”
Pranai Basani, a sophomore in the College of Arts and Sciences, wrote in an email that he fears DeVos’ regulations will be damaging.
“I feel that the new regulations will actually discourage students from coming forward, as no one should be forced to relive such a traumatic event in front of the assailant,” Basani wrote. “Being forced to tell high ranking administrators without going through a trusted individual would be very terrifying and would also deter many students.”
Basani added that the policy subjects students in non-BU Housing to unequal treatment.
“Students living off-campus are tuition-paying students of the university,” Basani wrote. “It is outrageous that they will be left on their own for simply choosing not to live on campus.”
Ahnaf Eram, a sophomore in CAS, said he finds the prospect of students being represented by lawyers in a university-run hearing to be “absolutely absurd.”
“If either side is able to afford a better lawyer, then they can indeed have a bigger advantage,” Eram said. “If we’re bringing lawyers into this, then this thing should go to the court [and] public prosecution instead of a school meeting.”
Eram said he believes that if BU is obligated to require both the survivor and accused to be present at hearings, the trials should be held exclusively through online platforms.
“There’s a clause in the regulation that says, ‘Gives schools flexibility to use technology to conduct Title IX investigations and hearings remotely,’” Eram said. “In that case, the victim doesn’t necessarily have to see the accuser again. We could do it through Zoom.”
