The 2017 guidelines advise colleges to roll back protections for surviors of sexual assault.
As the Trump administration signals a change in the federal government’s approach to Title IX, Kenyon’s policy will remain the same for the time being.
On Sept. 22, the Department of Education announced its decision to withdraw two components of the Obama administration’s Title IX guidance: the April 4, 2011 Dear Colleague Letter (DCL) on Sexual Violence and the April 29, 2014 Questions and Answers on Title IX and Sexual Violence. It has replaced them with a new DCL and a new Question and Answers on Campus Sexual Misconduct. These documents provide guidelines for how Title IX should be enforced.
Dear Colleague letters from the DOE and Question and Answers documents are meant to provide guidance on how education administrators can best enforce Title IX, particularly as it pertains to sexual misconduct. The Obama administration’s interpretation of Title IX, a federal amendment that prohibits discrimination on the basis of sex in federally funded education programs, encouraged colleges to apply the amendment to instances of sexual harassment and assault.
Assistant Secretary of Education Candice Jackson said in the most recent DCL that the pressure to comply with Obama era mandates put undue strain on administrators and shifted the focus from fair adjudication to compliance.
“It’s guidance, it’s not law,” Kenyon’s Civil Rights and Title IX Coordinator Samantha Hughes said – but because it is the federal government’s guidance on a law, she says colleges adhere closely to what the Department of Education says.
The new guidelines eliminate any sort of benchmark for the length of a Title IX procedure, as well as the suggestion that schools use a “preponderance of evidence” standard, a threshold of over 50 percent of evidence supporting the complaint, for adjudicating cases of sexual misconduct.
These guidelines will have no bearing on Kenyon’s policy, which is a single policy with one process for students, faculty and staff that it has had since 2015. Since Kenyon has used a preponderance of evidence standard in all student misconduct cases, it will continue to do so, as it will continue to adjudicate cases within its set limit of 45 days.
Nick Massari ’18, a co-leader of the Sexual Misconduct Advisors (SMAs), called the withdrawal of the two Obama-era guidelines “disheartening at best” in an email to the Collegian.
“While we are fortunate to attend Kenyon, where for the time being our most proximate peers will not be affected by these policy shifts, it is sad to think that other students at more vulnerable institutions will have to fight for the justice they deserve,” Massari said.
The Department of Education’s explanation for the new set of guidelines is that these policy shifts will make Title IX more equitable.
Hughes disagreed with this interpretation, saying the 2011 and 2014 guidance documents were much more clear and instructive than previous documents. For example, while the 2011 DCL says a reasonable time frame for a sexual misconduct investigation is sixty days, there is no mention of a reasonably prompt time frame in the new guidances.
The new guidance also criticizes the previous guidelines for requiring that schools adopt a “preponderance of evidence” standard for Title IX cases, as opposed to a clear and convincing evidence standard. In preponderance of evidence cases, the defendant or respondent must be deemed more likely than not responsible for the complaint. For evidence to be clear and convincing, it has to be substantially more likely than not that the respondent is responsible for the complaint.
“I think preponderance of evidence is most appropriate in an educational environment,” Hughes said, suggesting that it highlights a school’s standards for behavior and allows instances of minor misconduct to be adjudicated as a learning experience.
Massari suggested that the Department of Education’s withdrawal of previous guidelines is a “wake up call for everyone to practice and preach safe and consensual sex to the masses, and furthermore, to advocate for those students further unprotected by institutional silencing of their experiences.”