On Sept. 22, 2017, the U.S. Department of Education (DOE) issued interim guidelines pertaining to the enforcement of Title IX, which continue to stand. On Nov. 16 of this year, the DOE proposed new regulations, but it has not yet been determined when they will come into effect. In the face of these changes, the Office for Civil Rights at Kenyon is working to ensure that a just system is in place.
Among the major changes in these new proposed guidelines is the new requirement of a hearing in cases of sexual assault. In this hearing, individuals who served as investigators cannot serve as the adjudicator, nor can the Title IX coordinator. The guidelines also mandate that this hearing must include direct cross-examination — that is, explicit questioning of both parties. This regulation was not present in the previous guidelines.
Also important is that Title IX would no longer apply off-campus, meaning that events that occur between two members of Kenyon’s student body, faculty and staff anywhere that is not on campus, including off-campus study, would no longer be covered by Title IX. Regardless of these changes, Samantha Hughes, Kenyon’s Title IX coordinator, says that the Title IX office is “always going to do what we, as a community, feel is right by all people.”
The guidelines would also significantly change the definition of sexual harassment. The new proposed regulations roughly define sexual harassment as requiring unwelcome sexual conduct as a condition for an aid, benefit, or service, or unwelcome conduct on the basis of sex that inhibits a person’s equal access to education programs or activities. This definition does not match the Equal Employment Opportunity Commission (Title VII) definition, which states that sexual harassment is defined as unwelcome sexual advances made in such a way that either employment conditions are on the line, decisions of employment could be made or that create a hostile work environment. Employees of the College would be beholden to two separate definitions of the same term, which could lead to confusion in enforcement, according to Hughes.
President Sean Decatur’s greatest concern is that the new regulations lack clarity and specificity. Specifically, he noted that while the Obama administration’s regulations stated that the standard of proof should be preponderance of evidence, the current administration has, via a lack of specificity, opened up the possibility of schools requiring evidence of a violation beyond any reasonable doubt. Decatur notes that there is no mandate in this regard, and that, as of this time, Kenyon has no plans to change its procedure.
“I don’t envision that impacting our policies and the way that we have operated,” he said.
Once these regulations come into effect, Kenyon will have an as-of-yet undecided amount of time to come into compliance with the federal guidelines. During this process, the Office for Civil Rights would present Campus Senate, Staff Council and faculty with the guidelines that the government would set forth for them to approve.
Much of the information in the proposed new regulations is subject to change until the regulations are finalized, but Hughes wants the Kenyon community to know that the Title IX office is working to be as transparent as possible, and will relay information to campus as it arrives.
The proposed guidelines are currently in a 60-day public comment period. Members of the public may comment on the proposal on the Federal Register website (www.federalregister.gov) until Jan. 28, 2019.