On May 6, the Department of Education issued new federal regulations regarding Title IX enforcement within educational institutions across the United States. In order to comply with these new rules, Kenyon will need to modify its existing Title IX policy by August 14 of this year.
The new policy comes a year and half after Secretary of Education Betsy DeVos first proposed changes to Title IX guidelines in November of 2018. Since DeVos’ initial proposal, Kenyon’s Office for Civil Rights has spent months reviewing these anticipated changes with groups such as Campus Senate, Student Council, Alumni Council, Staff Council and Faculty Executive Committee. At the federal level, the Department of Education has gone through the “note and comment” process, during which anyone with concerns could submit them to the department’s Office of Civil Rights (OCR). During this process, the OCR received over 124,000 comments, and, after reviewing them, has since made some adjustments.
One of the major changes that will affect Kenyon’s policy regards the process of investigation for Title IX cases. These new regulations will allow for direct cross-examination of complainants and respondents during a hearing in which students will have the opportunity to face their accuser. The complainants and respondents will also be able to appoint advisors or attorneys to question witnesses. This live-hearing model is currently prohibited under Kenyon’s policy, so the College will need to adopt additional procedures in order to implement it.
In contrast to the Obama administration’s 2011 “Dear Colleague” letter, which stipulated that colleges “take immediate and effective steps to end sexual harassment and sexual violence” and suggested that institutions apply the “preponderance of the evidence” standard rather than the “beyond reasonable doubt” standard adopted in criminal court, DeVos’ policy more closely resembles that of a court of law. This is likely because, whereas the “Dear Colleague” letter provided educational institutions with guidelines for Title IX policies and practices, DeVos’ policy does not simply resemble the law, but will officially be legislature.
Another significant change to federal Title IX guidelines regards the definition of sexual harassment. Under the Obama Administration, sexual harassment was defined as “any unwelcome sexual advance, request for sexual favors, or other unwanted verbal or physical conduct of a sexual nature.” Secretary of Education Betsy DeVos, however, has narrowed this definition, defining sexual harassment as “any unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” This standard is based on the 1999 Supreme Court case Davis v. Monroe County Board of Education, in which the Court ruled that all schools receiving federal funding are required to take action when they are aware of the occurrance of sexual harassment under the aforementioned definition. Kenyon’s Title IX investigations will have to adhere to this new standard.
DeVos’ latest guidelines also stipulate that schools investigate instances of sexual harassment which occur off campus property, such as during field trips or in “any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.” For colleges and universities, this point is crucial, as it directly impacts property owned by Greek organizations. More specifically, page 1800 of the policy reads, “Where a postsecondary institution does choose to officially recognize a Greek letter association, buildings owned or controlled by that fraternity or sorority are part of the postsecondary institution’s education program or activity under these final regulations.” For Kenyon, this means that both the Beta Theta Pi’s Beta Temple and Delta Tau Delta’s Delt Lodge would fall under Title IX jurisdiction, despite being owned by their respective organizations.
However, the document emphasizes that federal protections will not extend to students who are studying abroad. Kenyon currently offers to assist students in filing cases and offers counseling services if the incident takes place while studying abroad. The current policy encourages students to contact the Office for Civil Rights in Gambier and report the incident to their program. “We’ll work with [your program] to make sure your rights are protected,” the policy reads, in a section titled “you are always part of Kenyon.” Under the new federal regulations, it is unclear whether these options will remain available to Kenyon students studying abroad.
Although these new federal guidelines will alter the Title IX process at Kenyon, the College pledges to provide all students with the necessary support systems. In a Student-Info email regarding these changes, Samantha Hughes, Civil Rights/Title IX coordinator, emphasized the College’s dedication to this mission. “Kenyon is committed to fostering a campus environment that is free from sex- and gender-based harassment, discrimination and violence,” Hughes wrote. “We strive to provide all members of the campus community with the opportunity to learn and work in a setting that is safe and supportive. If an incident of sex- or gender-based discrimination or harassment is reported, the College will work to treat all parties involved with fairness and sensitivity while fulfilling the College’s obligations as outlined in the Sexual Misconduct and Harassment Policy.”
Students with questions about the new policy or anything related to Title IX should refer to the set of Frequently Asked Questions (FAQ) on Kenyon’s Title IX website or contact either Hughes at firstname.lastname@example.org or Civil Rights/Title IX Deputy Coordinator Kevin Peterson at email@example.com.
The Office for Civil Rights at Kenyon declined to comment and referred the Collegian to their earlier statement.