The U.S. Department of Education proposed changes last month to the rules that dictate how public K-12 schools and universities, including the University of Oregon, respond to allegations of sexual harassment. The rules are a part of a law commonly referred to as “Title IX,” which prohibits federally funded schools from discriminating based on a student’s sex.
The goal of the changes, according to a fact sheet from the department, is to increase clarity in the rules, improve control for students making formal complaints and bring “more reliable outcomes” to protect the rights of the accused.
Some survivor advocacy groups like End Rape on Campus fear that the proposed changes will cause survivors of sexual harassment or assault to report their experiences less often.
One change that will likely affect the university’s process is the requirement that schools allow the accused to question survivors directly.
The cross-examination to “test the credibility” of parties would be conducted by advisors and not the accused themselves, and would be subject to “rape shield” laws, which prohibit questioning of a survivor’s sexual history, according to the department’s fact sheet and press release..
The university’s current process requires that all questions be approved by and asked through the university-appointed administrator, according to the Title IX Office’s website.
At this point, the UO is still studying the proposed changes and how they’ll affect university policies, according to Vice President of University Communications Kyle Henley.
“The proposed changes to the adjudication processes are mixed and involve some positives and negatives for both parties, but lean more heavily towards protections for [the accused]” Henley said in an email.
Another change proposed by the department would reduce the number of people legally required to formally report accusations of sexual harassment by changing the definition of what counts as a school being “made aware” of allegations, according to the fact sheet.
End Rape on Campus fears this change will result in fewer reports as fewer staff members become required to report.
“Survivors’ ability to get help is severely limited,” the organization said in a position statement, “particularly from someone they trust.”
The university’s policy is currently stronger than the proposed changes. The reporting policy was altered in 2017 to create several different classes of employees who are required to report.
Henley expressed optimism that the federal proposal could encourage other universities to adopt similar policies.
“The proposed rules would also make UO’s new reporting policy a feasible option for more schools by giving more flexibility in the interpretation of responsible employees,” Henley said.
One of the other notable proposed changes includes the ability for schools to require “clear and convincing” proof of a violation rather than proof that a violation was “more likely than not,” according to the department. If schools selected the “clear and convincing” standard, survivors would be required to bring more evidence to prove their accusations.
In an interview last month, President Michael Schill said the university intends to continue with its policy of the easier to prove “more likely than not” requirement so long as it is able to under federal rules.
Henley said the university will be commenting on the proposed changes before they are finalized by the federal government. The Department of Education is accepting comments on the proposal from the public through Jan. 28, 2019, according to the Federal Register comment portal.
As far as the university goes, the future of its policies are still up in the air, Henley said.
“The bottom line is that our Title IX experts are still analyzing a lot of this information, which is new, and it’s still not 100 percent clear what impact it will have on our policies.”
