U.S. Secretary of Education Betsy DeVos announced the final revisions to the Title IX regulations on May 6. Those regulations, which guide U.S. universities in responding to sexual assault and gender-based misconduct, quickly received criticism for its narrower definition of sexual harassment, its promotion of cross-examination by an independent advisor and new guidelines that limit what types of cases will be tried within the Title IX process.
The American Civil Liberties Union filed a lawsuit against DeVos and others over the new regulations, claiming that the Department of Education “has radically reduced the responsibility of schools to respond to complaints of sexual harassment and assault,” among other claims.
UO law professor Merle Weiner, who headed the UO Senate’s Responsible Reporting Group, said that the the new regulations, which include a cross-examination process, provide new protections to those accused of sexual assault.
In the new regulations, DeVos stated that “where cases turn exclusively or largely on witness testimony as is often the case in peer-on-peer grievances, cross-examination is especially critical to resolve factual disputes between the parties and give each side the opportunity to test the credibility of adverse witnesses, serving the goal of reaching legitimate and fair results.”
Another point of contention is the redefinition of sexual harassment. Based on a previous court precedent, the new regulations define sexual harassment as “conduct that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education.”The ACLU lawsuit pointed out how previous definitions of sexual harassment used the broader terminology “severe, pervasive, or objectively offensive.”
Other parts of the definition include a “school employee conditioning education benefits on participation in unwelcome sexual conduct” and “sexual assault, dating violence, domestic violence, and stalking.”
UO Title IX coordinator Darci Heroy said she doesn’t think that the regulations provide those accused of sexual assault new protections. “I think a lot of these procedural protections have been built in the process for several years, including under the Dear Colleague letter and other guidance,” she said.
The DOE will need to clarify some of the regulations for their intentions to become known, Heroy said.
Title IX regulations come from the Department of Education. These new regulations, set to take effect in August, will replace the “Dear Colleague” letter — the Obama administration’s guidelines, published in April 2011.
According to Heroy, the “Dear Colleague” letter “had much broader language in a lot of ways,” including the definition of sexual harassment.
At the same time, she said, there were elements of the former regulations that restricted how the Title IX process worked, including limiting informal resolution. “And that made a lot of schools very wary of doing any kind of facilitated informal resolution,” Heroy said.
The DOE cited some of Weiner’s articles in the footnotes in the over-2,000 page Title IX regulations document released last month.
Her article, explaining UO’s reporting policy, featured in the footnotes relating to the DOE’s reporting policy. Heroy said it stood as an endorsement for the university’s structure.
But Weiner said that the regulations aren’t ideal from her point of view, even on the reporting process.
Weiner was the chair of the UO Senate Responsible Reporting Group, according to the UO Senate’s website. It was on that task force, she said, that the creation of UO’s new policy on reporting came to be.
The task force wanted to create a policy where survivors of dating or sexual violence had more autonomy in the reporting process. “It was difficult because the law was written that, essentially, everyone had to report, no matter what,” she said, which limited the number of reports the university received.
She said the task force wanted to prevent cases of sexual assault from being reported without the survivor’s consent.“I want to do what’s best for survivors, and I think that was the orientation of everyone on the committee,” Weiner said. The task force wanted to create a policy that would be good for all survivors, she said — for those who wanted to report what happened, and those who didn’t
UO’s new policy obligates an individual who is told about sexual or dating violence to offer that person access to the supportive resources on campus, and offer to report the experiences to the Title IX office on their behalf. Weiner called it the key question — “Can I report for you?
If a student would rather talk to confidential advocates, then the individual must assist in putting them in contact. “So, it was this way to really honor people’s autonomy in a way that would also encourage people, really, I think, to get support and hopefully to report, if that’s what they thought was best,” Weiner said
That new policy informed Weiner’s article, “A Principled and Legal Approach to Title IX Reporting,” published in 2017. Weiner said that the task force was “kind of out on a legal limb, a little bit, because it wasn’t clear you could do this through the regulations.” She wrote the article to tell other schools about UO’s policy and how to defend it under the “Dear Colleague” letter regulations.
Weiner stressed the importance of the Student Survivor Legal Services, the domestic violence clinic at the UO law school. The clinic offers free legal support available to survivors of domestic and sexual violence, she said. “I would want people who are concerned about that to know that the basic obligation of the university has not changed.”
“We as an institution have put a lot of work over the last several years into creating better response processes, support options, reporting policies that really encourage reporting,” Heroy said. “And none of that is going to change.”
