SLU Contemplates Title IX Adjustments
October 5, 2017
With the topic of sexual assault becoming more and more prevalent around the SLU community, many people have been hearing the words “Title IX”. While almost every student hears a rough overview of Title IX during orientations and information on the Title IX office is included on every syllabus, many students don’t understand Title IX completely. Title IX was implemented in the 1970s and prohibits sex discrimination, making it mandatory for schools to protect against sexual violence, among other provisions.
Earlier this year, the new Secretary of Education, Betsy DeVos, announced that changes would be made to the Title IX guidelines, the set of recommendations sent by the Department of Education to schools that advises institutions how to best implement the Title IX law. Secretary DeVos rolled back several guidelines and rescinded the “Dear Colleague” letter instituted during the Obama administration.
Marcia McCormick, Professor of Law and Associate Dean for Academic Affairs at the Saint Louis University Law School, spoke to UNews about the changes that the guidelines are undergoing.
“It’s important to note the law itself is not changing,” McCormick said, “just the guidelines sent from the Department of Education on how to implement it.”
While the DOE rescinded the guidelines from the Obama era, they have not replaced them with anything new, instead sending out a question and answer document that gave an outline of possible changes.
Anna Kratky, SLU’s Title IX coordinator, said that even though there have been proposed changes to Title IX guidelines, schools are unlikely to see any certain guidelines changes for another nine to 18 months. Kratky said that the proposed changes are going through a “comment period” where schools and the Department of Education will review the ideas and provide feedback. Perhaps a comforting idea to SLU students is that the university itself is participating in the review of Title IX.
Changes to the guidelines begin with the standard of proof used in cases of sexual violence. The proposed guidelines could allow schools to choose whether they want to use the “Preponderance of the Evidence” standard that is currently being used, or a new, higher standard of proof, known as Clear and Convincing evidence. The courts of law in the US use the Burden of Proof standard, which means that it must be proven “beyond a reasonable doubt” that an accused party is guilty. The Preponderance of the Evidence standard states that it must be proven that the evidence is more likely to be true than not so. The standard indicated in the new guidelines is in the middle of the two. It is slightly less demanding than that used in a criminal trial, but substantially more than the Preponderance of the Evidence.
McCormick said that the Clear and Convincing standard of evidence is being used to compel schools to treat cases of discrimination and sexual violence more like criminal cases used in the court of law, which could possibly change the outcomes of sexual violence cases. Students that would have been found guilty under the Preponderance of the Evidence standard may not be found guilty under the Clear and Convincing standard.
“The archetype of sexual violence is the stranger in the dark alley,” said McCormick. “However, the less a situation looks like the archetype, the harder it will be to prove any guilt. The courts tend not to see victims as credible, especially when the parties have been drinking and if there are no outside witnesses, which most often there are not. Without witnesses, it will be hard to meet this higher standard of evidence.”
Another proposed change to the Title IX guidelines is the removal of a fixed time period in which schools must respond and complete a Title IX investigation. During the Obama administration, the amount of time schools had to complete investigations was 60 days, prompting quick responses from institutions. Under the new guidelines, schools would not have a specified time to complete an investigation, but are simply urged to work promptly. McCormick said that this change is not necessarily good nor bad, but depends on the school.
Making the process longer not only makes it harder to prove guilt, says McCormick, but it makes life harder both parties. “If the process takes a long time, the accuser might still have to live on campus with the person who assaulted them or sit next to that person in class,” said McCormick. Similarly, the accused parties do not get a remedy until the process is over either. “If an accused student is eventually found not guilty, they won’t know they are off the hook until the whole process is over.”
One of the motivations behind the proposed changes is the idea that Title IX does not do enough to protect the students who are accused of sexual violence or discrimination. Because Title IX is a law that prohibits discrimination on the basis of sex, it supposedly already protects accused students from being discriminated against. Accused students are already allowed to find out the allegations made against them, and to present their side to the decision-making group.
The proposed guidelines could also allow schools to not only allow appeals of their decision but to also choose if both parties can appeal or if only the responding party are allowed to appeal decisions. It also urges that both public and private schools need to provide due process to both parties in an investigation, following the process of any other school policy violation investigation.
Kratky said that, either way, the SLU Title IX office is in good shape. “We already use the same process for school policy violations, and offer both parties the same resources in an investigation,” said Kratky.
Another proposed change is the idea that mediation should be offered to both parties in an investigation. Mediation is the process of sitting down with both parties to talk out what happened. Mediation is not typically deemed appropriate for sexual violence cases and is not used in a Title IX investigation at SLU. Kratky said that this is a very highly contested and debated part of the new proposed guidelines.
It could be a while before the proposed changes are judged as positive changes or negative ones, but McCormick expressed concern that if the new changes make the process longer and more challenging, it could possibly discourage students from using the Title IX offices. However, the proposed guidelines should in no way scare any students right now, and it will be a long time before anything is set in stone.
“This is just the beginning, and there is a long way to go,” said Kratky. “It is too early to tell if these will be positive or negative changes, but I want to assure students that SLU is committed to serving all of our students, and making sure they can receive an education free from discrimination. We will be open and transparent the entire way through.”