Title IX, under the Education Amendments Act of 1972, is one of the primary laws protecting students against gender discrimination in schools and universities—and against sexual misconduct, harrassment or assault.
On May 6, the United States Department of Education (DOE) released changes to Title IX regulations, narrowing definitions of sexual misconduct and broadening the requirements of cross examinations to be in person. The changes were announced to Portland State students the next day in an email announcement by Julie Caron, PSU’s Title IX coordinator and interim vice president for Global Diversity and Inclusion.
Currently, Title IX covers three primary types of sexual misconduct. The first is quid pro quo misconduct, where one person offers benefits or advantages in return for sexual favors. The act itself doesn’t need to happen to count as misconduct, only the offer, and remains relatively unchanged by the new regulations.
Title IX also covers all types of sexual assault, and the new regulations have broadened the definition to include dating violence, domestic violence and stalking, requiring all of it to be addressed by universities when they happen.
One of the most notable changes to Title IX is to the third type of sexual harassment defined by the regulation. Originally, the definition of sexual harassment included conduct that is “sufficiently severe, persistent, or pervasive that it adversely affects a student’s education or creates a hostile or abusive educational environment,” according to the DOE.
However, under the new regulations, the definition has been narrowed to unwelcome conduct that is severe, pervasive and objectively offensive. Actions now need to qualify as all three in order to fall under Title IX.
“In the past, we were looking for persistent or pervasive, and under Title IX, it needs to be all three, and it makes it difficult to address some conduct with that definition,” Caron said.
However, with a more narrow definition, the new regulations also require a more demanding investigative process.
Prior to the new Title IX changes, PSU used a single investigator model, with a single investigator working one on one with survivors, respondents and relevant witnesses. Interviews would be conducted with each person, and if enough evidence was found, the case would move on to review. Both the survivor and respondents had the chance to choose an advisor in their case and review the information gathered, but remain separate throughout the process.
“I have investigated some cases…I can’t do any investigations as the Title IX coordinator, but I have done some in the past,” Caron said. “One of the first things the student will say to me is, do I have to confront the faculty member I’m bringing the case against? And the answer is, not likely. Because in the investigative process, they’re never together in the same room.”
However, under the new regulations, the process will require a live hearing and cross examination.
“A lot of people are saying it’s getting more due process,” Caron said. “My concern with this process is, it’s creating much more of a court-like proceeding without having people trained as lawyers and judges. Will there be inequity in it, and also, will it create barriers to students being able to [or] being willing to bring something forward?”
The new Title IX regulations have also changed regarding incidents happening off-campus, requiring schools to address sexual misconduct during any school-related programs or activities, even if they are not on campus. Prior to the regulations, so long as the misconduct involved PSU students, PSU would address it regardless of its location.
Anticipating the new federal regulations, Oregon’s legislature passed H.B. 3415 in the 2019 regular session. The statewide regulations for all Oregon universities more closely resembled the previous Title IX rules, with a broader definition of sexual harassment.
“I was happy to see the state was passing a broader definition, but the feds could have said…in higher education, you have to apply the federal law, and those are the only areas of sexual harassment you can address,” Caron said. “They didn’t say that. Which means we can address conduct that doesn’t fall within Title IX.”
The new state regulations also expand upon training obligations for employees whose work covers Title IX.
“The state requirements are much more focused on making sure it’s trauma-informed, so that you understand the prevalence of sexual harassment and sexual assault, that you understand cultural responsiveness,” Caron said. “That’s something…I feel we’re doing a pretty good job [with] here. We have advocates that not only are in the Women’s Resource Center that serve all genders, but we also have advocates in culturally specific areas too, so people can feel comfortable going to an advocate, based on who they would like to identify with.”
Moving forward, a decision on PSU’s processes amid the new regulations will need to be made. If misconduct falls under the definition of Title IX, it will need to go through the Title IX investigative process, including the live hearing. However, PSU can create a separate process for conduct that only falls under previous legislation, and use the single investigator model in handling those cases. Multiple processes using different definitions of conduct, however, could become more confusing. The new rules, according to the DOE, must be implemented by August of this year.
“I do want students to know that as we’re moving forward with these processes, we will be looking for best practices, and we will be looking for how to be providing them trauma-informed, but also be making sure that they’re equitable and not biased,” Caron said. “We are hoping students will still have the confidence in the process to be able to bring concerns forward.”
