Earlier this month, the U.S. Department of Education released a set of proposed provisions that would regulate how schools comply with Title IX, the landmark civil rights law which prohibits sex-based discrimination in educational institutions that receive federal funding. If passed, Amherst would be compelled to change certain aspects of its sexual misconduct policy.
The proposed provisions narrow the definition of sexual harassment, decrease educational institutions’ obligations to deal with allegations and strengthen the rights of the accused. It represents a significant reversal from the Title IX guidance put forward by President Barack Obama’s administration and largely followed by Amherst, which stresses victims’ rights and recommends a greater focus on ensuring protections for sexual misconduct survivors.
U.S. Education Secretary Betsy DeVos emphasized the importance of due process in the proposed revisions. “Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined,” she said in a press briefing on Nov. 16. “We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process.”
However, many view the current process as fair and see the changes as a step back for people who face sexual harassment. The American Civil Liberties Union, for example, issued a statement opposing the proposed regulations, on the grounds that it “inappropriately tips the scales in favor of the accused and against those who report sexual assault.”
In a school-wide email, President Biddy Martin noted that administrators were thoroughly examining the draft amendments, but reserved explicit judgement of the regulations for the time being.
“We are carefully reviewing the 149-page document and consulting with others to determine exactly what is being proposed and how the draft regulations could affect our own sexual misconduct policies and practices,” she wrote. “As soon as we have a clearer sense of the implications of the draft amendments, we will almost certainly wish to respond to them in the form of a comment.”
Laurie Frankl, Amherst’s Title IX Coordinator, indicated that these proposed regulations would ideally balance due process for the defendant and protections for sexual harassment survivors.
“I understand the criticism that comes from certain pockets around these types of proposed regulations, and I understand the anxiety and some of the fear that is behind that,” she said. “I also understand that there are other pockets who feel that responding parties, particularly students, have not been treated fairly in the past. … Whether these regulations successfully strike the balance, I don’t know the answer at this early stage. We’re still going through them.”
Nevertheless, Frankl defended the current processes used at Amherst and at other institutions, saying that they already did a good job in balancing the rights of both the victim and the accused. “I don’t think it’s true that all institutions have been failing at equitably meeting both parties’ needs, and I’m proud of the work we do here in terms of our equity,” she said.
In analyzing the specific policy changes put forward, Frankl remarked upon a few areas that have prompted some concern. Particularly, she emphasized the significance of the shift from expectations to rules in how schools interpret Title IX policy.
“The guidance that we’ve received from the federal government has been just that — it’s been guidance. What’s different now is that the federal government is saying, ‘these regulations are going to become part of the Federal Register and have the force of law,’” she said.
She also noted overall divergence of some of the proposed changes to the current consensus among educational institutions. She pointed to the proposed policy of mandatory cross-examination by an advisor as something that represents “a pretty significant difference from where [Amherst has] been, and from where most institutions are, frankly.”
Martin and Frankl encouraged students who wish to express their opinions on this topic to submit comments to the Department of Education during the mandated 60-day consultation period, which ends on Jan. 28, 2019, through the proposal’s official page on the Federal Register. Frankl also said that those who have concerns more specific to Amherst’s policy regarding sexual misconduct can approach her directly. A summary of the key proposed changes and their congruence with Amherst’s existing policies is available on the school website.