Recent Title IX Policy Narrows Definition of Sexual Harassment

The College has adopted a new Interim Title IX Policy and Interim Title IX Grievance Process in compliance with the new guidance for Title IX, a decades-old law protecting against sex-based discrimination at institutions receiving federal funding, which was released by the US Department of Education in May. Students have expressed concerns about these changes, which limits the range of actions that qualify as violations of Title IX. However, these behaviors may now be governed by the college’s own policies, some of which are forthcoming.

On August 14, Title IX Coordinator Laurie Frankl sent an email to students, staff and faculty that outlined the core changes and provided links to the new policies in full. According to the email, the changes “narrow the breadth of sex-based behaviors [that] are prohibited under Title IX.” It will also expand due process protections for those accused.

According to the new guidance, only if an act is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education” can it be deemed as “hostile environment sexual harassment” and regulated as such under Title IX.

Frankl noted that the “objectively offensive” standard means that “it’s not enough for the behavior to be offensive to the person who experienced it; the analysis is whether a reasonable person in the same shoes would find it offensive.” Frankl also pointed to a lack of clarity in the new criteria of pervasiveness, which she said the Title IX office is still working to understand.

These specifics, Frankl said, differ from previous guidance, which defined Title IX violations simply as “conduct of a sexual nature that is unwelcome.” Frankl noted that there have been reported behaviors at Amherst in past years that would no longer constitute Title IX violations. 

To address this, the college aims to supplement Title IX regulations with its own policies. Most notably, the college plans to implement a “Non-Discrimination and Harassment Policy” to address behaviors that were previously but are now no longer covered by Title IX. Frankl emphasized that the behaviors to be covered in this policy are largely already considered unacceptable in the student code and staff and faculty handbooks: this new policy will “give a much more clear statement to the community about how to report, the resources and what structures are going to be in place for the college in terms of how we evaluate those types of matters,” Frankl said. Broadly speaking, Frankl emphasized that “the law is our floor, not our ceiling.” In other words, she said that the college can uphold its own community standards as long as it meets some minimum requirements set by the federal government. 

Other changes include the new Interim Title IX Grievance Process, which governs the complaint, investigation and resolution of all formal Title IX complaints brought against any student, faculty or staff member. The interim process now provides a live hearing for any formal complaint brought against a community member from any cohort, and in accordance with the new federal rules, advisors to parties to a formal complaint are required to attend the hearing to conduct questioning of the other party and any witnesses during these hearings. Both of these changes are required by the new mandates. Parties who do not have an advisor for the hearing will be provided one by the college. 

Additionally, the new regulations require the Title IX office to review all Title IX complaints with a consistent standard of evidence. Notably, this means that faculty will no longer be subject to the “clear and convincing standard,” in which an allegation must be “highly probable” to proceed, and will instead by subject to the stronger “preponderance of the evidence standard” already employed for students, wherein an allegation only has to be more likely true than not to proceed. In her email, Frankl stressed that “resources and support remain available to any community member who feels they have experienced any sex- or gender-based behaviors.”  She also noted that the Title IX Review Committee will craft its final policy using college community input.

Maddie Hahm ’23, a Student Health Educator (SHE), said that these changes made her “incredibly uncomfortable,” and that it “feels like we’re taking a step backwards.” Hahm argued that Amherst already failed to handle sexual assault well enough in the past, particularly citing Black women who spoke out on the @BlackAmherstSpeaks Instagram page to point to Amherst’s insufficient help and support for women of color who face sexual harassment. She fears that now more than ever, students will not feel heard and cases of misconduct will “slip through the cracks” because the college has shifted its obligations for responding to reports. 

Speaking for the Title IX office, Frankl tried to assuage such concerns when brought up. “We’re here for everybody,” Frankl said. She said that she does not want a community member to “silently suffer, or not get the support and resources that [they] need,” simply because they fear that the Title IX office will no longer handle the types of behaviors that they aim to report.

Maya Roberts ’23 said that “it feels like the school is still going to fight for our rights” because it will have its own policies in addition to Title IX.

Hahm raised some questions, however, about the extent to which the college will support students on this issue. She compared the Title IX changes to the move that the Trump administration made this past summer to prohibit some international students from returning to campus: “Amherst said that they weren’t going to listen, they were going to stand against that, but in this situation they aren’t … and that bothers me.”

The Covid context changes the way in which these policy changes are impacting Amherst and other institutions nationwide, but Frankl and Hahm highlighted the continued importance of appropriately addressing reports of sexual harassment during this time. Hahm noted that “it’s inevitable” that these reports will continue to happen during the pandemic. 

Frankl again emphasized the continued availability of Title IX resources, saying “I think it’s important for the community to know that just because we’re remote … we’re here for everybody. There’s simply nothing about this virtual world or having half of our college population remote learning that interferes with the Title IX office’s ability, willingness, want to engage with the community, to support the community, to receive reports, etc.” 

The college is equipped to conduct hearings over Zoom if necessary to adapt to the current conditions, according to Frankl.

In the coming weeks, the Title IX office will convene its review committee and start planning listening sessions with the community as it works to develop finalized policies.