NAPLES, Fla. – Amid a national conversation about sexual harassment in the entertainment industry, guidance to how college and university campuses investigate these issues has some fearing for victim safety.
Last month, Secretary of Education Betsy Devos issued new guidance to schools on how their Title IX office should investigate complaints of sexual misconduct.
Democrats in Washington responded by filing a bill seeking to undo this guidance and mandate rules set up during the Obama administration.
The new guidance, reminds schools not to forget about due process to the students accused in complaints and opens the door for them to use a higher standard of evidence in conducting investigations.
According to the Foundation for Individual Rights in Education, nearly 200 lawsuits have been filed in the last several years against colleges and universities by students who felt they were not given a chance to properly defend themselves against Title IX complaints.
But, the guidance is seen by some as a rollback of expanded protections for alleged victims of sexual harassment and violence on campus.
“My major concern is that these investigations will not be conducted in a timely manner, that victims will be forced to be on campus with their accused attackers or harassers,” said Adria Silva, a Naples attorney who has represented student victims and well as accused students against their schools.
EVOLUTION OF TITLE IX
Title IX was established in the 1970’s to assure that campuses were free of gender discrimination in athletics and academics. The Clinton Administration revised it in 1997, to define sexual harassment as a form of gender discrimination.
In 2001, during the Bush administration, the guidance was further tweaked.
Part of it instructed schools to protect alleged victims during an investigation by changing class schedules or removing suspected harassers from dorms.
It also discussed court rulings that established the extent to which an allegation had to be proven before a school should take more permanent steps to eliminate the problem.
Then during the Obama-era in 2011, a “Dear Colleague” letter spelled it more clearly rather than just referencing case law.
Schools were reminded to use what’s known as a ‘preponderance of evidence’ standard, meaning the event ‘more than likely occurred’. In 2014, the department of education issued “questions and answers” on the 2011 guidance in hopes of further clarify what schools should be doing to minimize risks on campus.
PENDULUM SWINGING TOO FAR?
Some say the Obama-era guidance overstepped the due process rights of accused students.
Patricia Hamill, an attorney who has represented several accused students, identifies herself as a mother and a feminist who looks at this issue like a lawyer.
“I don’t think it does victims of sexual assault any good to have processes that people perceive to be unfair to respondent students, you want integrity in the process for everybody,” said said.
Hamill is representing a student against Brandeis University in New England.
DOCUMENT: See Brandeis complaint here
The suit involves two male students who were in a consensual homosexual relationship for 21 months. After the breakup, the boyfriend of Hamill’s client complained to the Title IX office that portions of their sexual relationship were unwanted.
Hamill said an outside investigator looked into the complaint and concluded her client was responsible for sexual misconduct, but he had never been aware of what he was specifically accused of doing wrong.
“When she asked him, would you wake your boyfriend with kisses in the morning, he answered ‘yes’ and was found to have taken advantage of the incapacitated state of sleep,” she said.
When Brandies motioned to dismiss the case, a judge ruled against it. In an 89 page order, he points out that the school had changed its process after 2011 to remove a variety of protections to accused students.
DOCUMENT: Brandeis – Judges order to dismiss
Besides a concern for lengthy investigations, victims’ advocates are also wary about a different evidentiary standard.
The 2017 guidance now allows schools to choose between the preponderance of evidence standard and a higher “clear and convincing” standard.
Silva said this standard does not match case law and fears it will cause confusion for schools. But Hamill said she feels most schools will continue to use the preponderance standard.
“There would be on many college campuses be a hue and cry if you went to a clear and convincing standard,” she said.
Both Florida Gulf Coast University and Florida Southwestern College said their Title IX offices continue to use the preponderance of evidence standard.