*The following information contains language that some may find triggering, as it pertains to the recent changes to Title IX. The following resources were collected from Know Your IX, the U.S. Department of Education Title IX Final Rule Overview, and the California State Student Association. Please visit Safer for Cal Poly’s primary confidential resource for addressing sexual assault, intimate partner violence, domestic violence, stalking, sexual exploitation, and harassment. Counseling services are available virtually for Cal Poly students 24 hours a day, seven days a week, by calling 805-756-2511. The Employee Assistance Program (EAP) provides confidential counseling services to all Cal Poly employees and their families. Please call their 24-hour support hotline at 800-367-7474.
The U.S. Department of Education has issued final rules that regulate how colleges and universities must handle reports of sexual assault and harassment under Title IX. The decision to release these rule changes during a global pandemic fails to be compassionate in a time when survivors need our support. We want to express the continued support of our students, faculty, and staff who are navigating COVID-19 amidst this announcement.
Title IX of the Education Amendments states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Under Title IX, schools are legally required to work to restore hostile environments or else risk losing their federal funding.
First and foremost, we believe survivors. We will continue to fight for survivors’ rights. The new regulations work to reduce reporting, save money, and fail to punish schools that ignore sexual violence on campus. The CSU is currently evaluating the rules and the expected effects on our internal complaint resolution processes. The rules require implementation by Aug. 14, 2020; however, it is possible the rules will be challenged in court which could delay implementation. To review the new federal rules, visit the Department of Education. Overall, the changes favor perpetrators of gender-based violence and place a much larger burden on survivors. As we adapt to these changes, subject matter experts and advocates should be at the center of these efforts. Here are some of the key provisions of the Department of Education’s new Title IX regulation that you should be aware of:
- Violence that occurs in off-campus housing or at study abroad programs will not be considered the schools’ responsibility. This allows schools to ignore violence happening off-campus, even if the survivor must see the perpetrator at school every day.
- “…[schools] do not have a Title IX duty to address alleged misconduct that occurs off campus” (Department of Education Title IX Regulations. pg. 613).
- Cases under Title IX will require cross-examination. This means that a survivor can be directly questioned by a representative for the perpetrator.
- “With respect to testing the credibility of testimony via cross-examination, the party must do this by selecting an advisor of choice… questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless… the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent” (Department of Education Title IX Regulations. Pg. 1143, footnote 1019).
- Schools will have the flexibility to choose which evidentiary standard to use: “preponderance of evidence” or “clear and convincing evidence”.
- “Must be either the preponderance of the evidence standard or the clear and convincing evidence standard” (Department of Education Title IX Regulations. Pg. 99).
- Perpetrators will be given written assurance that they are presumed innocent. Schools may not impose any disciplinary actions on students accused of misconduct until the end of the case, though they are able to remove students from campus if it is believed that the student poses a risk.
- “Respondents to face disciplinary sanctions only after a fair process determines responsibility” (Department of Education Title IX Regulations. Pg. 96).
- The 60-day timeline for Title IX cases will be lifted, allowing schools to lawfully extend investigations, drawing them out for months or years.
- “Rather, the [school] may select time frames under which the [school] is confident it can conclude the grievance process in most situations” (Department of Education Title IX Regulations. pg. 890).
- Schools may use unregulated and informal resolution processes, such as mediation, instead of investigating.
- “Allows recipients to offer and facilitate informal resolution processes, within certain parameters to ensure such informal resolution only occurs with the voluntary, written consent of both parties; informal resolution is not permitted to resolve allegations that an employee sexually harassed a student” (Department of Education Title IX Regulations. Pg. 99).
- There is a heightened standard of harassment meaning that schools are no longer obligated to investigate cases that don’t meet the new requirements.
- “The Department believes that… regulation of speech to prohibit sexual harassment, is best addressed through rules that prohibit harassing and assaultive physical conduct, while ensuring that harassment in the form of speech and expression is evaluated for severity, pervasiveness, objective offensiveness, and denial of equal access to education” (Department of Education Title IX Regulations. Pg. 505).
For clarification, the rates of false accusations of sexual assault are the same as false accusations for other categories of crime. The premise that perpetrators are falsely accused of sexual assault at high rates is false. The California State Student Association approved a resolution opposing the proposed Title IX policy changes before they were finalized. They called upon the chancellor’s office to file a lawsuit against the new Title IX policy and push for student consultation to be implemented in the steps leading to the future system of the Title IX policy. ASI Student Government stands in solidarity with the statement put forward by our CSU peers. We are working in conjunction with university-wide efforts to ensure the campus will support survivors despite the policies put forth by the Department of Education.
We must believe survivors. ASI is looking into efforts that are working to create a more clear and empathetic process for survivors, such as supporting SB 493. We will share more information regarding calls to action for students in the future.
Despite these changes, we want to remind everyone that student activists, initially led by Annie Clark and Andrea Pino, pushed for Title IX to be used for addressing campus sexual assault cases. Survivor rights will continue to be a long fight, but we are here to support students through it. Student Government is committed to continuing to work with the Office of Equal Opportunity and Safer as our campus responds to the regulations. Email firstname.lastname@example.org for questions or to get involved.