Posted November 21st, 2018.
Some student activists are planning to fight back against Education Secretary Betsy Devos’ proposed rules for how colleges handle complaints of sexual assault and harassment. The new regulations would be an amendment to Title IX, which protects students from sex-based discrimination and provides colleges with guidelines on how to handle sexual assault claims.
Critics argue the proposed changes protect institutions and harm survivors by narrowing the definition of sexual assault, requiring cross-examinations and letting schools have nearly free reign in how they address assault cases, among other aspects.
Anja Chivukula, a sophomore at Columbia University and a student activist, plans to challenge the proposed regulations. Since the start of her freshman year, she has worked on the board of No Red Tape, a campus organization that pushes for campus policies that ensure the safety and well-being of sexual assault survivors. She said the proposed rules threaten her personal safety as well as the safety of other students, starting with the narrowed definition of sexual harassment.
Title IX currently defines sexual harassment as unwelcome conduct of a sexual nature. But the proposed regulations define sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”
Chivukula said “the federal government has endorsed a standard which deems some forms of sexual misconduct to no longer be sexual misconduct. And to know that the university may in some ways abide by that standard doesn’t make me feel that safe. It’s almost like giving carte blanche to people who would perpetuate that type of sexual harassment.”
She said the most problematic aspect of Devos’ proposal is that schools are not required to investigate student assault cases that occur off campus. “Just on a practical level, many students live off campus … so many assaults take place off campus,” Chivukula said.
Aside from living off campus, many students are required to attend off-campus events, said Vassiki Chauhan, a graduate student at Dartmouth.
She said she was personally victimized in that kind of setting: she alleges she was raped by former professor Paul Whalen last April when he asked her to meet for drinks.
She and six other students have since filed a lawsuit against Dartmouth because they believe the school mishandled years of ongoing sexual assault claims against Whalen and other professors.
“In our case, some of the most atrocious acts were committed during out-of-state conferences, which are events that sexual harassers treat as hunting grounds,” Chauhan said. “Does the new regulation expect women to cower on campus rather than seeking opportunities to further their careers nationally and internationally?”
Chauhan’s lawyer, Deborah Marcuse, said the proposed regulations allow schools to evade their responsibility to protect students.
“Cases like ours are not about a few bad apples tainting a righteous institutional landscape,” Marcuse said. “Rather, they are about institutional cultures that foster gender discrimination and sexual misconduct instead of equality and educational opportunity for women.”
“These regulations tend to favor institutional interests over the rights of any individuals, victims or accused — this is what is most troubling to me,” Marcuse said.
Schools would also have less responsibility in responding to on-campus assaults, according to activists. The new rules say campus administrators could respond in any way that is not “deliberately indifferent.”
Columbia’s Chivukula said the regulation should mandate schools to do whatever they can to help survivors, instead of allowing schools to do anything above nothing. She also said the lack of accountability for schools creates an “uphill battle” for sexual assault survivor advocacy groups.
“It’s frustrating to know that the federal government can enstate these kind of changes and there is nothing I can do about it, except fight it at my local school,” Chivukula said.
Clarissa Brooks, a campus organizer for Know Your IX and regional adviser for It’s On Us at Spelman College, believes the new regulations put students in danger and can lead to prolonged investigations.
During the possibly prolonged investigations, the accused would be allowed to cross-examination the accuser in campus hearings, as well as review and respond to all evidence. Brooks said she has seen evidence that includes things like financial records, text messages, or physical evidence of assault. She stressed that handing these over to the assailant places more trauma on the survivor.
“It also gives the assailant access to your friends’ phone numbers, your family’s phone numbers — it’s just unsafe,” she said.
Chivukula said that one positive thing that can come from the regulation is the ability to resolve a formal complaint informally. An “informal resolution process” can be achieved through, for example, mediation that doesn’t involve a full investigation, according to the proposed rules. Previously, a formal complaint of “broadly defined sexual harassment” could not be resolved through informal resolution, according to Chivukula.
“But the worry is that education institutions might have motive to nudge survivors towards [informal resolutions],” she added.
Supporters, however, said the regulations are a positive step in protecting people from being accused unfairly.
“Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined,” Secretary Devos said in a statement. “We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process.”
Justin Dillon, who has represented dozens of accused students and is a partner at the law firm KaiserDillon, said, “There is no better way to test the truthfulness of an accusation than by questioning the accuser during a live hearing.”
“If colleges are going to adjudicate what are essentially crimes, then accused students deserve to have the tools to defend themselves effectively,” he told The New York Times.
Some activists, however, argue Devos is proposing a process that is anything but fair.
“There were issues with Title IX before Devos got there,” Brooks said. “Now we have to not only deal with those issues, but we are being pushed back even further. It’s like we took one step forward to take ten steps back.”