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New Title IX regulations may affect sexual assault procedures

November 30, 2018

On November 16, United States Secretary of Education Betsy DeVos proposed regulations to Title IX to provide a new framework for interpreting the federal civil rights law that prohibits gender discrimination in all schools receiving federal funding. Changes to this law, which guides the College’s handling of sexual assault cases, could prompt Bowdoin to reshape its policies concerning sexual misconduct.

Under the new regulations, students accused of sexual misconduct would receive greater protection and colleges investigating complaints may face reduced liability. The Obama Administration defined harassment as “unwelcome conduct of a sexual nature,” but according to the draft, the changes would narrow the definition to incidents “so severe, pervasive, and objectively offensive” that they deny access to education.

Additionally, the changes would exclude incidents occurring outside a school “program or activity” from behavior prohibited under Title IX, which some experts warn could prevent off-campus behavior from being considered in investigations.

The draft would also allow a “clear and convincing” standard of proof to make determinations in investigations, which is higher than the Obama administration’s Title IX guidance mandating that colleges use the “preponderance of evidence” standard of proof, though still lower than the criminal standard of “beyond a reasonable doubt.”

Bowdoin currently uses the preponderance of evidence standard, which requires enough evidence that it is more likely than not that sexual misconduct occurred.

Benje Douglas, the director of gender violence prevention and education, noted that the draft released earlier this month is not yet binding. Before federal regulations are officially finalized, the Department of Education will field public comments for 60 days.

In an email to the Bowdoin community, President Clayton Rose said that Douglas will host an open session on Tuesday to allow students and faculty members to “discuss our current Title IX policy” and raise concerns and questions over the unclear implications for many of the provisions in the proposed changes.

Although Douglas is hesitant to comment on how the Education Department’s proposed rules will impact Bowdoin’s current policies and procedures, he is particularly wary of the proposed requirement of cross-examinations during hearings, saying this requirement could “fundamentally change the way institutions deal with sexual assault.” This change would allow complainants and respondents in Title IX proceedings to be questioned by the other side in a live hearing—something that has raised concerns about the potential to retraumatize the complainant.

Until a finalized version of Title IX is implemented, Bowdoin will continue to operate under its current policies for handling sexual misconduct cases while reviewing how the proposed Title IX regulations from the U.S. Department of Education could affect the College.

Currently, Bowdoin’s policies for addressing reports and accusations of sexual assault have the goals of ensuring due process and of being fundamentally fair for all parties. There are two routes for a student to file a Title IX complaint at Bowdoin: an alternative resolution or a formal investigation.

According to Douglas, an alternative resolution is a “different way [of] dealing with the complaint. It’s not a way to have a person removed from campus, but rather to create some space between an individual and another person.”

When an individual submits a complaint, the Office of Gender Violence Prevention creates a list of protective measures that are meant to keep both parties away from each other, some of which include “no contact orders” or changes to class schedules, work schedules and living arrangements.

“The respondent can appeal if they believe their protective measure is not something they personally want to deal with,” Douglas said. “But if they agree to the alternative resolution, they will be able to remain a student at Bowdoin while managing through all the protective measures.”

In the event of a formal investigation, the outcome is not predetermined and the process ensures the elimination of bias toward or against a student, according to Douglas. In a formal investigation, Bowdoin hires external investigators to conduct fact-finding.

“These investigators decide whether our policies have been violated,” Douglas said. “They will interview the complainant, the respondent and witnesses.”

Afterwards, the case is sent to the sexual misconduct panel, which is composed of three individuals: a student member of the Judicial Board, a faculty member and either the Dean of Students or a member the Dean designates, who acts as the chair. Together, after the independent investigator has decided whether the accused should be found responsible, the three decide, if applicable, what an appropriate sanction would be.

According to Douglas, both parties have the right to an advisor, which could take the form of an attorney who helps walk the individual through the process and answers questions they may have. Additionally, both sides have the right to review what they’ve said to the investigator and any notes the investigator made, as well as the right to view the preliminary report and appeal the results.

Although the College will likely retain many of its current procedures, it remains to be seen which provisions of DeVos’ proposed guidelines will be implemented at Bowdoin and how they will affect the community.

Despite this uncertainty, Rose said in an email that “whatever changes may occur, they will not alter our fundamental principle that sexual and gender-based violence, sexual misconduct, and sexual harassment will not be tolerated at Bowdoin … We remain committed to an adjudication process that is transparent, rigorous, and fair for all parties, and one that reflects our values as a learning community.”

Editor’s Note, 11/30/2018 at 4:08 p.m.: This article has been updated to correct an error about the role of the sexual misconduct panel. The panel does not decide whether an accused party should be found responsible of sexual misconduct; rather, they decide on a sanction if the independent investigator has already found the accused to be responsible. 


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