In response to a proposal by the U.S. Department of Education to alter regulations regarding the implementation of Title IX, the Bowdoin administration submitted its comments to the federal government on January 14.
The Department of Education is accepting comments until Monday, January 28, which marks the end of a 60-day comment period. The agency is required to review all submitted comments and may amend the proposal or terminate the rule-making process depending on comments, data and expert opinions. If the proposed rule goes into effect without major changes, Bowdoin and other colleges may have to significantly amend their handling of sexual misconduct cases.
The new regulations had been proposed two months earlier and amended requirements for the processes by which colleges and universities respond to sexual misconduct allegations. The changes to the rules, which purport to ensure “due process protections” for students accused of sexual assault or harassment, include an increased standard of proof to find a student responsible and significantly amend the requirements for sexual harassment investigatory and judicial processes conducted by institutions.
Bowdoin’s comments on the proposed changes highlight a wide range of “serious concerns,” stating the administration’s belief that the rules “do not provide a fundamentally fair process, nor do they assist institutions in effectively confronting sexual misconduct.” The complete document of comments, stretching over eight pages, was the result of work on the part of Director of Gender Violence Prevention and Education Benje Douglas, Dean of Student Affairs Tim Foster, Dean of Students Janet Lohmann and Assistant Dean for Community Standards Kate O’Grady.
The report dedicates three pages to the predicted “chilling” effect of the proposed rules. The authors of the document cite concerns that the prospects of facing a live trial would almost certainly deter students from reporting a case of sexual misconduct.
According to the College’s response, the comments contended that the proposed new definition of actionable sexual harassment, as well as the decreased protections of complainant confidentiality, would “dramatically minimize the reporting of instances of sexual harassment and other sexual misconduct that occur on campuses throughout the country.”
An increased financial burden and liability would be incurred by educational institutions if the proposed changes were to take effect, says the report, requesting that the Department of Education “reconsider the requirement to provide an advisor to perform cross-examination if a party does not have one.”
According to the comments, such a requirement—which essentially asks that institutions retain a staff of professionals with legal training to act as attorneys for both parties during a live trial—would impose an undue burden upon colleges and universities.
Students are welcome to write and submit their own comments to the Department of Education. Some have expressed concerns similar to those mentioned in Bowdoin’s comments, particularly about the potential minimization of reporting.
“[A person bringing a complaint] could be questioned by an attorney from the other side, who can attack everything up to a person’s credibility,” said Jenna Scott ’19, a leader of fEMPOWER and one of the students who met with Douglas about Bowdoin’s response to the proposed rules. “My concern would be that we would get less reporting from having that in the rules.”
Scott commended the authors of Bowdoin’s comments for their hard work and commitment to fairness. She particularly praised the College’s proposed solution in lieu of the requirement for cross-examination, which she took issue with. The College suggested that instead of cross-examination during a live trial, parties should “submit written questions to an investigator or decision-maker who, after determining relevant questions, would pose those questions to another party or witness.”
Scott explained that such a process would be far more sensitive to both parties. She is working on articulating her own comments on the proposal, which must conform to a strict format as mandated by the Department of Education.
Maxx Byron ’19, who is in charge of the sex project, voiced similar unease.
“The cross-examination, especially, seems heinous. I can’t imagine having to go through that,” Byron said. He explained that the investigative and judicial process should be sensitive to the needs of students who may already be facing emotional trauma due to harassment or an assault. “It should be … a smooth, comfortable process—as comfortable as it can be.”
Byron thinks that many Bowdoin students are concerned about the proposed changes.
“The Brett Kavanaugh walkout was, in my four years, the largest protest Bowdoin has done, and a lot of my professors have said the very same thing,” he said, noting that the current class of first years seems to be particularly inspired.
Scott is cautiously optimistic that the Department of Education will consider the comments submitted by Bowdoin and similar institutions.
“Bowdoin has really good name recognition and so hopefully the Department of Education will look at that,” she said. “I just hope that someone is actually going to listen.”