On the evening of May 10, Benje Douglas, director of Title IX and compliance, held a virtual town hall via Zoom for members of the College community to discuss how the newly announced and highly controversial Title IX regulations will impact Bowdoin. The town hall followed a campus-wide email President Clayton Rose sent to students and employees on May 6, in which he wrote that, while Bowdoin “will, of course, follow the law, we will always seek to do so in ways that reflect our values and that provide a process for dealing with these matters that is fair, rigorous, and transparent.”
Bowdoin’s website defines Title IX, a federal civil rights law that was passed in 1972, as “an anti-discriminatory federal regulation that prohibits any type of gender-based discrimination in educational settings.” The website explains that Bowdoin “provides support and services for instances including, but not limited to: sexual misconduct, gender based violence, harassment, stalking, intimate partner/relationship violence, and unequal opportunities based on gender.”
The new regulations, which were released by the Department of Education on May 6, will be legally binding and are set to go into effect on August 14. They follow a 2017 announcement by United States Secretary of Education Betsy DeVos rescinding Obama-era Title IX guidance, which defined sexual assault broadly and advocated against the use of cross-examination and mediation between complainants—defined by Bowdoin as “the individual who alleges that sexual misconduct or gender-based violence has been committed against them or against another individual”—and respondents—defined by Bowdoin as “the individual student who is alleged to have committed one or more acts of sexual misconduct or gender-based violence.”
In his opening remarks during the town hall, Douglas emphasized transparency and the importance of feedback from community members throughout the new Title IX implementation process.
“This is a discussion about the Title IX … regulation changes that happened this past week with a goal of answering questions that individuals have, putting into context the timeline we have for implementation on campus and populating some concerns that students, faculty and staff have to keep in mind as we plan for the future,” Douglas said at the start of the town hall.
“In 2001, 2011, 2014, 2017 and ultimately 2020, the Department of Education has provided guidance on how schools should respond to sexual harassment,” Douglas added. “But this is the first time we’ve actually seen any specific rules.”
Douglas outlined three broad changes Bowdoin would make in order to comply with the new regulations. The first is its definition of sexual harassment, which currently encompasses any and all “unwelcome conduct of a sexual nature.” After August 14, this definition will only include “unwelcome conduct of a sexual nature” that is “severe and pervasive.” Douglas implied, however, that Bowdoin would likely be able to use other measures to enforce its current standards for student conduct no longer covered by the new Title IX regulations.
“This is actually a definition that we have to use for sexual harassment. This has been dictated by the Department of Education,” Douglas said during the town hall. “That doesn’t mean that other behaviors will not be responded to using the social code or other elements that are at our disposal.”
The second major change Douglas identified during the town hall impacts Bowdoin’s formal resolution process, which currently involves an investigation into allegations of sexual misconduct and can have results including, but not limited to, social probation, suspension or permanent dismissal from the College for the respondent.
“Our formal resolution process will have to change from an investigator-only model … to a hearing model, meaning that we have to bring forward every formal investigation that goes the full length … to a panel or a live hearing,” Douglas said during the town hall. “There’s some ambiguity about what that has to look like, but we know it needs to be in person—or, in this case, obviously, electronic—and that we need to have some sort of hearing officer or panel that’s been well-trained. And, as a result, we need to make sure we’re allowing in-person cross examinations.”
The cross-examination requirement is one of the new Title IX’s more controversial elements, the proposals for which were initially released in November 2018. These elicited widespread alarm; more than 120,000 public comments were submitted, including by Bowdoin and other institutions. Seemingly in response to these concerns, the initial cross-examination requirement, which would have allowed students involved in the case to cross-examine one another, was changed to only allow lawyers and advisers to cross-examine the complainant and respondent. In addition, the complainant and respondent can opt to participate virtually from separate rooms.
Still, this is a marked change for many institutions, including Bowdoin, which have not, in accordance with the recommendations of victim rights’ advocates, historically held live hearings.
“Again, that’s something that we have some flexibility of how we choose to do it,” Douglas said during the town hall. “But it is a requirement that we have to have a hearing process in order to deal with any sorts of formal investigations of sexual misconduct.”
During the town hall, Douglas explained that the new rules also allow for mediation during the formal resolution process, provided that a certain set of conditions are met, including that both the complainant and the respondent voluntarily agree to participate. Douglas explained that this form of mediation is not in accordance with Bowdoin’s existing approach to resolution.
“We’re not super excited about the idea of putting people in a room together who have had some sort of a traumatic experience that relates to the complaints that are filed,” he said. “However, we have used an alternative resolution model—shuttle diplomacy and other things like that—borrowing some skills from other dispute resolution programming, and I think that will just increase in the future.”
Bowdoin’s alternative resolution process does not require an investigation, and it allows the complainant to “communicate their feelings and perceptions, including the impact of the incident of the alleged sexual misconduct or gender-based violence, to the respondent, in the presence of and facilitated by a presiding officer.” The complainant and respondent are not brought together in person during this process, and it is possible for the exchange to take place entirely in writing. Potential outcomes include protective orders, which can involve “accommodations to living, academic, or employment situations; limitations of contact between the parties; and required counseling for the respondent.” In a phone call with the Orient, Douglas further emphasized that the new Title IX rules will not impact Bowdoin’s alternative resolution process.
The third major adjustment the College will have to make involves the amount and kind of information shared with the complainant, the respondent and the College community. This is a particularly complicated requirement for Bowdoin, which, due to its size and small number of annual formal investigations, finds preserving confidentiality slightly more difficult than larger schools may.
“Basically the big change is going to be that we’re going to need to offer additional information about how we do the work, how we were trained to do the work and what that looks like,” Douglas said during the town hall. “Transparency is something we take very seriously at Bowdoin, [but] we also want to protect the privacy of the individuals involved.”
Douglas also explained that the regulations could be changed or appealed. He said that multiple advocacy organizations have already sued the Department of Education and the federal government and he predicts that more organizations would do so by the end of May. He then said that a change in the presidential administration—pending the results of the upcoming November election—or lawsuits from individual schools on financial grounds could ultimately prevent the regulations from taking effect or lead to them being rescinded or repealed.
“Those are the three avenues that I think could be used to change things,” he said during the town hall. “I think, realistically, nothing is going to happen before August 14.”
Both during the town hall and in a follow-up phone conversation with the Orient, Douglas urged members of the Bowdoin community to reach out to the Office of Gender Violence Prevention and Education staff with any comments, questions or concerns they have about the implementation process. He emphasized that there will be changes in the information available and Bowdoin’s approach to implementation in the coming weeks, months and years.
“I just have to be clear that everything that we create now is a draft and that it can be refined and made better,” he said in a phone call with the Orient. “Whatever we come up with and put into place August 14 is going to be something that is with our best intentions and with the best information we have on hand, but that is not locked in for the next decade. It can be shaped and formed as necessary to make it … more directly fit into the way the community is growing and developing.”