By Amelia Leaphart
As of August 2020, K-12 schools and universities have to comply with a new Title IX policy under Betsy Devos’ Department of Education. Modifications include a narrowed definition of sex discrimination to only include forms of sexual harassment (before, it included all forms of sex discrimination) and denial of requests that do not meet Title IX’s definition of sexual harassment.
Furthermore, individuals involved in the case must see and hear each other and be cross-examined, and informal processes are now allowed in all cases (before, informal processes were allowed except for sexual assault cases). All cases for students and employees are subject to the same process now.
Dr. Sylvia Gray, Sewanee’s Title IX coordinator, oversees Title IX law appliances within the university. She highlights a notable language change within the document: “The language used to be that the behavior had to be severe or pervasive. ‘Or’ was the big word. Now it has to be severe and pervasive, which is really difficult. If the behavior is sexual harassment, but it’s not severe and pervasive and objectively offensive, even if it’s true, I’m still not allowed to investigate it.”
Pressley Wilson (C’22) is a resident at the Bairnwick Women’s Center (the Wick) and the University’s peer support system, which means she rotates on their hotline, and additionally runs their social media accounts and internal communications. Title IX affects the “on-call” policy, and Wick residents work closely with Dr. Gray.
Wilson said that when Dr. Gray explained the changes to the residents, she said that anything they think is Title IX related can still be reported to her, but if it fails to fall under Title IX, she will send the incident to a different resource.
Gray also highlighted how the previous administration’s Title IX rule gave the University more flexibility in regard to hearings, as it did not specify how hearings were meant to proceed.
“Universities across the nation were able to say in our hearings, ‘We don’t have to make [the parties] see each other. We’re not going to allow any cross examination. We’re gonna let that person just talk to us, without live-recording,” Gray said.
Now, the rules regarding the hearings are more prescriptive. The parties have to see each other face-to-face and must be subject to cross examination. Both parties can also have an advisor, which can be whoever the victim and accused choose.
“It could be someone toxic to the situation. It could be a witness in the situation. That may be favorable to some people, but for others it could be quite traumatic,” Gray said.
Many universities see this amendment as a conflict of interest. Gray also highlights how prescriptive language may stifle care and support universities often want to provide to both parties.
Gray said, “We’re going to have to be creative with including some of the same caring language, regardless of what seat you sit in. Like, ‘Hey, we’re disappointed about the behavior that’s occurred here. Here’s what you need to do, whether someone is being expelled or suspended. We may not get to do those learning opportunities we might have before.”
Before these new regulations, every school and university could have a different policy. Many of these policy deviations were influenced by the type of school (for example, religious institutions, same-sex schools, community colleges, etc). Now, every school’s policy in the United States is the same. Any alterations schools want to make to their sex discrimination policy would need to be made in their conduct code.
Another significant change stipulates that if the victim decides not to participate in the case and drops the charges, the case disintegrates. Before, schools could follow through on the case without the accuser’s participation to ensure “there’s no funny business or sweeping things under the rug,” Gray said.
“Some victims or accused parties might feel better by this, but institutions like to see cases all the way to the end in order to clear a name or ensure that they can hold people accountable,” Gray said.
Gray also highlighted that a victims’ full participation in a case is not always crucial for building a case. However, the requirement for cross-examination and language constrictions allows cases to be fully dismissed.
Gray refrained from expressing her personal opinions about the changes.
“My role, regardless of my personal opinion, is to make sure compliance is fundamentally fair. If I rely on my personal opinion during proceedings, I could come across as biased, and I need to check that at the door every moment of the day,” Gray said.
“I don’t think these changes affect my role as a resident or doing peer support,” Wilson said, “because resources are still available. I also know that within the school, now mandatory reporters are no longer required, but Sewanee has chosen to make faculty and staff mandated reporters even though it’s not required.”
Sara Brandenburg (C’22), a resident at the Wick and a member of the Title IX committee, says that while changes to Title IX does not drastically affect their position, it does change processes they need to go through when reporting. “[The changes] are definitely more intense with survivors’ ability to heal from trauma during proceedings. Now, you have to see the accused while giving their testimony,” Brandenburg said.
However, Gray points out that during online proceedings, the victim can cover their screen. They will still be seen by the accused.
Reporting incidents remain the same. At Sewanee, the most efficient way to report is through the Wick website.
“But from there, the definition about what goes under Title IX now is much more specific and thin than before. If it doesn’t fall under the definition, [Dr. Gray] may refer you to another office. It’s going to be much harder to have a case under Title IX,” Brandenburg said.
Brandenburg suggested for students to look at the university’s Title IX policy and look at the definitions.
“They are very confusing and specifically worded, so there are ways for the accused to find loopholes in the situation,” Brandenburg said.
Brandenburg emphasized that reporting remains important, no matter whether one’s case falls under Title IX. She highlights the strong community of students, faculty, and staff who care about these processes.
“I’m personally really angry about these changes,” Brandenburg said, “I feel very emotionally frustrated about it. As somebody who lives at the Wick, I learn more about the statistics about sexual health at Sewanee, but I also see it first hand as a student. I love being an ally for people, and being able to fight for people to report and have resources. It’s frustrating that there’s these new forms of red tape. But I’m still hopeful we can push through this.”