By: Nicholas Ashenfelter
It is no secret that there have been recent changes to the Title IX regulations, but there is some uncertainty over what exactly these changes entail. On August 28, Michael Dunn, the Director of Title IX Compliance and Training, and Helen Ann Lawless, the Title IX Investigator/Prevention Specialist hosted a Title IX Community Meeting via Zoom. Here they were able to shed some light on the details of the new policies at St. Mary’s College of Maryland (SMCM) and across the country. These regulations were released on May 6 of this year and implemented on Aug. 14.
President Donald Trump’s administration put the 2020 guidelines into effect by changing the federal regulations surrounding Title IX. The previous administration had simply suggested guidelines through the use of a “Dear Colleague” letter. The key difference here is permanence. If a future leader wishes to challenge these regulations, they will have to go through the same process as the Trump administration. This includes a “notice and comment” period, in which every single criticism must be considered. In this case, there were over 124,000 criticisms.
These new regulations primarily slimmed down what was covered by the Title IX rules, including “narrowing the definition of sexual harassment,” as reported by Lawless. The Department of Education (ED) defines sexual harassment as “any instance of quid pro quo harassment by a school’s employee; any unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access; and any instance of sexual assault […], dating violence, domestic violence, or stalking.”
Under the previous guidelines, SMCM would pursue action for students who were victims of sexual violence off school grounds; however, the new regulations do not require enforcement of this– only “at houses owned or under the control of school-sanctioned fraternities and sororities,” as explained by the ED. Mandatory reporters are similarly fewer in number. Dunn reported that the text now reads that “officials with authority” must report events, a far cry from the previous guidelines that included everyone from the SMCM President to Orientation Leaders. Dunn said the ED’s motivation for these changes was an effort to “correct the pendulum that Obama swung” based on their concerns that too little emphasis was placed on the rights of the accused.
Before anyone begins jotting these new rules down, it is worth noting that Lawless and Dunn are doing their best to preserve the old guidelines, while respecting the new regulations. The wording is that schools “may” act as outlined; despite the force of law behind these regulations, there is a degree of freedom in their application. Dunn and Lawless expressed concern that changes to legislation could come with every new administration, which could lead to confusion on the nature of Title IX policies. To remedy this, they intend to keep as much as possible about Title IX the same from year to year, no matter who enters the Oval Office. Another consistency worth noting is that “the definition of consent is unchanged” by the new regulations– a point emphasized by both Dunn and Lawless.
One major procedural change for SMCM is what happens after a report is filed. Under the old regulations, for a formal investigation, Lawless and one other staff member would conduct an investigation to determine if there was evidence of a policy violation. Under the new regulations, both accuser and accused are allowed “an advisor, and the right to submit, challenge, and cross-examine evidence at a live hearing”–a substantial change from the old guidelines. In anticipation of potential emotional strain, the new regulations also “[shield] survivors from having to come face-to-face with the accused during a hearing and from answering questions posed personally by the accused.”
In addition to the ED’s requirements, SMCM and the state of Maryland have both provided assistance for students. Schools are permitted “to conduct Title IX investigations and hearings remotely,” as stated by the ED, so SMCM is prepared to run hearings, including cross-examinations, over Zoom. This way, accusers and the accused do not have to be in the same room. Maryland has stepped up to ease the financial burden by providing funds to help obtain legal counsel. This will ensure all students can be fairly represented, regardless of income. Most importantly, survivors can always elect to avoid the formal investigation process.
Dunn expressed regret that the time frame before implementation of these regulations “didn’t allow for more student or community response,” and said that he wants feedback, which students and faculty may provide through email. So far, Dunn and Lawless have had two community meetings in May and two in August, and hope to have more as the year continues. In addition, one can contact individual members of staff as well as read the Title IX information at mailto:email@example.com or read the new Title IX information on the website at https://www.smcm.edu/title-ix/. As SMCM gets used to the Title IX changes, Dunn has only one piece of advice– “stay tuned and buckle up!”