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« Title IX Approaches the Bench: Cross-Examination in Sexual Misconduct Hearings | Main | Educational System Unprepared to Accommodate Unaccompanied Migrant Children »

Revocation of the 2011 Dear Colleague Letter: Who was it protecting?

In the era of #MeToo, the public is more aware than ever about sexual violence; but what about college campuses? Approximately 13,224,000 women will be attending degree-granting institutions in the United States (U.S.) in the fall of 2019.  At a time when college women are three times as likely to experience sexual violence, and only a small percentage are reporting these incidents to authorities due to embarrassment, concern it was not significant, or it would not be investigated or taken seriously, all students need a safe and equitable environment to live and learn.  How do college campuses balance these responsibilities?    

The higher education community is still waiting for final guidance from the U.S. Department of Education Office for Civil Rights (OCR) on campus sexual misconduct. Despite Executive Order 13777 garnering 16,376 public comments, of which 99% supported Title IX and 97% supported upholding the 2011 Dear Colleague Letter on Sexual Violence, OCR published a Dear Colleague Letter on September 22, 2017, withdrawing the 2011 Dear Colleague Letter and 2014 Questions and Answers on Title IX and Sexual Violencestating the documents did not provide clear guidance for institutions or equitable Title IX inquiries for both parties.  In the interim, U.S. Secretary of Education, Betsy DeVos released interim guidance on campus sexual misconduct.  In November 2018, OCR released a Notice of Proposed Rulemaking to make these changes official.  

Some say that colleges may be the most direct beneficiaries of the changes, allowing them more leniency in their policies and procedures.  Proponents of the changes say it decreases liability of colleges, which would allow them to increase support to victims, and improves the rights of the accused. Critics of the Proposed Rulemaking, including the American Civil Liberties Union (ACLU) and the National Women’s Law Center, were particularly concerned with the mandatory cross-examination by advisor, which all students may not be able to afford, the narrowed definition of sexual harassment to only ‘pervasive and egregious behavior’ and the requirement of colleges to only investigate claims reported to the proper official and that occurred within a college’s program or activities (i.e., not off-campus).  In addition, some are concerned that it may discourage sexual assault survivors from reporting incidents, although that was not the new policy’s purpose.

            Marshall University has had a series of Title IX lawsuits, filed against them due to their alleged mishandling of campus sexual assault cases.  In one case, Gonzalez v. Marshall University Board of Governors, a student was repeatedly exposed to her attacker, while he remained on campus.  In addition, during the student conduct hearing, the accuser was aggressively cross-examined by the accused’s private attorneys, while she did not have counsel present.  Also, the hearing was not conducted by properly trained individuals, and physical evidence was not permitted due to the ongoing criminal trial.  The accused later entered a Kennedy plea (see Kennedy v. Fraiier) in the criminal case, which created a loophole for him to return to the university based on their policies, and the accuser left the university as a result.  Similarly, Doe 1 v. Baylor University was a case filed by 10 former students that accused Baylor of not adequately investigating their claims of sexual assault. While their Title IX claims were denied due to statute of limitations, their state-law claims of negligence and breach of contract were upheld. 

Sexual violence on our college campuses is an epidemic, and Title IX’s aim is to protect students and employees and provide a more equitable learning environment.  Title IX is not perfect but was revoking guidance that clearly had public support the answer?  Do universities need more leniency in application of Title IX?  Does the government need to provide the necessary training and resources to enforce the regulations that were already in place?  In the end, who was revocation of the 2011 Dear Colleague Letter ultimately protecting?   

This is a guest post from Nicole Hacker, a PhD student and research graduate assistant in the Department of Educational Leadership at Central Michigan University.


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