Title IX comment period closes

Some on CU Denver campus are concerned about Title IX changes. Photo: Taelar Johansen · The Sentry

Changes could impact Auraria Campus
Some on CU Denver campus are concerned about Title IX changes.
Photo: Taelar Pollmann · The Sentry

In late 2017, US Education Secretary Betsy DeVos announced an overhaul of Title IX policies. Her proposed changes were released in November 2018, beginning a public commenting period to receive input and questions from those that would be affected by the changes to Title IX. The Department of Education received nearly 103,000 comments, some of which came from the CU system after receiving student input.

Title IX is a federal civil rights law that protects individuals from sex discrimination in education. Institutions that receive federal financial assistance are required to obey the policies set by the Department of Education. Title IX releases guidelines that each federally-funded university needs to follow to meet those requirements.

“What Title IX essentially does is ensure equal access to education for all people, particularly for people who are underrepresented or women,” Ken McConnellogue, Vice President for Communication for the CU System’s Office of the President, explained.

Most faculty and staff on campus are mandatory reporters for Title IX. This means that if they observe or learn of any instance of sex-based discrimination occurring to a student, whether it’s on or off campus, they are required to report that instance to Title IX. The Title IX office then investigates the claim, decides whether it is credible, then proceeds to hearings. The victim will present evidence of their claim, and the University will decide on how to carry out required sanctions.

“It’s a fairly robust process with a number of checkpoints along the way,” McConnellogue said. “I think we have some pretty extensive processes now.”

In November 2018, Secretary DeVos released her proposed changes to Title IX that universities like CU Denver would be required to follow. Her proposed changes have five main areas of affect.

The first proposed guideline that would go into affect is the amount of evidence required for a report to proceed in investigation. Current standards dictated by Title IX require the preponderance of evidence.

“It’s like 50 percent and a feather. That’s how certain we are that this happened,” said Katherine Miller, Victim Services Coordinator for the Phoenix Center at Auraria, regarding the current standards for evidence.

The proposed guidelines require universities to  receive “clear and convincing” evidence.

“It definitely ups that threshold of what kind of evidence needs to be presented… to move forward with an investigation and to hold someone responsible for violating Title IX in the students code of conduct,” Miller said.

When victims of discrimination, sexual harassment, or sexual assault come forward, they usually tend to have more than one form of evidence. Evidence can include but not be limited to text messages, photos, eyewitness testimony, or emails—but that isn’t always the case.

“In my experience, people usually have a little bit of all of that, so they have their testimony, they have some kind of physical evidence, and they have a witness,” Miller said. “Sometimes the only evidence we have is their testimony.”

Another proposed change is that universities must allow the accused to cross examine the victim. As current Title IX guidelines are, only the accused is cross examined by the victim or their legal advocate.

Those in favor of these changes to allow victims to be cross examined by the accused feel that this makes the process fairer for the accused. The Department of Education released a statement that these changes would ensure “fair, reliable procedures that provide adequate due-process protections for those involved in grievance processes.” Groups such as the Foundation for Individual Rights in Education, a free-speech advocacy group, feel that these changes would also make the process fairer for all parties involved.

“Proponents say that current rules do not provide appropriate due process for people who are accused,” McConnellogue explained.

This added process would add protections for those who are falsely accused. If an individual is facing false accusations, being able to cross examine their accuser allows them to have a higher likelihood of being found innocent.

Those in opposition to this change, such as Jamie Newton, graduate student at CU Denver and Coordinator for the Women and Gender Center, are concerned about the effect that the cross examination would have on the victim. The process of cross examination against a victim allows for the accuser to bring up any evidence they have against the claims. By doing so, many feel that the victim will have to relive traumatic events.

“The idea of re-traumatizing someone by being in a room with their perpetrator, or the perpetrator’s attorney, or an angry parent with no limitations on what they can bring up… is terrifying,” Newton said.

When a report is made to Title IX, the accused individual is always informed of who is accusing them. If these proposed changes are enacted, Miller fears that those accused having to both be known to the individual they accuse, as well as facing them once more, would prevent individuals from reporting to Title IX or other resources, such as the Phoenix Center at Auraria.

“There are, existing now, a lot of barriers to people reporting. One of the hardest things about reporting to police or reporting to Title IX is that the person that you’re reporting against knows it was you. There’s no getting around that,” Miller said.

While the goal of this proposed change of allowing the accuser to be cross examined is to protect against false accusations, Newton has her doubts.

“All of this is to make the process more fair theoretically, but I don’t see how that actually is the case when false reports are so miniscule,” Newton said. It’s estimated that eight percent of all sexual assault allegations are proven to be false, according to Newton.

Once an incident is reported to Title IX and trials proceed, the University will decide how to go about carrying out repercussions against the accused. Current Title IX guidelines allow for accusers to appeal if they disagree with the punishment. However, DeVos’ proposed changes eliminate that possibility.

The final proposed changes include the scope of which cases can be reported to Title IX. Current standards allow any sex discrimination or assault that occurs to a student to be reported, regardless of the location of the event. The proposed changes would only allow for Title IX to address cases that occur on the grounds of the University.

“At a school like ours, where the vast majority of students live off campus, that means that we can’t help most students,” Newton explained.

After DeVos’ proposed changes were announced in November 2018, a 60-day commenting period began for any individual, organization, or university to voice their questions or input on these changes. This commenting period closed on Jan. 30. Nearly 103,000 comments were sent to the Department of Education to be responded to individually. On behalf of President Bruce Benson, University Counsel Patrick O’Rourke filed comments and questions to the Department of Education in order to help determine how to interpret and implement these key changes if they are approved.

Both Miller and Newton are afraid that these changes to Title IX’s requirements will make victims less likely to report instances of sexual harassment or assault to Title IX, the Phoenix Center, or the Women and Gender Center.

“It’s a horrendous idea,” Newton said. “From the Universities’ perspective, this is catastrophic. Nearly 30 percent of students who experience sexual assault drop out of university.” By reducing this resource to students, Newton fears that the number of assaults and instances of discrimination reported to any on-campus resource will decrease.

“Even if these proposed rules are to go into effect, there are many individuals on this campus who care greatly for survivors and who are powerhouses in representing the needs of survivors. That will not change,” added Newton on behalf of the CU Denver Women and Gender Center.

“It will not change the services available to students here on campus. We will still discuss Title IX as an option if it’s one that is available,” Miller said on behalf of the Phoenix Center at Auraria. The PCA is one of the few resources on campus that is not required to report to Title IX, and victims are able to remain more anonymous.

Regardless of whether these proposed changes are approved and set updated guidelines, the CU system will be required to follow those guidelines.

“When the final guidelines are issued, then it’s up to us to determine if we need to make changes to our policies and procedures,”  McConnellogue said. “The University’s bottom line is to create an environment for people to take full advantage of a university education, free from discrimination and harassment.”

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