Department of Education Title IX changes lead to new interim sexual misconduct protocols

Occidental College's lower campus quad. Nancy Zhou/The Occidental

Occidental College has implemented Title IX policy changes to comply with the new guidelines issued by U.S. Secretary of Education Betsy DeVos May 7. According to DeVos, her main goal with the new regulations was to secure due process for students who have been accused of sexual misconduct, including assault and harassment. These federal policy changes require a stronger burden of proof that the alleged sexual misconduct happened. In addition, both parties and all witnesses are subject to a live cross-examination, according to the Summary of Major Provisions of the Department of Education’s (ED) Title IX Final Rule. Colleges and universities that accept federal funding were required to implement these new regulations into their sexual misconduct policies by Aug. 14. These new requirements have been added to Occidental’s Interim Sexual Misconduct Policy, according to Occidental’s Title IX Coordinator Alexandra Fulcher.

“The Department of Education narrowed what Title IX covers. Schools had the option to narrow their policies to what the Department of Education said Title IX covers,” Fulcher said. “Most schools chose not to do that and chose to prohibit the same stuff they were prohibiting before.”

In a campus-wide email Aug. 14, Fulcher, who started at Occidental in January, emphasized that these new ED regulations would not change how inappropriate sexual conduct is handled by the college. According to the email, one of the new features added to the Interim Sexual Misconduct Policy states, “Parties who do not wish to participate in the formal disciplinary process may choose to participate in the College’s expanded adaptable resolution process.” The Adaptable Resolution Process is an option if parties want resolution without the respondent going through the formal disciplinary process, according to Appendix D of Occidental’s Interim Sexual Misconduct Policy.

According to Fulcher, the Adaptable Resolution Process is only available if both the complainant and the respondent voluntarily agree to participate. This pathway is not available for all cases involving sexual harassment or assault in which a college employee is the respondent and a student is the complainant.

Fulcher said the new Title IX regulations involve specific guidelines including: live cross-examination during Title IX hearings involving sexual harassment. According to Fulcher, this means advisors of both the respondent and the complainant have the opportunity to directly ask questions to the other party and any witnesses. However, it is up to the hearing officer to deem those questions relevant to the case itself. Additionally, in order for the hearing officer to consider a witness’ statement in the case they must submit themselves to live cross-examination. Prior to these new changes, witnesses did not need to submit themselves to cross-examination in order for their statement to be considered in the hearing, according to Fulcher.

“Now, witnesses have to participate in the hearing in order for their information to be considered,” Fulcher said.

The new Title IX regulations can be found in Appendix A of the Interim Sexual Misconduct Policy.

“[The case] either has to be sexual assault, dating violence, domestic violence or stalking. Or, sexual harassment that is so severe, persistent and objectively offensive that it limits someone’s ability to get an education or go to work,” Fulcher said. “Or, if an employee conditions something to a student, like a quid-pro quo scenario.”

Another significant change is that the event must occur at a school-sanctioned activity or program in order to be classified as a formal Title IX complaint, Fulcher said. Activities or programs include anything that happens on Occidental’s campus, within a school-sponsored club or athletic event, and it must take place in the U.S.

According to Fulcher, the language that determines whether or not a case qualifies for the Title IX Sexual Harassment process is nuanced, and a Non-Title IX Sexual Misconduct process is available if a case does not meet Title IX standards.

An additional resource Occidental has for community members is Project for a Sexual Assault-Free Environment (Project SAFE), which provides confidential resources and support services for survivors and victims of relationship and sexual violence. According to Project SAFE Programming Assistant (PA) Junko Anderson (senior), the Title IX policy changes do not affect Project SAFE.

Anderson said he does not support the new Title IX regulations and staged an informational campaign so the Occidental community could express concerns about the new measures. However, Anderson said he is impressed with how the college has chosen to handle these new measures.

“I’m actually incredibly relieved about the approach Oxy is taking,” Anderson said via email. “Where the federal regulations basically allow institutions to claim large swathes of college life as beyond their jurisdiction, Oxy is maintaining its commitment to the existing sexual misconduct policy.”

Fulcher and Marianne Frapwell, Project SAFE senior manager and survivor advocate, updated Occidental’s Interim Sexual Misconduct Policy to minimize the changes created by the new Title IX regulations, according to fellow Project SAFE PA Mia Villegas (junior).

“I think for the Oxy community it’s encouraging to know that these new policies minimally affect the options that a student has thanks to our broadening of the misconduct policy,” Villegas said via email.

Frapwell said Occidental has kept myriad different avenues open for survivors by expanding options under the “adaptable resolution” section of the new policy. Some of these options include restorative justice conferences, sharing of impact letters and mutually agreed-upon outcomes.

“One of the most important takeaways from my perspective is that the college has done what it can to keep as many resolution avenues as possible open for survivors,” Frapwell said via email. “The new [regulations] and how Oxy had to adjust its policy to comply with them while still maintaining its commitment to survivor agency can make for a confusing document.”

At the start of the new academic year, President Harry J. Elam Jr. appointed new members to the College Committee on Sexual Responsibility and Misconduct (CCSRM) in order to finalize a draft of Occidental’s permanent Sexual Misconduct Policy, according to the Aug. 14 email. Fulcher said CCSRM invites have been sent out to representatives from the Title IX office, Financial Aid, athletics department, Project SAFE, Human Resources, Emmons Wellness Center, Faculty Council, the Dean of Students office, Campus Safety, Residential Education & Housing Services, Intercultural Community Center, Student Conduct, International Programs Office and two student representatives.

“We tried to get constituents from a broad section of the community that has an interest in the policy,” Fulcher said.

Once this committee has been finalized, a school-wide email will outline the different roles in CCSRM and the goals for the permanent policy, according to Fulcher.

Fulcher said Joe Biden’s presidential campaign has already publicly stated that if he is elected he will withdraw the new Title IX regulations imposed by DeVos. However, because the Trump administration went through a formal legislative process to enact these new guidelines, reversing them would not be immediately effective, according to Fulcher.

“What I would want students and the community at large to know is that the regulations have made our process a little more complicated, and has added direct cross-examination for cases involving Title IX sexual harassment,” Fulcher said. “However, our commitment to making sure our students and the campus are safe has not changed.”