Recent changes in the federal Title IX policy, spearheaded by Betsy DeVos, have refocused a national discussion on the standard of evidence used in sexual and gender-based misconduct cases.
Under the previous Title IX standards, put into place by Obama’s Dear Colleague letter, colleges were required to use a Preponderance of Evidence standard. While DeVos holds a commenting period for her new Title IX legislation, she is giving colleges the choice to either stay with the Preponderance of Evidence standard or increase that standard to the Clear and Convincing Standard.
Title IX Coordinator Joel Aure has confirmed, in person and over a campus wide announcement, that “no changes will be made at this time to our Sexual and Gender-Based Misconduct Policy,” and therefore Skidmore will be keeping the Preponderance of Evidence standard. Skidmore defines this standard as being “when a reasonable person, after a careful balancing of available information, would conclude that ‘more likely than not’ a violation has occurred and the student charged is responsible for the violation.”
The current process used to evaluate reports of sexual and gender-based misconduct under the policy of Obama’s Dear Colleague Letter is laid out on the Sexual and Gender-Based Misconduct Resources page of the Skidmore website.
The Administrator Adjudication panel regulates Skidmore’s SGBM process, and is made up of three people who are never completely male or female, chosen from twelve faculty members. A new three people are chosen to sit on the panel, depending on who is available. Those who sit on the panel determine whether the accused individual is guilty or innocent, and, under current Skidmore policy, whether the evidence provided meets the Preponderance of Evidence Standard.
Christine Kopec has been an Adjudication Panel Member at Skidmore College for the last ten years, and works in the Department of Management and Business.
Kopec defines due process as a “notice and a right to be heard, by a fair and impartial system,” and believes that in the investigations she has taken part in, the accused were getting due process.
Kopeck states that no policy is faultless, but that our current policy is a “damn good policy.” This policy may be replaced, and other changes may soon arise once Betsy DeVos creates a new policy to substitute Obama’s Dear Colleague letter.
The Dear Colleague Letter, released in 2011 under the Obama Administration, is one of the most significant changes to Title IX policy since 2001. The Dear Colleague Letter brought many new definitions, such as expanding the range of SGBM to include sexual violence and hostile speech environments.
Most notably, the Dear Colleague letter included the enforcement of the Preponderance of Evidence Standard. Title IX operates under the Office of Civil Rights; the Preponderance of Evidence Standard is used for violations of other civil rights laws, so the Obama administration concluded that the same standard should be used under Title IX.
DeVos believes that requiring colleges to use the Preponderance of Evidence standard and blocking either side from cross- examining the other unjustly damages due process rights.
Changes may be under way shortly, and they would not be unprecedented. The Title IX policy has been a continuously evolving form of legislation and policy since its creation in 1972. Sexual harassment is not mentioned in the Title IX legislation itself, and sexual harassment was not claimed to be a violation of Title IX until Alexander v. Yale University in 1977. Since this court case, sexual harassment came to be viewed as a form of sex discrimination. In 1981, policy officially shifted to include sexual harassment as a violation of Title IX. However, these changes did little to affect public opinion, or the outcome of court cases.
In 1992, the Supreme Court ruled that compensation would be given to victims of sexual harassment under Title IX after Franklin v. Gwinnett County Public Schools. In 2001, sexual harassment that contributed to a “hostile environment” was established as a violation of Title IX.
Title IX is a continuously shifting piece of legislation, shaped greatly by the administrations in power. This comment period will give colleges a chance to provide the Department of Education feedback on how well the policy is working now, and how it could be improved.