College Misconduct Policy Forms in Response to Federal Changes to Title IX

In August, as students busied themselves with preparing for the fall semester, the Title IX office released important information regarding recent changes to the college’s Title IX policy and procedure. The changes were summarized in an email to the Swarthmore community on August 17 from Title IX Coordinator Bindu Jayne.

The Title IX Office spent the summer months planning and modifying college policy following the announcement from the Department of Education regarding national modifications to the official Title IX amendment.

Last May, U.S Secretary of Education Betsy Devos announced that the Department’s Title IX regulations had changed for federally-supported schools and universities across the country. Changes included a formal definition of sexual harassment, geographical limitations for reports, and an attempt to “… restore due process in campus proceedings to ensure all students can pursue an education free from sex discrimination.”

The Department of Education’s definition of sexual harassment narrows the type of incidents that would be accepted under Title IX, and requires a formal hearing process with live cross-examination for those cases. 

The decision resulted in backlash from civil rights organizations who argued the changes would discourage students and faculty from reporting sexual misconduct and could create potentially traumatic situations. Organizations such as the National Women’s Law Center claim that the rule would deny survivors their civil rights and discourage students from reporting assault.

The Office of Civil Rights within the Department of Education countered that they believe the policy will protect survivors while also protecting the rights of the accused.

Following the Department’s decision, a group of anonymous Swarthmore students published a response directed at the college administration on May 16. All students in the broader college community were able to sign the response after it was posted in the Swarthmore College 2019-2020 Facebook group.

Signers emphasized the need for the college to commit to the protection of survivors of sexual misconduct and discrimination. 

“Over the past years, student organizations, often led by Black survivors, have fought for (and won!) better protection for survivors of sexual violence,” the signers wrote. “This policy change would roll-back many of the hard-earned protections for survivors in our Title IX process.”

In the months succeeding the initial changes and student response, the Title IX office and relevant staff at the college worked on finalizing the official college policy concerning Title IX cases. They relied on reports and observations from the Title IX Student Feedback Working Group, consisting of 14 Swarthmore students who were able to apply to the Title IX office in June to become involved in the decision making process.

The college now has two separate policies under which complaints can fall: the Title IX policy and the new College-Defined Sexual Misconduct policy. Before the new policy, all reports within the college regarding sexual harassment or discrimination tended to fall under the umbrella of Title IX, with no other policy needed. 

Now, according to the Title IX office, reports that fall under the Title IX policy must have occurred on-campus or in a college-affiliated program or activity in the United States. Official Title IX reports must also fit under the new definition of sexual harassment as instructed by the U.S. Department of Education. 

For all other reports that do not fit these parameters, the college will continue to provide support and formal complaints as needed, using the College-Defined Sexual Misconduct Policy which covers all other prohibited conduct traditionally reported to the Title IX office.

“If anyone has been affected by sexual harassment or sexual violence, all the support, resource options, and adaptable remedies are available regardless of which procedures apply,” Jayne wrote in an email to The Phoenix. “Unless or until someone chooses to pursue a formal complaint, the process is exactly the same under both procedures– the reporting, responding, and resource availability is the same.”

If a member of the college reports an incident, the report first goes to the Title IX office, which provides resources and an initial meeting between the student and the Title IX coordinator. The report is then assessed by the Title IX office to determine the safety of the reporter and the campus at large.

The next steps in the process after the report assessment involve adaptable remedies (in which the students involved can choose to participate and are meant to resolve issues alternatively) and an investigation.

If there is a formal complaint made, then the Title IX office determines whether the report falls under the Title IX policy or the College-Defined Sexual Misconduct Policy. The findings from the investigation are then brought forward to an adjudication

For cases that fall under Title IX, if both parties decide to participate, the adjudication includes a cross-examination— a new feature following the federal Title IX changes that garnered criticism from civil rights groups.

For cases against students that fall under the College-Defined Sexual Misconduct Policy, this change does not apply. According to the official policy, there would be no part of the adjudication where either party would be able to question any other participant. 

In the email to the Swarthmore community, Jayne articulated that the Title IX office did not anticipate large delays in the timeline that reports must follow, but does recognize that the new policy requires a 20-day review period post-investigation for cases under the official Title IX policy.

However, according to Jayne, the office has worked to make the post-investigation process (and the complaint process as a whole) more time-efficient. The remote format that investigations are currently taking could also decrease the amount of time that it would take for a formal decision to be made.

Over the years, Elisabeth Miller ’21, a senior at the college, has interacted with the Title IX office and her experiences there lent her a passion for Title IX and discrimination issues. She participated in the Title IX Student Feedback group over the summer and worked with the Title IX office as they adapted the policies.

“When we’re dealing with the topic of sexual violence, especially given Swat’s history, there are bound to be mistakes, and no solution will ever be perfect,” she wrote in an email to The Phoenix. “But we can work to make changes where we can, and I believe that [Title IX Project Manager] Chelsey Biel and Bindu have done that with the creation of the college defined policy.”

The Title IX and sexual misconduct policies also include the Clery Act, a federal law that requires colleges and universities to notify students in a timely manner about campus crime (including sexual misconduct). If the college is not able to identify and or take steps to address the threat then they are required to notify the community of the incident in a “Timely Warning Notice” email from Director of Public Safety Michael Hill.

“If we determine that a Timely Warning is appropriate, we make every effort to inform the victim(s) of the College’s obligation to notify the campus community,” Hill wrote in an email to The Phoenix. 

On September 6, the college sent a Timely Warning Notice to the community after an incident in a residence hall on campus. Students may expect further notices by email if there are more incidents in the future.

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