On May 6, the U.S Department of Education Office of Civil Rights (DoE) published new Title IX regulations regarding sexual misconduct cases on college campuses, which resulted in Bates’ new Equal Opportunity, Non-Discrimination, and Anti Harassment Policy published on Aug. 14.
The Title IX changes specifically pertain to the reporting process for sexual violence, while previous adjustments, like The Dear Colleague Letter, focused more generally on protections for students. Perhaps more importantly, this revision has the weight of law behind it, just like any legislation passed by Congress, as opposed to being a set of guidelines. If a school does not follow the new Title IX rules, they could be held liable for violating a student’s rights in a court of law. Theoretically, they could be subject to a loss of federal funding, but court costs are a far more likely consequence.
Notably, these changes include the mandate of live hearings with the accused and the accuser present; both parties would have to be questioned in front of one another.
The final regulations include a provision allowing for this to be accomplished remotely: “the recipient must provide for the entire live hearing (including cross-examination) to occur with the parties located in separate rooms with technology enabling the parties to see and hear each other.”
Though the mandate of live hearings is certainly the most obvious change, with Bates having to make a change from administrative hearings to this new cross examinatory style, there are several other changes that impact the handling of sexual misconduct on campuses nationwide.
To be ruled sexual harassment, behavior must be “severe, pervasive, and objectively offensive,” to the extent that it denies a student’s access to education, as opposed to limiting or inhibiting it. It is worth noting that this conduct must be reasonably all three of the above – severe, pervasive, and objectively offensive- as opposed to meeting one or two of these standards. Colleges are prohibited from classifying misconduct that does not meet this specific requirement as sexual harassment.
Sexual misconduct affects a large number of Bates students directly. According to the 2017 Bates Campus Climate Survey on Sexual Misconduct, “25.5% of respondents [a total of 838 students] reported having experienced at least one incident of any type during their time at Bates.” These incidents include stalking, sexual harassment, non-consensual sexual contact, and sexual assault.
Confidence in the Title IX office to provide support, respond appropriately, and keep confidentiality for victims was particularly high, at over 90%. The process that students have reported such confidence in has been altered as a result of the DoE regulations.
A May letter from President Spencer announced that Bates would be making revisions to policy to follow the new rules, and also included a link to official comments on the proposed changes to Title IX from January. In these comments, she and Gwen Lexow, Director of Title IX and Civil Rights Compliance, expressed concerns that changes may create an inequitable process and discourage survivors from reporting.
Lexow noted over email on August 20 that “most of the concerns [they] outlined in [their] letter to the Department of Education remain.”
The Equal Opportunity, Non-Discrimination, and Anti Harassment Policy will now include the live hearings and has a narrower definition of sexual harassment. She stated that even given their new restrictions on addressing sexual harassment, “our behavioral standards have not changed,” meaning that behavior that Title IX can no longer address will be addressed by the college separately under other provisions of the new policy.
Title IX was originally passed in 1972 and states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Subsequent legislation clarified that “federal financial assistance” need not mean direct federal aid, thereby expanding the requirements to private colleges with more indirect assistance.
Presidential administrations have shaped this law’s scope in the past. For example, the DoE under President Obama published guidelines for colleges to apply the policy’s protections to LGBT students, particularly focusing on the issues that transgender students may face in schools. These protections were later rolled back by the U.S Department of Justice in 2017.
Maddy Clark ‘20 and Izzy Eichenbaum ‘21 created a website detailing the new Title IX regulations released by the DoE. While Clark wrote up the information, Eichenbaum stated that her role in this project was to design the website, and she took on that role after being motivated by “outrage.” She believes the website and other efforts to address Title IX are important because the original document released by the DoE “clocks in at around 2,000 pages,” which she calls discouraging to readers.
The site details some changes they felt were not properly addressed in Bates’ January letter, such as that “schools must only investigate those incidents which occur on school property, at school-sponsored events, or during school-sanctioned activities” and “schools are not required to adopt a uniform definition of consent,” nor a uniform evidentiary standard.
Clark wrote that these changes make it harder to “hold schools accountable.” It is important to note that, given such discretion, Bates may choose to keep policies that mitigate harm to survivors, but other schools may not. Schools are more empowered than ever before, and it is not unreasonable to believe that certain institutions will not prioritize survivors if given the choice.
Eichenbaum believes that the limitations of Bates’ assistance to survivors are not exclusively due to external pressures from the DoE, explaining that “students only learn about how the school handles sexual misconduct during freshman orientation, and as a senior, I don’t remember a single thing they taught us other than bystander intervention. That’s not great.” She also believes the vacancy in the position of Sexual Assault Victims Advocate (Bates’ previous SAVA left in Winter 2020) will create challenges for victims trying to report.
Bates has maintained its commitment to supporting survivors of sexual assault in past official communications.
Lexow stated that “The most important thing for students to know is that we have not changed our commitment to supporting students affected by sexual violence and sexual harassment; nor have we changed our willingness and ability to hold those who violate our community standards accountable.”
Students who wish to report or discuss incidents of sexual violence or harassment should contact Bates’ Sexual Assault Victims Advocate Andrea Bucciarelli, located in Chase 223. She can be reached by calling 207-753-6996, or by emailing [email protected]
A previous version of this article stated that the Sexual Assault Victims Advocate Position at Bates is empty. In fact, the position was filled by Andrea Bucciarelli in August.