Framingham State University has introduced a new Title IX policy after the Department of Education released new regulations [Final Rule] in May.
The Dean of Students Office sent two emails to the FSU community over the summer addressing the changes.
According to Kim Dexter, executive director of equal opportunity, Title IX, and ADA compliance, one of the most significant changes to the Title IX regulations released by the Department of Education is a new definition of sexual harassment.
“It [the change in definition] required us to basically start from the ground and write a new policy,” Dexter said. “And one of the biggest shifts was a new definition of sexual harassment.”
The new definition of sexual harassment, outlined by the Department of Education, states the Final Rule uses the Supreme Court’s Davis definition of sexual harassment, which requires the sexual harassment to be “severe and pervasive.”
According to Dexter, the new definition of sexual harassment is different from the University’s original policy, which defined sexual harassment as “severe or pervasive,” which stems from the Supreme Court’s Title VII workplace standard.
Now, in order for a complaint to fall under the Title IX sexual harassment policy, the actions must be both severe and pervasive and have a direct impact on the student that would hinder their learning experience.
This new definition means if an incident occurs off campus, it may not necessarily fall under FSU’s Title IX sexual harassment policy.
Dexter added while the incident would not necessarily fall under the definition of sexual harassment, “all forms of sexual harassment are prohibited,” and the University would “look at other policies and conduct codes.”
She said despite the new definition of sexual harassment, any complaint filed could still apply to other aspects of the Title IX policy.
“Sexual assault, domestic violence, dating violence, and stalking are all behaviors prohibited under Title IX as stand-alone definitions,” Dexter said.
The email sent by the Dean of Students Office also touched on the new “narrower” definition of sexual harassment under Title IX and added the conduct “must also occur within an education program of activity, and in the United States.”
The email also stated the University’s Policy Against Discrimination, Discriminatory Harassment, and Retaliation, “remains unchanged” and prohibits sex and gender-based harassment.
The University’s email also stated, “Certain behaviors are prohibited under both policies and other behaviors are only prohibited by one policy.”
The new policy, titled the Equal Opportunity, Diversity, and Affirmative Action Plan, was written in collaboration with Bridgewater State University, Fitchburg State University, Massachusetts College of Art and Design, Massachusetts College of Liberal Arts, Massachusetts Maritime Academy, Salem State University, Westfield State University, and Worcester State University after the Department of Education released its new policies.
All nine state universities that took part in the construction of the plan have the same Title IX policy.
The new Title IX policy also includes significant changes to the student conduct process with regard to Title IX offenses.
The changes come in response to what the Department of Education deemed as “due-process issues” within the education system, according to Dexter.
The due process issues were said to specifically concern how respondents were treated during the conduct process, according to the Final Rule.
The respondent, according to the Equal Opportunity, Diversity, and Affirmative Action Plan, is “an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment. A respondent is presumed not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.”
Director of Community Standards Jay Hurtubise said due to the new regulations from the Department of Education, the University needed to shift from a single-investigator model to a new one to account for the department’s new rules.
Prior to the Title IX changes, Hurtubise said one person would be responsible for the investigation, conducting interviews, and preparing the case to determine if the respondent would be held accountable for the alleged incident.
Hurtubise said the role of deciding responsibility now falls to him in his role as “Decision Maker.”
The decision maker is responsible for moderating the hearing proceedings and deciding if any question asked is inappropriate.
According to the Equal Opportunity, Diversity, and Affirmative Action Plan, The Decision Maker is “trained to participate in the hearing process and private deliberations.
“Decision Makers determine the relevance of proposed questions during hearings, and issue written determinations or responsibility that include all findings, sanctions, and remedies,” according to the plan.
Investigations into Title IX complaints may include interviews of the parties and witnesses, consideration of all relevant documents, and evidence collection – including photos, messages, guest sign-in logs, and more, according to the Equal Opportunity, Diversity, and Affirmative Action Plan.
According to the new regulations, questions about the complainant’s prior sexual history are allowed in certain circumstances.
“Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant unless: such questions and evidence about the complainants’ prior sexual behavior are different to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent,” according to the Equal Opportunity, Diversity, and Affirmative Action Plan.
According to the Equal Opportunity, Diversity, and Affirmative Action Plan, the complainant is “An individual who is alleged to be the victim of conduct that could consititue sexual harassment under this policy. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program of the University with which the formal complaint is filed.”
One of the most significant changes, according to Dexter and Hurtubise, is that now all Title IX cases require live cross-examination of parties.
Originally, according to Hurtubise, the parties never met face-to-face. Instead, they could submit questions to Hurtubise and he would forward those that were relevant to the respective party.
Now, all parties, including witnesses, must be available for questioning and cross-examination. If they are not, any information provided by that person cannot be used in the hearing, according to the new regulations.
“At the University’s discretion, live hearings may be conducted in-person or virtually,” as long as both parties, witnesses, and other participants are able to see and hear the responding party.
Hurtubise said despite the new changes, the student who files the complaint and the student under investigation do not speak directly to each other during the questioning and cross-examination process.
“We want to make sure that protections are in place for all parties involved so we can minimize harm and retraumatization,” he said.
The role of advisors has also changed amid the new regulations.
Hurtubise said prior to the changes, the advisor’s main role was to sit in on the meetings and advise their party as needed. Now, they “play a more active role.”
Advisors will now be the people asking the parties questions and the University will still assign an advisor to any party who may not be able to get one themselves.
Advisors can be anyone the party feels comfortable with, including attorneys.
The Equal Opportunity, Diversity, and Affirmative Action Plan, similar to the previous plan, still attempts to ensure all cases are resolved within 60 days. However, Hurtibise said, “You’ll notice if you add up the numbers, it’s quite a big longer than 60 [days]. It will generally take a little bit longer for us to process cases using this new model that the new regulations mandate.”
IGNITE President Rachel Spivey said, “The new restrictions created under the Title IX policy changes will silence students more than ever before.
“The stigma surrounding having to report a sexual harassment claim is something that deters many students from reporting these incidents, and with these new guidelines for ‘how’ this harassment occurs, for it to be even considered harassment at all is only going to increase non-reporting.
“The thought of having to come face-to-face with your harasser or assaulter is something that could end up bringing back the feelings the victims had during those traumatic events,” she added. “The University has the ability to inform students of these changes and to let them know what their options are, but for now, these new changes are going to deter students from reporting their cases.”
Student Trustee McKenzie Ward said, “I strongly dislike the new Title IX policy and I believe it does a disservice to survivors of sexual assault as it threatens the rights of student survivors.
“While Secretary Betsy DeVos claimed that these new regulations were put into place to protect all students, it only protects perpetrators,” she added. “These new regulations, especially the cross-examination addition, will discourage survivors from speaking out. I hope that President-elect Joe Biden will fix these issues and focus on protecting student survivors.”
After a review and comment period, the Department of Education released a 2,033-page document. The document consisted of 2,007 pages of preamble, in which the department responded to 100,000 to 120,000 comments concerning the document, followed by the 26-page document outlining the new policies, according to Dexter.
Eighteen attorneys general filed injunctions in an attempt to block implementation of the Final Rule.
They were denied by the District Court for the District of Columbia and the new regulations went into effect in August.
Those states, including Massachusetts and Washington D.C., have since sued DeVos to block the regulations and the case is expected to continue into the spring, according to NBC News.
In Massachusetts, a coalition of victims’ rights nonprofits have challenged the legality of the new Title IX regulations and the case will go to a bench trial in Massachusetts federal court.
Dexter said they anticipate more legal challenges to the Final Rule and said they will change their policy as those lawsuits unfold.
“We may see a complete policy overhaul down the line,” she said. “As we have done in the past, we will respond if there are changes.”
Hurtubise said it’s important that all voices are heard and that the University’s first priority is the safety of its students and combating sexual misconduct.
He added, “At the end of the day, that’s the big piece that we’re all trying to do because we want a safer environment, healthier environment, and more respectful environment on our campuses.”
[Editor’s Note: McKenzie Ward is the Opinions Editor for The Gatepost.]