By Bryce Wachtell (PO ’21)
On November 30th, Sue McCarthy—Pomona College’s Title IX Coordinator—sent an email to the student body regarding the Trump Administration’s proposed regulations to govern investigation and adjudication of sexual misconduct on college campuses. The reversal of Obama-era guidelines have stirred controversy and stoked division for their new approach to long-standing issues. Advocates of the new guidelines posit that they grant fairness and impartiality to all parties. However, opponents—many of whom are higher education professionals—reject the proposal, arguing that it further tips the balance of justice away from survivors of sexual misconduct and assault. The proposal has profound implications for the treatment of survivors and offenders both within Claremont and across the nation.
The report proposes a slew of changes aimed mostly at protecting accused perpetrators. Among these, the guidelines would “require institutions to provide a live hearing, and to allow the parties’ advisors to cross-examine the other party and witnesses.” Likewise, the Department has suggested a new, narrower definition of sexual harassment so that it “seeks to include only sex-based discrimination that is sufficiently serious as to effectively deprive a student of equal access to a funding recipient’s educational program or activity.” The suggestions also diminish the responsibility of schools to respond to reports of misconduct. And, when schools do respond, they are only required to do so without “deliberate indifference.”
The unforeseen repercussions of these changes may be weighty. For instance, many have argued that victims of sexual misconduct—who already face lengthy, invasive, degrading investigative procedures—will be further deterred from reporting incidents if a hearing requires cross-examination. Likewise, the proposal limits the responsibility and liability of a college to only school-sponsored events. This leaves little room for consideration of incidents which occur at off-campus, non-affiliated events—even though they may be a seamless component of a college’s culture. Additionally, those such as University of California President Janet Napolitano argue that the narrower definition of sexual harassment will exclude a range of still-reprehensible behaviors. Plus, the ambiguous and flexible standard of “deliberate indifference” alleviates a large amount of liability for colleges in resolving reported cases.
Emily Coffin, a student and member of the Pomona College Advocates for Survivors of Sexual Assault, said, “The regulations are undeniably dangerous, especially because they lessen the liability of institutions in handling these cases…. It is going to be imperative for students to stay engaged in this issue and place checks on the institution when the federal administration no longer will.”
In short, those who oppose the proposal argue that such rules will further deter survivors of sexual harassment and assault from coming forward to seek justice. As Napolitano wrote in a recent Washington Post opinions piece, “We have made important progress and, as a result, have seen a significant increase in reporting. This is important because it means people feel more confident about coming forward and are able to access the resources and recourse available to them. The Education Department’s proposed rules threaten to reverse this hard-won progress by unraveling critical protections for individuals who are sexually harassed and undermining the very procedures designed to ensure fairness and justice.”
Those who support the changes seem to mostly have the accused perpetrator’s due process rights in mind; to some, ease of reporting and thorough investigation procedures are considered at odds.
The Department’s release responded to these objections. It reads, “The Department emphasizes that a recipient remains free to respond to conduct that does not meet the Title IX definition of sexual harassment, or that did not occur within the recipient’s program or activity, including by responding with supportive measures for the affected student or investigating the allegations through the recipient’s student conduct code, but such decisions are left to the recipient’s discretion in situations that do not involve conduct falling under Title IX’s purview.”
Overall, supporters of these changes say they impose much-needed due process rules on colleges resolving issues of sexual misconduct. As Emily Yoffe wrote in The Atlantic, “These would rein in some of the excesses of Title IX… On campuses, this type of discussion—or indeed any introspection about the excesses of Title IX, the unfairness of the procedures, and the damage done to both young men and women on campus—has been strenuously avoided.” It is true, at least some good has come about as a product the proposal: the nation at large has continued the acrimonious but critical discussion on college sexual misconduct. However, the Trump administration seems poised for a both legal and ideological fight to get its view on the subject turned to law.
Pomona College’s Title IX Coordinator McCarthy did not explicitly endorse or reject the proposal in her email. Rather, she encouraged students to read and comment publicly their views. However, on the college’s present policy, she reiterated, “Please be assured that Pomona College remains strongly committed to providing a safe environment that is free from violence for all students, faculty and staff.” What that looks like in practice has yet to be seen.
Despite some progress, sexual misconduct, sexual assault, and rape remain major issues on campuses, with some perpetrators suffering little to no consequences and many survivors never receiving justice. The Education Department’s proposal—spearheaded by Betsy DeVos and President Trump—will no doubt shape the future of college policies for years to come. An ongoing interrogation of these changes is critical to holding the Claremont Colleges and the nation at large accountable. As Coffin said, “This is an issue that affects our community deeply. I encourage people to pay attention and engage.”
