Explained: Changes to Title IX

Image+obtained+from+wigdorlaw.com.+

Image obtained from wigdorlaw.com.

Melissa Touche (Baca), Social Justice Reporter

“As most of you are aware, on May 6, 2020, the United States Department of Education’s Office for Civil Rights (OCR) released the New Rule and created sweeping changes to how most institutions operated as it pertains to Title IX and sexual misconduct.  These changes went into effect on August 14, 2020,” said University of Wisconsin-La Crosse Interim Director of Title IX and Compliance, and Division of Diversity and Inclusion, Kara Ostland in an interview with The Racquet Press.

“Some of the more noticeable changes relate to definitions, jurisdictional changes of what is covered by ‘Title IX,’ the requirement of a live hearing, and the transparency of training utilized by institutions.  These changes were to add more transparency to the process as well as to ensure due process to all parties involved.  The changes also gave Complainants more control as it relates to whether or not to file a formal complaint and how the university should respond,” she said.

Ostland said that the changes will provide UWL the opportunity to demonstrate its dedication to the sexual misconduct problem on its campus and work towards making the campus equitable for all students.

Ostland said, “OCR has set a floor for compliance to which we are committed to aiming for the ceiling of best practices. To that end, many of the practices that were in place prior to the new regulations are still in place. We are committed to reassuring all parties that the Title IX Office is here for you, that we will do everything not prohibited by the regulations to make reporting easier, to offer services and resources to those impacted, establish a process that is transparent, avoid re-victimization, and continually assess our process to ensure we are meeting the needs of our campus community.”

Student Association Pride Senator K.C. Cayo said, “The new definition and the new legal jurisdiction based on these changes, from August 2020, limit the obligation to investigate complaints. So now it’s only from conduct that happens in the school’s programs activity, it no longer relates to study abroad or off-campus conduct,” they said. “You can still report those crimes and the school will look into them, it just wouldn’t be under Title IX, so the resources will no longer be there for you.”

Cayo said they are afraid of what the new wordage and the narrowed definition of sexual assault will mean for students. “They’re allowed to do cross-examination now in hearing. It used to be a trauma-based response, and sexual violence experts, say that cross-examinations can be retraumatizing,” they said. “In general, it just makes it a lot harder for survivors to report sexual violence.”

There are several standards for the burden of proof in use by the United States Court system. Beyond a reasonable doubt, the standard used for high profile crimes – such as murder – means that to be proven guilty. These standards ensure that cases are given the amount of weight that they deserve for sentencing, while also protecting the right to be innocent until proven guilty.

Under the Obama Title IX guidance, the burden of proof was “preponderance of the evidence,” to accommodate for the lack of physical evidence available due to the nature of sexual crimes. Meaning, the evidence must prove that the crime more-likely-than-not took place.

According to Inside Higher Education reporter Greta Anderson, the burden of proof was changed to better protect the accused, who believed their right to innocent until proven guilty had been violated. The burden now requires evidence to be “substantially more true than untrue,” by a 50% standard. “The 2020 regulations will instead allow Title IX officials at colleges to use either a preponderance of the evidence or “clear and convincing” standard, which sets a higher burden of proof,” said Anderson.

Title IX is a federal law that states, “No person in the United States shall be based on 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.” It is enforced by The U.S. Department of Education’s Office for Civil Rights (OCR). UWL’s Office of Title IX and Compliance is part of UWL’s Diversity and Inclusion Department.

Cayo said that despite UWL implying intentions to do investigations based on off-campus and abroad issues, they are concerned about the opt-in nature of was previously a mandatory protection process.

SEED Campus Climate intern Mirm Hurula, in an interview with The Racquet Press, said that this new wordage creates more room for error and de-validates the victim, whom they said deserves to be at the center of the crime.

“I understand that it might be coming from the position of ‘innocent until proven guilty but, why are we starting this terminology change when a huge majority of perpetrators identify as male? Why are we starting with a crime that is so invested in gender-based violence? These terms should be accessible to folks who aren’t in the field of law or law officials,” said Hurula. “When we look at Title IX, they are for the students, teachers, faculty, staff, and so on. This should be for the people and should be accessible to them.”

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