Luther considers Title IX policy changes

Aidan O'Driscoll, Staff Writer

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On Nov. 16 the United States Department of Education released its proposed rule changes to the Title IX policy, which will go into effect after a 60-day notice-and-comment period and a subsequent review process. During that period, Luther’s Title IX office is considering the impact these changes will have and whether or not to adopt them.

In a press release issued by the Department of Education, U.S. Secretary of Education Betsy DeVos spoke about her motives behind these changes.

“Throughout this process, my focus was, is, and always will be on ensuring that every student can learn in a safe and nurturing environment,” DeVos said. “That starts with having clear policies and fair processes that every student can rely on. Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined.”

The 60-day notice-and-comment period, which began on Nov. 29, allows for the public to provide feedback on the proposed changes. When the 60 days have finished, Department of Education officials are required to review the received feedback before making their final ruling.

Associate Director of Human Resources and Title IX Coordinator Matthew Bills outlined what can be expected in the coming weeks regarding the proposed rule.

“What we have is a draft essentially,” Bills said. “This is what the Department of Education thinks that they want to do, and now they are receiving feedback and depending on the feedback the rule may or may not change before it is implemented.”

The proposed rule includes a number of changes to Obama-era Title IX policy, including changes to the language surrounding burden of proof, changes to the Department of Education’s definition of sexual harassment, and changes to Title IX hearings procedure.

Regarding the burden of proof, the current administration has proposed a stricter standard as to what might be required to prove someone’s innocence or guilt.

“Under the new regulations you could choose either [the current Title IX regulation of preponderance of the evidence standard] or ‘clear and convincing evidence,’” Bills said. “So you could require a higher standard of proof before finding someone responsible for misconduct under Title IX related policy.”

However, schools are not required to make this particular change if they deem it unnecessary. Bills indicated Luther would likely not change the presiding rules.

The proposed changes would also narrow the definition of sexual harassment to quid pro quo harassment, sexual assault (as defined in the Jeanne Clery Act), and/or “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.” This is a change from the previous definition of sexual harassment: “unwelcome conduct of a sexual nature.”

The change that most directly affects Luther policy concerns the Title IX hearing process. The proposed rule would require schools to implement Title IX hearings which would include a cross-examination. While Luther already conducts hearings for Title IX investigations, the cross-examination process would be new.

“My fear with this change is that it will make the hearing process more traumatic for survivors of sexual assault knowing that they will be questioned by the other side directly,” Bills said. “I have concerns that we will have attorneys more heavily involved, that will magnify differences in resources between the two parties—unlike the criminal process, if someone can’t afford a lawyer then the court appoints one for free, but that doesn’t apply here so if one party has an attorney and the other doesn’t, does that somehow compromise our proceedings?”

Natalie Cote (‘19), a member of Norse Against Sexual Assault, spoke about the influence of the Trump Administration on opinions surrounding sexual assault, and what the proposed changes mean for Title IX  hearings.

“The whole attitude the Trump Administration has brought surrounding campus sexual assault is going to be negative regardless of whether or not they change policy—which they [plan to do]—but even before that, the conversations about the wrongly accused and not being able to have representation aren’t valid in my opinion.”

Corey Landstrom, VP and Dean for Student Life, works closely with Luther Title IX proceedings and voiced concern about the proposed rule changes.

“I fear the changes will create a chilling effect on participation in the formal process on college campuses and we are considering options that may provide a reasonable and acceptable alternative that could bring resolution to a complaint,” Landstrom said. “However, it is important to remember that this is only a proposed rule and it will be months before we know whether the final rule will actually include these changes.”

After the 60-day notice-and-comment period is over, the Department of Education will review the feedback they received before making a final ruling. The expected date of that final ruling is unknown.

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