Hanna brought up off-campus fraternity houses as places where the college ought to be on the hook. The new regulations say that the incident has to be “within its program or activity.” There’s a long discussion in the document about what that means. They want the proposed standards to align with court decisions, and they cite this one approvingly:
I believe the standards intend to include off-campus fraternities as places where a college has disciplinary authority under the guideline.
Note that not all off-campus fraternities have the kind of connection to the school that allows the school disciplinary authority over them.
For example, at University of Colorado, there are 11 recognized or affiliated fraternities and 21 completely off-campus unrecognized and unaffiliated fraternities.
Some people have alleged that this proposal allows accused students to directly question accusers. This is incorrect. It specifically disallows accused students themselves from questioning accusers; their advisors or lawyers must do the questioning. If a student doesn’t have an advisor, one must be appointed for them.
Irrelevant questions about an accuser’s sexual history are disallowed:
If one or the other party requests it, during the live hearing the accuser and the accused can be in separate locations, with a video link or something similar.
And then the question is, ought the college have disciplinary authority over incidents in venues that are in no way under their control?
I think it’s all quite well reasoned and it is good to have it go through all the appropriate channels. I cannot believe it took so many years. Not much changed from the “leaked” documents although it appears they crafted tighter language around some of the things that were pointed out which is good. I’m OK with a distinction between sororities, fraternities and college affinity houses that are significantly connected the the college vs. those that are not recognized or affiliated. None of any of this precludes restraining orders or criminal complaints that are available to everyone whether living on or off campus of occurring on a college campus grounds or facilities.
Other points I thought were interesting:
seems to make the single investigator model a non-starter as the person who decides on consequences can’t be the same person who did the information gathering
level of proof would be consistent across the board. So Title IX complaints have to be handled in the same manner as, say, plagiarism—so if there is clear and convincing for plagiarism, there has to be clear and convincing for sexual harassment/assault. I don’t know if this means colleges will make everything clear and convincing or make everything the lower standard of preponderance.
Also, if a prof or employee is charged under Title IX, they would have to have the same standard as a student. I read somewhere that with union members, the standard is clear and convincing so I don’t know if that would also influence which way colleges have to go (but I am not ironclad on this, so if anyone knows better please correct me).
I’m still thinking about this, but so far I incline to agreeing that a college should be able to discipline students for conduct that occurs at a sanctioned fraternity, but not at an off-campus bar or an unsanctioned fraternity. I presume that colleges are also allowed to expel students who are found to have engaged in criminal conduct, whether of a sexual nature or not.
I remain concerned about this:
particularly since the document says that the previous guidelines “captured too wide a range of misconduct.” What kind of misconduct is no longer considered sexual harassment?
I looked up sexual assault as defined by 34 CFR 668.46(a):
“Fondling” is defined as “the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental incapacity.” I can’t figure out whether touching someone over their clothes counts as fondling.
“Hanna brought up off-campus fraternity houses as places where the college ought to be on the hook.”
I’d be broader than that…I think off-campus housing in town ought to be covered, at least while school is in session. If a fellow student grabs me and rapes me in a bar, I ought to be able to complain to the college.
If you are raped in a bar, call the police and go to the nearest emergency room. Don’t waste time with college procedures.
@roycroftmom, the question is why a student attacking a fellow student in her off-campus apartment ought to be treated differently from that same student attacking that same fellow student in her dorm room. The college would have pretty much the same ability to investigate and discipline the alleged attacker in both cases.
I think there is a reasonable difference between property owned by the college, and other, public space. Students can be assaulted by fellow students while at home thousands of miles from the university, or while on vacation abroad. If they are both enrolled, would the college have worldwide jurisdiction?
In the past, their identity as students of the same college could require that college to act. Could. Depends. Internationally? Dont think that was covered. Unless during a college sponsored program.
I think it is reasonable to allow institutions to insert themselves into actions that occur on their property. They can address a court ordered restraining order involving two students off campus on a case by case basis using the same guidelines as they do with two students living on campus that need to be separated as that seems a reasonable course of action.
There are many reasonable places to draw the line about where the college should respond to complaints between two students. The college town, during term time, is very reasonable to me. A college could pay attention to these disputes and still say that what happens in Alaska over Christmas break (that’s a real case from Stanford) is beyond their reach.
Nothing the college does supplants or prevents criminal and civil remedies as well.
I thought about that Alaska case also. To me it comes down to affording more protections to college students than locals so the campus boundaries and affiliated structures and trips seemed legally cleaner. I am probably not explaining this well but hopefully the gist of it makes sense.
I’ve been paying attention to social media and the people objecting to this proposal. They seem to be objecting to several things:
That colleges must allow a representative of the accused student to question the accuser (objectors say that the proposal allows the accused student him/herself to question the accuser, but this is incorrect)
That colleges are no longer responsible for off-campus incidents, as we’ve been discussing
That colleges are no longer liable for not handling a situation unless they are “deliberately indifferent”
Can anyone explain the third point? The document also spells out in considerable detail what the colleges have to do to respond to complaints, so when would this “deliberately indifferent” clause apply? Wouldn’t colleges also be on the hook if they failed to provide the due process as specified in the regulations?
I think it would only apply as a grievance if in fact a college failed to respond at all or were deliberately indifferent to the complaint if someone filed a complaint through proper channels. It would not apply if an accuser did not “like” the response received. If there is a response there is no deliberate indifference in my opinion e.g if the response was to offer counseling or mediation or change of schedule or change of housing there would be no deliberate indifference.
“when would this “deliberately indifferent” clause apply?”
I anticipate litigation on this question. “Deliberate indifference” is a legal term that will inevitably have different meanings in different states/federal circuits.
My rusty recollection is that “deliberate indifference” is usually a super high legal bar. Like, if a party was clearly negligent, that wouldn’t necessarily rise to the level of deliberate indifference. If a college made some halfhearted, incompetent attempt at a resolution, that would probably not be considered deliberate indifference.
This part of the regulations is all about protecting institutions’ financial interests, which is not what I had hoped to see.
I don’t think its saying indifferent.
"…must respond to incidents of sexual harassment consistent with Title IX’s prohibition against sex discrimination. The proposed regulations are intended to promote the purpose of Title IX by requiring recipients [colleges] to address sexual harassment, assisting and protecting victims of sexual harassment and ensuring that due process protections are in place for individuals accused of sexual harassment.
“The proposed regulations require schools to investigate and adjudicate formal complaints
of sexual harassment, and to treat complainants and respondents equally, giving each a
meaningful opportunity to participate in the investigation and requiring the recipient to
apply substantive and procedural safeguards that provide a predictable, consistent,
impartial process for both parties and increase the likelihood that the recipient will reach
a determination regarding the respondent’s responsibility based on objective standards
and relevant facts and evidence.”
And more. I see this as an attempt to support the intentions of the original T9. Any reference to precedent cases seems to use them to clarify T9, as subsequent court rulings do.