BRENDAN CLARK ’21
Trinity College, like other institutions of higher education, is preparing to consider the impact of changes to Title IX regulations announced by the Department of Education’s Office for Civil Rights on Nov. 16. These regulations, if approved, supersede the interim guidance released in September of 2017, which itself repealed Obama-era regulations established in 2011. Trinity College has not yet adopted or indicated its compliance with the proposed regulations.
Changes to the previous regulations, according to a fact sheet from the Department of Education, will include the adoption of “a clear definition of sexual harassment actionable under Title IX,” “a presumption of innocence throughout the grievance process,” “a prohibition on the single-investigator model,” “the opportunity to test and adoption of “the clear and convincing or preponderance of the evidence standard, subject to limitations,” among others.
The Department of Education, in a Nov. 16 press release, stated that the “proposed rule seeks to ensure that all schools clearly understand their legal obligations under Title IX and that all students clearly understand their options and rights.” U.S. Secretary of Education Betsy DeVos, speaking on the changes to due process regulations, emphasized that “Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined.”
Cross-examination and the adoption of clear and convincing standards have been especially contentious issues for both the accused and victims. Anurima Bjargava, a former employee of the Department of Justice under Obama, told The Wall Street Journal on Oct. 31 that cross-examination can be difficult because “If someone tells their story and then they need to be questioned on it, that can be an incredibly invasive and traumatizing experience.” Conversely, Joe Cohn lauded cross-examination implementation in Title IX proceedings, telling the Journal that “Courts have recognized that cross-examination is an essential part of the process of figuring out the truth in cases where credibility is a factor.”
Existing regulations under the Obama administration mandated the use of the preponderance of the evidence standard, required schools to act on complaints promptly through regulated tribunals and investigations, and required the appointment of Title IX coordinators.
Trinity College President and Professor of Neuroscience Joanne Berger-Sweeney stated in an email to the Trinity community on Nov. 28 that “we are reviewing the proposals in detail and considering them carefully in the context of our existing policies.” Berger-Sweeney indicated that, pursuant to federal laws governing the 60-day and rule-making period, Trinity “certainly anticipate[s] submitting a response” and encouraged other interested stakeholders to do so as well.
When asked for comment, Associate Director of Human Resources and Title IX Coordinator Venice Ross stated that “Trinity will continue to use our current policy on sexual misconduct to address sexual misconduct to address sexual misconduct reports and investigations.” While the regulations are not yet law until after the comment period, Ross added that “we are very committed to looking at these proposals in the context of our current policies and procedures and ensuring that we create a safe community for everyone.” Ross replaced Timothy Dunn as Title IX Coordinator, who left Trinity to become Title IX and Bias Harassment Coordinator at Macalester College in St. Paul, Minnesota in Feb. 2018.
Berger-Sweeney reaffirmed Trinity’s commitment to “the work to end sexual and gender-based misconduct at Trinity.” Berger-Sweeney added that this work includes “prevention and education efforts, support and resources, and fair and effective processes for adjudicating complaints.”
Title IX, a part of the Education Amendments of 1972, bars gender discrimination in elementary schools, secondary schools, and colleges which are recipients of federal funding.