Brendan W. Clark ’21
Trinity College revised its policy on sexual harassment Friday morning, issuing interim guidance to the community following an announcement from the Department of Justice in May that set an Aug. 14 deadline to bring policies into compliance. That announcement, spearheaded by President Donald Trump and Secretary of Education Betsy DeVos, requires institutions that receive federal funding to comply with new Trump-administration regulations governing Title IX and sexual misconduct investigations.
Title IX, a landmark piece of legislation aimed at ensuring equal educational opportunities for all students, grew to develop controversy in athletics and has seen various treatments under Republican and Democratic administrations. Beginning in 2011 under the Obama administration, Title IX and the adjudication process on college campuses was changed markedly. Compliance with Title IX is mandatory and is tied to federal funding that College’s receive through students’ participation in federal financial aid programs.
Enforcement of Title IX is overseen by the Department of Education’s Office for Civil Rights (OCR), led by Principal Deputy Assistant Secretary for Civil Rights Kimberly Richey since the resignation of Trump-appointee Kenneth Marcusin late July.
In an email to the community Friday morning, College General Counsel Dickens Mathieu and a committee of faculty, staff, and students stressed that “although the legal process that culminated in the new rules lasted nearly three years, the federal government imposed a deadline of Aug. 14 as a non-negotiable effective date.” Because of this change on short notice, Mathieu indicated that the guidance would be adopted as “interim policy, to be amended as appropriate in the months ahead.” Mathieu also noted that the committee will “remain intact until the policy is finalized,” which would likely be by the “end of the coming semester.” Further, Mathieu noted that the details of how individual community members could provide feedback are “yet to be determined.”
The committee’s revisions were required to ensure that Trinity’s policy adhered with the Department of Education’s Title IX Final Rule and its various issues and requirements. A summary of those rule changes which guided the committee’s decision is available here.
The Tripod spoke with Mathieu, who co-chaired the committee which revised the policy this summer with Vice President for Student Success and Enrollment Management Joe DiChristina. Mathieu indicated that the “two most substantive changes relate to scope and process,” noting that the new policy prohibits “sexual harassment” as defined in the regulations, moving away from Trinity’s 2015 policy which prohibited a “broad scope of ‘sexual misconduct.’” Mathieu also noted that the investigation process may “no longer depend upon a single investigator to handle all fact finding,” as the new regulations permit only the hearing panel to decide cases.
While the Trump administration’s guidance permits institutions to use the more stringent “clear and convincing” evidence standard (approximately 70%-75%, highly and substantially more likely to be true than untrue), Mathieu stated that Trinity has maintained its “preponderance of the evidence” standard (51%, slightly more likely that it is true than untrue) for cases decided under the Interim Policy on Sexual Harassment.
The Tripod also spoke with a member of the committee, Associate Professor of Legal and Policy Studies Adrienne Fulco, about the changes to the policy. She stressed that the “COVID emergency made the process much more difficult” and echoed Mathieu’s comments about the difficulty of ensuring compliance within a limited time frame. Still, Fulco noted the committee’s hard work and praised its “open and fair process” in making the mandatory federal compliance changes.
Trump’s policy changes, according to a Department of Education statement, restore “fairness on college and university campuses by upholding all students’ right to written notice of allegations, the right to an advisor, and the right to submit, cross-examine, and challenge evidence at a live hearing.” The Trump changes have been met with trepidation in some circles, particularly with their implementation during the continuation of the 2020 coronavirus pandemic.
“The changes were all changes that had to be made to ensure Trinity was in compliance,” Fulco added, noting that the narrowing of the definition of sexual harassment, for instance, was “made on the basis of the new federal definition.”
@trinsurvivors, an activist Instagram account with a stated aim of exposing sexual misconduct on Trinity’s campus, released a set of demands earlier this summer. Mathieu indicated that the committee was aware of those demands and acknowledged that they “discussed the comments and demands at several of its meetings.”
Fulco, who teaches a course on Title IX in the Public Policy and Law Department, noted that her participation on the committee will “inform the way I teach my class.”
President of the College Joanne Berger-Sweeney had previously denounced the Trump administration’s proposed changes in a letter from January 2019 to the Department of Education. Mathieu added that the committee believes “that our previous policy was fair and equitable to both parties,” noting that the revised policy “is even more explicit in that regard.”
Trinity’s previous policy, adopted in August 2015 with suggestions from the Task Force on the Prevention of Sexual Misconduct and a working group, was co-chaired by President of the College Joanne Berger-Sweeney and then-Vice President for Diversity, Equity, and Inclusion Karla Spurlock Evans. The Task Force concurrently offered a report on issues related to sexual assault and misconduct at Trinity.
While the guidance is interim, Fulco noted that “everyone is more committed to finding more opportunities to broadly educate the Trinity community and integrate the discussion of Title IX into the community.” “It is about being the community we want to be,” Fulco continued, speaking of the aspirations of Title IX to advance educational equity for all students and the value of education about Title IX’s requirements.
The Tripod has reviewed the interim policy and identified the most significant changes below. You can also read the 2015 policy (as revised in 2018 and August 2019, respectively) in full here and the 2020 interim policy here.
Changes to Definition of “Sexual Harassment” and Removal of Certain Classifications from Coverage Under the Policy:
Trinity’s 2015 policy took a broad stance on what conduct constituted sexual harassment and assault. The 2015 definition of “sexual harassment” included “unwelcome sexual advances, unwelcome requests for sexual favors, and other behavior of a sexual nature or based on a person’s sex, whether it occurs on or off campus.”
This was implicated when “submission…is made a condition…of an individual’s employment or educational opportunities,” “is used as a factor in or basis for decisions affecting an individual’s employment or educational opportunities,” and when “such conduct as the purpose or effect of unreasonably interfering with an individual’s employment or education opportunities by creating an intimidating, hostile, or offensive education, living, or work environment.”
Under the new 2020 policy, sexual harassment is “defined in three categories: (1) Hostile Environment Sexual Harassment; (2) Quid pro Quo Sexual Harassment; and (3) four specific offenses prohibited under the Clery Act, as amended by the Violence Against Women Act (VAWA) – Sexual Assault, Dating Violence, Domestic Violence, and Stalking.”
The new definition is implicated when an individual’s conduct or actions “has the purpose or effect of unreasonably interfering with an individual’s employment or educational opportunities by creating an intimidating, hostile, or offensive educational, living, or work environment.”
The 2020 policy also removes “induced incapacitation,” “coercion,” “sexual exploitation,” “intimate partner violence,” and “improper romantic relationships” from coverage and review under the Interim Policy On Sexual Harassment, but acknowledges that “Trinity College prohibits” these forms and that violations may be “subject to investigation and adjudication under the Student Handbook, Employee Handbook, or Faculty Manual.”
Addition of Allegations Potentially Falling Under Two Policies Provision:
The removal of certain definitions notwithstanding, the 2020 policy includes a caveat provision which would permit the College to apply its sexual harassment policy to “sex-based conduct that would not constitute sexual harassment.” Under the “Allegations Potentially Falling Under Two Policies” provision, if sexual harassment is a verified allegation of the offense, other sex-based misconduct in the same offense, even if not falling under the definition of “sexual harassment,” may be subject to the same adjudication process. It was not immediately clear if this would permit other charges outside of the policy
Changes to Scope of the Policy:
The 2015 policy applied to “all those who participate in the College’s programs and activities, whether on or off campus, including study-away programs.” The 2020 interim policy similarly applies, though coverage for “study-away programs” has been excluded from the scope. The 2020 policy indicates that the College “does not have jurisdiction to investigate reported incidents…when the incident did not occur on campus or in connection with the College’s domestic program, activity, or employment.”
Addition of Definition of “Education Program or Activity”:
The 2020 policy adds a new definition for “education program or activity.” Activities or programs falling under that definition direct when Trinity’s Interim Policy may become applicable. The new classifications include “any on-campus premises,” “any off-campus premises over which the College has substantial control, including buildings or property owned or controlled by a recognized student organization,” and “activity occurring within computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in or connected to the operations of the College’s programs and activities over which the College has substantial control.”
Changes to Jurisdiction:
As an additional step in the process, under the 2020 interim policy Trinity will first have to establish jurisdiction subject to the following constraints: the conduct “occurred on or after August 14, 2020,” the conduct “is alleged to have occurred in the United States,” the conduct “is alleged to have occurred within the College’s education program or activity,” and the conduct “if true, would constitute sexual harassment as defined in the policy.” All of the above elements must be met in order for an investigation to proceed. As in the changes to policy scope, incidents on study abroad programs do not appear eligible for adjudication under Trinity’s Interim Policy.
Addition of “Mandatory” and “Discretionary” Dismissal Procedures:
Absent from the 2015 policy, the 2020 interim policy introduces new procedures for dismissals of complaints. Complaints will be subject to “mandatory dismissal,” subject to the right of appeal, if any of the jurisdiction conditions are not met.
The Title IX Coordinator also retains a right to “discretionary dismissal” if a Complainant “wishes to withdraw the formal complaint,” the “Respondent is no longer enrolled or employed by the College,” and “if specific circumstances prevent the College from gathering evidence sufficient to reach a determination.” Under discretionary dismissal, the College could not bring an action against a student who had transferred to another institution prior to or during the pendency of an investigation.
Addition of “Informal Resolution” Option:
The 2020 interim guidance affords both the traditional “formal resolution” through hearing and an “informal resolution,” similar to mediation where the parties waive their rights to formal adjudication and “choose a mutually-agreeable and reasonable remedy such as education and training.”
An informal resolution will not require face-to-face contact between any Complainant and Respondent and the completion of informal resolution shall limit any subsequent appeals. Confidentiality may also be limited in informal resolution proceedings, as the College may “determine that the benefits of keeping informal resolution outcomes confidential are outweighed by the need for the educational community to have information about the number or type of sexual harassment being resolved.”
Changes to Notice and Investigation Processes:
Notice procedures are now more exhaustive, requiring the addition “the allegations potentially constituting sexual harassment, and sufficient details known at the time the Notice is issued.” This includes “the identities of the parties involved in the incident.”
Additionally, under the interim policy, the “advisor of their choice” that each party is permitted to bring “may be, but is not required to be, an attorney.” The notice is also required to outline evidence procedures and the College must provide “ongoing notice” if it investigates incidents outside of the allegations contained in the original Notice.
In the 2015 policy, no provision existed relative to previous sexual histories of the Complainant and Respondent. Under the new policy, a Complainant or Respondent’s prior sexual history may be considered as evidence in limited circumstances, viz. “where there was a prior or ongoing relationship between the Complainant and Respondent…[where] the prior sexual history between the parties may be relevant to assess the manner and nature of communications between the parties.” It may also be admitted to “analyze allegations of a pattern or practice of past conduct which is similar in nature by the respondent.”
While the College’s previous 2015 policy did not permit the imposition of sanctions until after the conclusion of the investigation as a matter of practice, the 2020 interim policy explicitly prohibits the imposition of “disciplinary sanctions on a Respondent before completion of the investigation and adjudication process.”
Complainant’s and Respondent’s also have the ability to seek review of conflict of interest claims against the Title IX Coordinator, Deputy Title IX Coordinator, or any other individual involved in the adjudication process.
Investigators, whether College officials or an outside party, are required under the 2020 policy to disclose exculpatory evidence to both the Complainant and Respondent, including “discrepancies in witness statements, gaps, inconsistencies, or conflicts in the evidence.”
These “impartial facilitators,” Mathieu continued, “need not have legal training, although that would probably be a plus. The key qualifications for this role include experience in mediating disputes, and training in sexual harassment.”
The 2015 policy permitted an investigator to include “the investigator’s finding of whether the allegations of the Complaint are substantiated.” Under the 2020 policy, the Title IX Coordinator or investigator will not make a suggestion of or reach a conclusion after the fact-finding process has been completed. Instead, they will submit the information to the Hearing Panel without “the investigator’s own conclusions regarding whether the allegations are substantiated, nor draw other conclusions that could reasonably be viewed as directing the outcome of the case.”
Changes to Administrative Panel Composition and Challenges for Cause:
Under the 2020 policy, the Administrative Panel must consist of “three members, two of whom must be College employees.” The policy also permits that “whenever possible, at least one member of the panel will be from the same job classification (i.e., staff or faculty) as the Respondent.” The Hearing Convener of the panel “need not be a member of the College community.”
Both the Complainant and Respondent also have the opportunity under the 2020 policy to bring a challenge for cause and request that a “proposed panel member be recused for cause, conflict of interest, or bias.” Challenges for cause will be heard and determined by the Title IX Coordinator or their designee.
Right of Parties to Attend Live Hearing:
The 2015 policy required that the administrative panel meet in a “closed session” to make its determinations based on the evidence presented in written statements, testimonies, and other documentation. The 2020 policy requires a “hearing for the presentation of live testimony and examination of relevant witnesses” which the Respondent and Complainant are permitted to attend. The hearing may be in-person or virtual “at the College’s discretion.”
Right to Cross-Examine Witnesses Afforded to Complainant and Respondent:
Under the 2020 policy, witnesses may be subject to cross-examination by both the Complainant and Respondent and/or their respective advisors and counsel. Formal rules of evidence, however, “do not apply in the investigation and adjudication process.”
Expansion of Role of Attorney as Counsel to Complainant and Respondent:
The 2015 policy explicitly prohibited the advisor permitted to accompany a Complainant or Respondent to a hearing from acting “as speaking advocates at a meeting or proceeding.” Under the 2020 interim policy, attorneys or others with formal legal training may conduct the “examination of witnesses during a live hearing.”
The College also indicated that it may “support and help parties secure advisers, when needed.” It was not immediately clear whether this meant that the College may provide monies for an individual to retain legal counsel if they cannot afford to do so privately.
While Mathieu could not confirm, he did indicate that changes to the Student Code of Conduct may be forthcoming permitting an attorney as an advisor, as the “Office of Student Life intends to consult SGA to set in motion a process for reviewing potential changes to the student code of conduct.” Mathieu continued, indicating that he expects “this issue will be part of that review.”
Respondent’s Presumption of Innocence:
The 2020 interim policy provides that the “Respondent is presumed not responsible for the charges unless found responsible following the completion of the investigation and adjudication process.” It also explicitly notes that “Throughout the hearing, the Respondent will enjoy the presumption of no responsibility for the charges.” Under the 2015 policy, no statement was made relative to a presumption of innocence against the Respondent.
Clarification on Use of No Contact Orders:
The 2015 policy permitted “No Contact Orders’ as an “interim measure” that “may remain effective permanently regardless of the final case outcome.” The 2020 policy clarifies that a No Contact Order does “not become a part of an individual’s conduct record” and that any order that is “long standing will be reviewed at least every 4 months with each party.” Both parties must also be consulted prior to the College’s dismissal of a No Contact Order under the interim policy.