By Meredith Howard | Assistant News Editor
Unprecedented regulations in federal Title IX law that went into effect Aug. 14 have led Baylor to create the new Equity, Civil Rights, and Title IX Office in order to investigate misconduct that’s no longer covered by federal Title IX law.
The system will replace the former one that dealt only with sexual misconduct that was included in Title IX. The definitions of sexual assault and sexual harassment have been significantly narrowed, leaving some survivors with no federal protection.
For example, sexual harassment is now strictly defined as an action “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education.” This is more specific than previous guidelines listed in the link above.
Additionally, domestic violence, dating violence and stalking are now considered to be sexual harassment under the law, where they were previously designated as assault.
According to The Chronicle of Higher Education, “Many fear that the mandates are too burdensome and could dissuade sexual-assault victims from coming forward … But due-process supporters, who say Obama-era federal guidelines unfairly railroaded accused students, hailed the new rules when they were proposed, in 2018.”
Many major revisions were made in Title IX law this year, and Mount Vernon senior Kyla Wilson, the president of It’s On Us BU, said she was happy to see that Baylor was staying the same in some instances where colleges are being given discretion on how to conduct their offices.
“I definitely wasn’t surprised, but I was very excited that they were just truly keeping the best interest of our sexual assault survivors here on campus at heart, and that they were really just trying to maintain the same sense of safety [in] regards with reporting and just the different processes and things like that and just really trying to make sure that people will still feel comfortable going into the office,” Wilson said.
Wilson also said that while she approves of Baylor’s handling of the new law, she opposes the legislation itself, especially the provision requiring cross-examination.
“The entire point of Title IX, up until this point with the policy changes, has been to allow survivors to have an easier method of pursuing justice than our traditional justice system allows, simply because of the privacy and the precautions that Title IX takes in allowing survivors to have privacy and comfort,” Wilson said.
Wilson said she was worried that some survivors who choose Title IX over a criminal justice proceeding may not report now because of a narrowing gap between the processes.
“They [Title IX employees] are significantly more cautious of the mental ramifications that sexual assault may have on a person, and they put forth effort to ensure that the justice proceedings will be as least traumatic as possible, and part of the way that they have done that in the past is by not holding hearing-style, I don’t want to say interrogations, but honestly that’s what it seems like it will come down to under the new policy.”
Wilson said she thought the live hearing process seems like it will be “significantly more public proceeding” than the single investigator model.
“So that just seems like a very easy way to resurface trauma for survivors, whereas our old policies tried to avoid that at all costs,” Wilson said.
Baylor has transitioned to a new “Sexual and Interpersonal Misconduct Policy” to be in compliance with new regulations. Sexual misconduct is now split into two general categories at Baylor: Title IX misconduct and non-Title IX misconduct. Dr. Laura Johnson, Associate Vice President for Equity and Title IX, said the major differentiator between which category a certain report falls under relates more to the location than content of the incident.
One major development in Title IX law is that colleges and universities are no longer required to investigate reported off-campus incidents if they aren’t linked to a university-sponsored event. About 52% of undergraduate Baylor students lived off campus in the 2019-2020 academic year
The newly developed Equity, Civil Rights, and Title IX Office will investigate these off-campus reports as “non-Title IX misconduct” since they are no longer covered federally.
Another difference in the new Title IX law is that colleges may now elect to use a “clear and convincing” standard as opposed to the formerly required preponderance of evidence standard. “Clear and convincing” is a higher level of evidence, leaning closer to the legal standard yet not as strict as courts, and a preponderance of evidence means it is more likely than not that someone has committed an offense.
Baylor is electing to continue to use the standard of preponderance of evidence.
Other major changes in Title IX this year:
Colleges are no longer required to designate most faculty members as mandated reporters. Johnson said Baylor will still require the same faculty members to report misconduct as last year.
The single investigator model of investigations has been scratched, and investigators will no longer have the responsibility of making a finding and choosing sanctioning measures. Hearing officers will take on that role.
Colleges are now required to hold live hearings involving cross-examination, a process that survivor advocates have long opposed. A complainant and respondent will not cross-examine each other; an adviser will facilitate the discussion. Colleges will have to provide advisers for students who do not elect one of their own choice. Johnson said Baylor was still working out how to provide an adviser under this circumstance. She said that most students come with an adviser. Data is not available to confirm how many students have their own adviser.
The previously recommended timeline for investigations has been nixed. Johnson said the old timeline was “nearly impossible” to meet, and that Baylor will now provide a 90-day estimate for the fact-gathering portion of investigations. The hearing process could take longer according to Johnson, because of conflicting schedules of involved parties.
Videoconference will be an acceptable platform for Title IX hearings.
Overall, Baylor will be investigating the same misconduct it did last semester, just between the two systems of Title IX misconduct v. non-Title IX misconduct.