By Chelsea Wiggins, College and Prevention Policy Attorney
As has been demonstrated by a wide body of research over the course of the past few decades, sexual assault is persistently a major problem at our nation’s colleges and universities. According to the Bureau of Justice Statistics, 21% of female students and 7% of male students will experience a sexual assault during college. Yet in spite of those staggering numbers, student sexual assault reporting rates are extremely low.
Title IX of the Education Amendments of 1972 is the primary federal law that deals with college sexual violence, and requires all colleges and universities receiving federal funding to have sexual misconduct policies. Institutional policies that demonstrate a commitment to prompt, equitable responses to incidents of campus sexual violence can go a long way in creating an environment in which students feel safe reporting sexual assault to their administration. Recent changes to Title IX guidance send the exact opposite message, and have left students and institutions of higher education alike confused and uncertain about the future of Title IX enforcement.
This fall, the Department of Education repealed two major pieces of Title IX guidance issued during President Obama’s administration: a 2011 Dear Colleague Letter and a 2014 document with questions and answers about Title IX and sexual violence. At the same time, the Department issued new “interim guidance,” which contains several disconcerting differences from the now-repealed guidance issued under President Obama. Some of the changes made include the following:
Mediation: The newly-issued guidance says that mediation can be an appropriate option for resolving sexual misconduct complaints. However, 2001 Title IX guidance, which the newly-issued guidance specifically states still stands, states that mediation is never appropriate in cases of sexual assault, even on a voluntary basis. Asking sexual assault survivors to work out an assault with their attacker is wildly inappropriate and leaves survivors vulnerable to further trauma and other detrimental impacts on their lives. The lack of clarity with regard to mediation raises concerns that schools will choose to use this inappropriate measure to resolve sexual assault complaints.
No Time Frame for Investigations: Under the now-repealed 2011 and 2014 guidance, schools were expected to complete sexual misconduct investigations within a 60-day timeframe, ensuring they fulfilled the legal requirements of Title IX that investigations be “prompt.” Newly-issued guidance places no limitations whatsoever on the duration of a school’s investigation. Institutions are free to drag out investigations as long as they like, prolonging survivor suffering; schools could even drag their feet on investigations until the students involved have graduated or dropped out.
Inequitable Appeals: Guidance issued under President Obama required that if schools chose to offer an option of appeal during the sexual misconduct investigation process, they had to make that option equally available to all parties. Under the newly-issued guidance, schools may offer appeals to both parties, or they can offer them only to accused students.
Evidentiary Standard: Schools are now free to use either a preponderance of the evidence or a higher, clear and convincing standard of evidence during sexual assault investigations. Whatever standard a school uses in other misconduct investigations, it must use in cases of sexual misconduct as well.
Now more than ever, students on our college campuses need to know that their institutions are committed to protecting students’ rights and keeping them safe. MCASA calls on every Maryland college and university to affirm its commitment to Title IX, and to sexual assault survivors. Given the changing landscape of Title IX enforcement at the federal level, it’s imperative that individual institutions and states do their part to protect survivors. With that in mind, legislation will be introduced in the 2018 Maryland legislative session to do just that. We hope we can count on each of you to stand up in support of student survivors across our great state.
 Christopher Krebs, et al., Campus Climate Survey Validation Study Final Technical Report, at 73-74 (2016), available at https://www.bjs.gov/content/pub/pdf/ccsvsftr.pdf.