Last Friday, the U.S. Department of Education (DOE) issued forth new Title IX guidance as they rescinded 2011 and 2014 Obama-era Title IX guidelines. The Grinnell College Title IX office released a special campus memo later that day, assuring the campus community that Grinnell College’s Title IX adjudication process will remain largely unchanged by the new guidance. Additionally, the memo noted that the College will look into informal resolutions like mediation in Title IX cases, which is newly allowed with the guidance changes.
In particular, the new guidance allows colleges to determine the standard of evidence in Title IX cases, meaning they may now require clear and convincing evidence instead of a preponderance of the evidence (more likely than not). Grinnell emphasized in the special campus memo that it would continue to judge cases according to a preponderance of the evidence, the standard for all civil cases. Additionally, the new guidance permits colleges to pursue informal resolutions such as mediation, establishes an appeals process for disciplinary sanctions and establishes more protections for accused students. It also rescinds the Obama-era guidance that required Title IX cases to reach a conclusion within a 60-day period or else provide a strong reason to extend the case. Finally, the new guidance permits colleges to only address incidents that occur on campus, whereas previously colleges also needed to consider events off-campus and prior to a student’s enrollment in college.
“The main focus of the new guidance and the rescinding of the old guidance is looking at the disciplinary process,” said Angela Voos, Grinnell College’s Title IX coordinator. “Our disciplinary processes already addressed the issue that they’re looking at — that is, do you have a fair and thorough and impartial way of investigating and adjudicating.”
The new guidance, initiated by Secretary of Education Betsy Devos, does not require colleges to change their policies or practices. Instead, Voos emphasized, “most of this guidance is about choices. It’s permitting some scaling back — we’re not going to scale back.”
Although the DOE largely decreases the accountability for colleges and protections for complainants with these new measures, Grinnell College affirmed that it will continue to operate under the Obama-era guidance.
“I think colleges have to be accountable, and I think that was a very positive outcome of the Obama administration’s guidances,” Voos said. “It put a spotlight on colleges and universities to make sure that the processes were fair and prompt, and that colleges understand their responsibility and accountability. … [The Trump] administration is focusing a lot on the adjudicative process, to make sure that due process is being served.”
The new guidelines raise questions as to how the recommended practices might play out on college campuses. In particular, the provision for informal resolutions such as mediation, wherein a mediator assists the complainant and the respondent in reaching a mutual resolution in a case of sexual assault or sexual violence, has stumped college administrators and students alike.
“The 2011 Dear Colleague Letter said [mediation] is not appropriate even on a voluntary basis, and now they’re saying it could be used,” said Deputy Title IX coordinator Bailey Asberry.
Although the College will be looking into the implications of mediation as a practice for Title IX cases, Voos assured that the College will not actively pursue mediation. A formal notice-and-comment period is expected to soon follow the new regulations, during which the College will hopefully clarify the significance of the mediation provision.
“In our policy [mediation] is just not available, and we won’t use it for sexual violence,” Voos said. “The guidance is saying you could. So we’ll think about that. At this point … we would still choose to not use mediation for allegations of sexual violence.”
For student activists who have dedicated themselves to Title IX cases and survivors’ rights, the mediation provision is especially troubling. Leah Barr ’18, a previous co-leader of Dissenting Voices who has done extensive research on the handling of Title IX cases at Grinnell College and Carleton College, explained why mediation has typically been strongly discouraged.
“The fear for me in mediation is that the respondent and the complainant will have to be face to face, and you were not allowed to do that under the guidance from the Obama era,” Barr said.
Although Barr was somewhat reassured by the College’s memo reaffirming their dedication to the Obama-era guidance, she expressed concern that the Grinnell Title IX office has not been following those measures in the first place.
“I think they weren’t using that standard before,” Barr said about the preponderance of the evidence standard in particular. “I knew about specific cases where there was so much evidence and people were still not being found responsible. But at least the school is recognizing that the standard of evidence is important.”
In addition to the standard of evidence, Barr listed Grinnell’s failure to issue timely Clery warnings and Voos’s additional position as Chief of Staff to the president’s office as examples of the College’s failure to conform exactly to Obama-era Title IX guidance.
Should the DOE release mandatory new policy, the College will keep the campus community aware of any impacts to Title IX at Grinnell. In addition, the Grinnell Title IX office will soon be releasing an updated version of its Title IX policy, which does not make any policy changes but instead clarifies the adjudication and informal resolution process to the reader. This policy will be released as soon as an additional party has looked over and approved its contents.
aIt’s permitting some scaling back — we’re not going to scale back.”
Although the DOE largely decreases the accountability for colleges and protections for complainants with these new measures, Grinnell College affirmed that it will continue to operate under the Obama-era guidance.
“I think colleges have to be accountable, and I think that was a very positive outcome of the Obama administration’s guidances,” Voos said. “It put a spotlight on colleges and universities to make sure that the processes were fair and prompt, and that colleges understand their responsibility and accountability. … [The Trump] administration is focusing a lot on the adjudicative process, to make sure that due process is being served.”
The new guidelines raise questions as to how the recommended practices might play out on college campuses. In particular, the provision for informal resolutions such as mediation, wherein a mediator assists the complainant and the accused in reaching a mutual resolution in a case of sexual assault or sexual violence, has stumped college administrators and students alike.
“The 2011 Dear Colleague Letter said [mediation] is not appropriate even on a voluntary basis, and now they’re saying it could be used,” said Deputy Title IX coordinator Bailey Asberry.
Although the College will be looking into the implications of mediation as a practice for Title IX cases, Voos assured that the College will not actively pursue mediation. A formal notice-and-comment period is expected to soon follow the new regulations, during which the College will hopefully clarify the significance of the mediation provision.
“In our policy [mediation] is just not available, and we won’t use it for sexual violence,” Voos said. “The guidance is saying you could. So we’ll think about that. At this point … we would still choose to not use mediation.”
For student activists who have dedicated themselves to Title IX cases and survivors’ rights, the mediation provision is especially troubling. Leah Barr ’18, a previous co-leader of Dissenting Voices who has done extensive research on the handling of Title IX cases at Grinnell College and Carleton College, explained why mediation has typically been strongly discouraged.
“The fear for me in mediation is that the respondent and the complainant will have to be face to face, and you were not allowed to do that under the guidance from the Obama era,” Barr said.
Although Barr was somewhat reassured by the College’s memo reaffirming their dedication to the Obama-era guidance, she expressed concern that the Grinnell Title IX office was not following those measures in the first place.
“I think they weren’t using that standard before,” Barr said about the preponderance of the evidence standard in particular. “I knew about specific cases where there was so much evidence and people were still not being found responsible. But at least the school is recognizing that like the standard of evidence is important.”
In addition to the standard of evidence, Barr listed Grinnell’s failure to issue timely Clery warnings and Voos’s additional position as Chief of Staff to the president’s office as examples of Grinnell College’s failure to conform exactly to Obama-era Title IX guidance.
Should the DOE release mandatory new policy, the College will keep the campus community aware of any impacts to Title IX at Grinnell. In addition, the Grinnell Title IX office will soon be releasing an updated version of its Title IX policy, which does not make any policy changes but instead clarifies the adjudication and informal resolution process to the reader. This policy will be released as soon as an additional party has looked over and approved its contents.
