Monday, March 25, 2019

Title IX: Trinity Needs to Recognize Due Process

Daniel Nesbitt ’22

Staff Writer

In the Feb. 12 edition of the Tripod, I examined in detail the first half of Trinity’s official response to the Department of Education’s (DoED) proposed Title IX changes. This piece examines the latter half of the College’s response.

The College enumerates four more concerns, the first of which is a provision within Section 106.44(b)(2), “which would require Title IX coordinators to bring certain formal complaints automatically.” In this case the “certain” complaints only apply to cases in which a Title IX coordinator receives multiple complaints about one individual’s conduct. Trinity’s objections, in this case, are well-founded as complainants should always have the option to remain anonymous. As discussed in my previous article, the right to anonymity is a building block on which ‘exceptions’ should be built – not the other way around. However, should the DoED revise the provision to include exceptions of anonymity, the College ought to support the amended provision.

Secondly, the College takes issue with Section 106.45(b)(3), “which would require recipients to dismiss a formal complaint if the conduct alleged by the complainant ‘would not constitute sexual harassment as defined…even if proved or did not occur within the recipient’s program or activity.’” In this instance, Trinity grossly misinterprets the proposed provision. This provision simply requires complaint recipients to learn to apply a clear and well-established legal standard that has been in place for 20 years (see Davis v. Monroe County Board of Education (1999); More on this later). Furthermore, recipients must only discern whether the alleged behavior as claimed by the complainant, would rise to the Davis standard. If the behavioral allegation does not meet the Davis standard of harassment, then there is no need to have a full fact-finding process at all. The College, for some reason, seems to believe that an extensive investigation and fact-finding process is somehow needed to determine whether reported behavior meets the legal standard – investigations should be conducted to the degree necessary to figure out whether the alleged behavior meets the Davis standard. A full investigation is necessary only after an allegation is deemed to constitute harassment under this standard. Once again, the College’s objections are ill-founded. 

Third, Trinity objects to the implementation of the Davis standard itself found in Section 106.30. In Davis, the Court defined sexual harassment in an educational environment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” The College mischaracterizes the Davis standard, arguing it “would narrow the definition of sexual harassment.” The proposed regulations do not “narrow” the definition of harassment, rather they restate the definition as established by the Supreme Court and reiterated repeatedly by the courts for 20 years. The Davis standard provides students, faculty, and administrators with a clear and precise understanding of what constitutes sexual harassment, resulting in less ambiguity and uncertainty. 

Lastly, the College objects to a provision in “Section 106.44(a), which limits an institution’s jurisdiction to which Title IX policies would apply to conduct that occurs ‘within its education program or activity.’” Trinity argues, “if cases are limited based on jurisdiction, then it is highly plausible that incidents involving members of an academic community might very well go unreported.” This argument is perplexing, as the College seems to imply that there ought to be no limits placed on its jurisdiction to ensure that all incidents are reported. However, to have no limits on its jurisdiction would be absurd. Furthermore, “conduct that occurs ‘within its education program or activity,’” can be interpreted quite expansively. While the College objects to this new, limited jurisdiction, the College fails to paint a clear picture as to what an optimal jurisdiction would be. Lastly, there is nothing in the regulations that prohibits Trinity from providing non-punitive measures to students affected by alleged wrongdoing outside Trinity “education programs or activities.” These non-punitive support measures should be strengthened and made available to students.

Trinity’s objections to the DoED’s proposed changes are, without a doubt, well-intentioned. While the intent is laudable, Trinity’s current procedures fail to provide both complainants and respondents with the procedural due-process protections fundamental to any fair adjudication process. As I have written before, protecting the rights of all involved parties and providing support for students affected by sexual misconduct are not mutually exclusive. Trinity can provide more fairness in these cases while still providing as much support as they want to provide. It is in Trinity’s best interest to adopt the DoED’s proposed changes because improving fairness and due process is the right thing to do. 

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