Secretary of Education Betsy DeVos rejected Obama-era guidance for how schools should respond to allegations of sexual misconduct. She issued new regulations in May. Photo by Evelyn Hockstein/Getty Images

Campus Life

BU Readies for Title IX Changes to Sexual Misconduct Regulations

Amid concerns the new rules will discourage victims from coming forward, BU officials vow to maintain aggressive enforcement

As the deadline approaches for compliance with new regulations governing campus sexual assault under Title IX of the Education Amendments Act of 1972, Boston University leaders are emphasizing the University’s commitment to ensuring that all members of the BU community are afforded an environment free from discrimination and harassment to work, study, and live in. 

The new regulations, which university administrators at BU and elsewhere fear may discourage victims of sexual misconduct from coming forward and make the investigation of misconduct covered by Title IX more difficult, were issued in May by US Education Secretary Betsy DeVos. Colleges and universities must comply with the law by August 14 or risk losing federal funds.

A letter sent on Monday to the BU community by Jean Morrison, provost and chief academic officer, and several other administrators says BU will make all of the changes required by the new law, and will continue to work toward reducing the rate of sexual misconduct in the University community through both prevention efforts and vigorous enforcement of its Sexual Misconduct/Title IX Policy. The letter, signed by Morrison, as well as Kenneth Elmore (Wheelock’87), associate provost and dean of students, Kenneth Freeman, vice president for human resources, ad interim, and Maureen O’Rourke, associate provost for faculty affairs, says administrators will reach out to the broader BU community during the fall semester and consider a wide range of questions associated with sexual assault, including a review of the report of the Working Group on Gender-Based Harassment Prevention. 

The letter noted that the US Department of Education’s changes to the Title IX regulations include:

• Substantially narrowing both the definition of sexual harassment that constitutes prohibited conduct under Title IX and the geographic scope of covered conduct;

• Requiring live hearings to adjudicate cases covered under Title IX; 

• Mandating that each party has an advisor at the hearing to conduct cross-examination.

Kim Randall, BU’s executive director of Equal Opportunity and Title IX coordinator, says the new regulations support the investigation of cases in which conduct is “severe, pervasive, and objectively offensive,” while BU’s existing policy uses a “severe or pervasive” standard, which allows investigators more latitude to follow up on allegations.

For the complete list of changes, see below under Title IX changes explained.

The new rules give schools the option of using a different standard of evidence to evaluate allegations. Previously used guidelines, issued by the Obama administration, instructed officials to use only a “preponderance of the evidence” standard, which based decisions on whether the evidence established that the alleged conduct was more probable than not. The new rules allow schools to determine guilt or innocence based on either the “preponderance of the evidence” standard, or a “clear and convincing” standard, which sets a higher burden of proof. 

Elmore, who cochairs with O’Rourke an ad hoc committee that will ensure BU’s compliance with the new rules, says he worries that the new requirements to conduct live hearings with cross-examinations (for resolving instances of sexual harassment) will create an intimidating setting that will deter students from reporting sexual harassment or sexual misconduct at all.

“We will not let that be the case,” says Elmore. “The additional federal rules and mandated procedures will still allow the University to investigate, and appropriately address, reported incidents of sexual assault, sexual violence, sexual exploitation, stalking, violence in relationships, and other forms of sexual harassment. The rules and procedures will also not stop the University from giving accused students notice of allegations against them and opportunities to also be heard.”

O’Rourke says there are several important BU policies concerning sexual misconduct that will not be affected by the new rules, and the University will continue to apply those unaffected policies. BU will, for example, continue to use a “preponderance of the evidence” standard; will require training on sexual misconduct prevention of faculty, staff, and students; will require that employees report instances of sexual misconduct; and will provide support to complainants and respondents.

Nathan Brewer, a BU Sexual Assault Response and Prevention Center (SARP) crisis counselor, says concern about the new Title IX guidelines is understandable, but regardless of how BU Title IX policy might change because of this new guidance, the services offered by SARP will remain unchanged. “Survivors of violence will continue to have access to specialized clinicians, who provide free, confidential counseling and accurate information,” says Brewer. “Survivors considering their options under the current or new BU policies can always call our 24/7 confidential crisis line. SARP is also committed to continuing our sexual misconduct awareness-raising efforts and prevention programming.” 

O’Rourke says another concern about the regulations at BU and elsewhere has been the timing of the rules change. “We are in the middle of a pandemic,” she says. “Usually in cases like this you have about eight months to comply. We have about three and this is a very difficult time for everyone.”

The American Council on Education (ACE) agrees. The council has asked the Department of Education to postpone the new rules until COVID-19 subsides, and several survivor groups and attorneys general from 18 states support that request.

“The issue here is not the merits of these particular regulatory proposals,” Ted Mitchell, ACE president, wrote to DeVos. “Rather, the issue is that given the serious disruptions caused by the COVID-19 pandemic, institutions simply do not have the capacity to implement these proposals at this time.”

BU first formally objected to the Title IX changes nearly two years ago, when they were proposed by DeVos. In January 2019, President Robert A. Brown wrote in a letter to the Department of Education that the proposed changes would deter victims of sexual misconduct from coming forward and would undermine the University’s efforts to “foster a campus environment that is free of harassment and discrimination.” The same week, the Association of Independent Colleges and Universities in Massachusetts (AICUM) and the Association of American Universities (AAU) filed comments expressing similar concerns. In the two and half years since the changes were proposed, the Department of Education received more than 120,000 comments from the public.

Critics of the Obama administration’s guidelines, which were issued as a Dear Colleague letter in 2011, complained that they encouraged colleges to over-enforce campus sexual misconduct, and led to students being unjustly removed from campuses for false accusations. DeVos rescinded the letter in 2017.

Title IX changes explained

BU Today asked Kim Randall, Boston University’s Title IX coordinator and the executive director of Equal Opportunity, to explain the specifics and significance of the Department of Education’s new regulations governing campus sexual assault under Title IX.

What are the differences between the Obama guidelines and the new regulations under President Trump?

Randall: There are many differences. Among the most important are these:

• The prior guidance required colleges and universities to address a broad range of sex-based misconduct. The new regulations have significantly narrowed the definition of sexual harassment, which does not include many of the types of sexual misconduct included under the prior guidance.

• The prior guidance did not restrict colleges and universities from addressing conduct that occurred outside of the United States (for example, conduct occurring at Study Abroad locations). The new regulations do not permit us to address conduct not occurring “against a person in the United States” under Title IX.

• The prior guidance allowed us to address sexual misconduct that created a hostile environment, even if the conduct occurred outside a University-related program or activity. For example, if a BU student or employee sexually assaulted another student or employee in an off-campus apartment, and the complainant was in fear of their safety on campus as a result, we were able to investigate the complaint and take appropriate action. The new regulations require that in order to address a sexual assault (or domestic violence, dating violence, stalking, or sexual harassment) under Title IX, it must take place within the context of a University-related program or activity or during an attempt to take part in such a program or activity. The impact of the incident on the complainant or the campus environment is not considered a reason to permit investigation and action.

What about the change of definition of sexual harassment?

The new Title IX regulations define sexual harassment as follows:

Sexual harassment means conduct on the basis of sex that satisfies one or more of the following:
(i) A school employee conditioning education benefits on participation in unwelcome sexual conduct (i.e., quid pro quo); or
(ii) Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity; or 
(iii) Sexual assault (as defined in the Clery Act*); or
(iv) Dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA).

*Sexual assault under the Clery Act is defined as rape, fondling, incest, and statutory rape. Under our current Sexual Misconduct/Title IX Policy, based on the prior guidance, sexual assault is defined as actual or attempted sexual contact with another person without that person’s consent. 

One of the important differences in this definition is in bullet point #2. The new regulations require that in order to investigate a sexual harassment complaint, the conduct be “severe, pervasive, and objectively offensive.” The prior guidance, and our existing policy, uses a “severe or pervasive” standard, meaning that if the conduct is severe (for example, an incident of unwanted sexual touching) but not pervasive (it only happened once), it was subject to the policy and could be investigated. Under the new definition, the conduct would not meet the criteria and could not be investigated under Title IX. Similarly, under our current policy, the conduct would be covered under the definition of sexual assault. Under the new regulations, it does not fit that definition.

Will BU be able to continue to address sexual misconduct that it cannot address under Title IX?

Yes. BU will continue to respond to, and investigate, the full range of complaints of sexual misconduct that it currently does under the existing Sexual Misconduct/Title IX Policy. There are federal and state laws (e.g., Title VII, Massachusetts law ch. 151B and 151C) that require us to continue to address all of the types of sexual misconduct that we currently do. Complaints that fall under the new Title IX regulations, as noted above, will be investigated using the procedures required by the new regulations, which are very different from our existing procedures. Those complaints that do not fall under Title IX will be investigated using procedures similar to those currently in place. We are in the process of developing the new policy, which will address both Title IX sexual harassment and sexual misconduct that does not fall under Title IX, and the procedures that will accompany each.

I understand that the new rules allow schools to determine guilt or innocence based on either a “preponderance of the evidence” or a “clear and convincing” standard. Could you explain the difference between “preponderance of evidence” standard and “clear and convincing evidence” standard? Why is that so important?

• The preponderance of evidence standard requires that we evaluate whether the evidence shows the allegations made by the complainant are more likely than not to be true; in other words, whether the evidence supports a conclusion that the likelihood is more than 50 percent that the respondent caused the alleged harm. This is the standard of evidence used in most civil litigation.

• The clear and convincing evidence standard means that the evidence being presented must show it is highly and substantially more probable that the allegations are true rather than untrue. This requires a determination that it is substantially more than 50 percent likely that the respondent caused the alleged harm. This standard is generally used in civil cases where civil liberty interests are at issue or where equitable remedies are involved.

• This difference is important because using a preponderance of evidence standard, the evidence gathered by the University is assessed to determine whether it is more than 50 percent likely that the allegations are/are not true. If the evidence supporting the complaint does not meet the more than 50 percent burden, the complaint is not substantiated. Using a clear and convincing standard requires that in order to substantiate the complaint, the evidence must show that it is substantially more probable that the allegations are true.

If the regulations allow schools to choose for themselves between preponderance of evidence and the clear and convincing standard, what’s the problem?

The new regulations require that colleges and universities pick one standard of evidence to use in all cases falling under Title IX. The chosen standard must be applied in cases in which students, faculty, or staff are the respondent, and in cases alleging any of the types of conduct covered by Title IX. For example, we must apply the same standard of evidence to a complaint of sexual assault that we apply to verbal sexual harassment that is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.” We cannot decide to use one standard of evidence for one type of complaint and the other standard of evidence for the other type of complaint.   

BU currently uses a preponderance of the evidence standard for all cases of sexual misconduct. We will continue to use that standard under the new regulations. There will be individuals, including respondents, who believe the preponderance of evidence standard is inappropriate because it is a lower standard for drawing a conclusion that conduct violated the policy. When conduct is egregious enough that a finding of a violation may result in a very serious consequence, respondents would argue that the standard of evidence should be higher.

What about the new requirement for a live hearing? Could you explain why that could be problematic?

We have real concerns about the impact on the parties in the context of a live hearing. The purpose of the hearing is to allow the “advisors” to each party to cross-examine the other party and any witnesses. While these hearings can be done virtually if the parties request it, which means they do not have to be in the same room, each party must be able to see and hear the cross-examination of the other and the witnesses in real time. This has the potential to be extremely traumatizing to the complainant, and possibly to the respondent and witnesses as well. Additionally, the hearing officer must be able to determine the relevance of questions in real time and make immediate explanation of why a particular question is not relevant and may not be asked. This creates a need to have hearing officers that are experienced in making such determinations in the moment.  

The new regulations also require that if a party or witness does not attend the hearing or submit to cross-examination during the hearing, no statement of that party or witness will be admissible at the hearing. This means that if a party made a statement or an admission during the investigation, but they are not available or willing to be cross-examined, the statement obtained during the investigation will not be available to the hearing officer to consider in determining whether a violation of policy occurred.

What changes does BU find problematic? 

The top three are: the requirement for live hearings; the requirement of cross-examination of parties and witnesses; the rule that if a party or witness is not available for cross-examination or does not submit to cross-examination, no statement made by that party or witness at any time, including during the investigation, may be considered in a determination of whether a violation of the policy has occurred.

How will all of the changes affect the process at Boston University?

The changes will require significant changes in the process for addressing Title IX complaints. We are working to outline and implement those now. More on this will be available as we go forward.

Has the University filed any official objections?

No, the University has not filed any official objections, and I am not aware of any plans to do so. The Massachusetts attorney general joined in the filing of a complaint in DC circuit court on June 4, along with many other states’ attorneys general, to seek a stay to the implementation of the new regulations due to the many problems they present, not the least of which is the short implementation period.