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Harvard may be required to change its current Title IX policy to comply with new federal dictates if the U.S. Department of Education publishes a new set of guidelines under consideration, experts say.
The new draft guidelines would require schools to allow students accused of sexual assault to cross-examine their accusers, the Wall Street Journal reported last week. They are aimed at shaping implementation of Title IX, an anti-sex discrimination law that underpins universities’ approach to handling sexual assault.
A 2011 Dear Colleague letter that first set federal recommendations for campus sexual assault adjudication stated that the Office for Civil Rights — a subset of the Department of Education — “strongly discourages schools from allowing the parties personally to question or cross-examine each other” during hearings, since this “may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.”
Education Secretary Betsy DeVos rescinded that Obama-era letter in Sept. 2017.
Colby Bruno, a lawyer with the Victim Rights Law Center, wrote that allowing cross-examination by the accused could be “seriously traumatizing for the accuser.”
“Survivors face many obstacles to reporting and disclosing. These new guidelines would create more obstacles for them to report and be safe. Sadly, that seems to be exactly what the Department of Education’s goals are,” Bruno wrote in an email.
A spokesperson for the Department of Education did not respond to requests for comment.
“The whole logic for these guidelines comes out of this belief among the Trump administration that there’s this huge false accusation problem, and that’s just really not the case,” said Remedy H. Ryan ’21, a member of campus anti-sexual assault advocacy organization Our Harvard Can Do Better.
The new guidelines “would just make the complaint process more difficult for survivors,” she added.
Harvard Law School Professor Diane L. Rosenfeld, who teaches a course on Title IX, speculated that the leaked draft guidelines “could likely change” from their current iteration, after the required notice-and-comment period. That portion of the regulatory process allows the public to provide feedback on changes to rules executive agencies propose.
“Many of the things that are in the policy are legally very problematic,” Rosenfeld said. “They seek to import private law standards and criminal justice standards into a civil rights context for school adjudication under Title IX. And they’re just simply not the same legal and regulatory system, so the same rules don’t apply.”
Rosenfeld also said the Department of Education is legally obligated to take all comments into account while the guidelines are open for notice-and-comment.
When the department issues them in final form, however, Harvard might need to change its procedures for adjudicating sexual misconduct complaints. Under the University’s current procedures for investigating formal complaints, investigators interview complainants and respondents separately.
Asked whether Harvard would change its policy if the draft guidelines take effect, University spokesperson Nate Herpich wrote in an email, “It would be premature for us to respond at this time, as no changes have been made as of yet.”
The Trump administration’s stance on Title IX also provoked uproar last month, when the New York Times reported that the administration was considering codifying a definition of gender in Title IX that would effectively define transgender people out of existence.
In its current form, the new set of Department of Education guidelines does not contain a definition of gender. Instead, the U.S. Department of Justice is exploring the option of issuing a legal opinion that would restrict determinations of gender to a person’s genitals at birth, the Wall Street Journal reported.
In an Oct. 30 interview, University President Lawrence S. Bacow said Harvard remains committed to its “policy of inclusion” and “non-discrimination.”
“We don't know what policy changes there's going to be yet,” Bacow said, adding that Harvard’s commitment to inclusion “will not change.”
“We will see what the administration does, but we're committed to our policy,” he said.
In an email to undergraduates last week, Director of BGLTQ Student Life Sheehan D. Scarborough wrote that though it is uncertain as to whether this change will pass, the College will continue to support transgender and gender non-binary students.
“The existence of transgender and gender non-binary people is not hypothetical or abstract, nor should it be up for debate. You have a right to live without fear, to be visible, and to thrive. Harvard College’s position on this matter will not change,” Scarborough wrote.
“Our current non-discrimination policy includes protections on the basis of sex and gender identity, and we affirm and celebrate the diversity of gender identities and expressions represented in our community,” he added.
University Title IX Officer Nicole M. Merhill said that since the University adopted its current sexual- and gender-based harassment policy in 2014, it has consistently “gone beyond” federal Title IX guidelines.
“We’ve incorporated provisions that prohibit discrimination not only on the basis of sex, but sexual orientation and gender identity. And it’s our intent to uphold those values of inclusivity in the Harvard community,” she said.
—Staff writers Kristine E. Guillaume and Jamie D. Halper contributed reporting.
—Staff writer Simone C. Chu can be reached at firstname.lastname@example.org. Follow her on Twitter @simonechu_.
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