Letter to the Editor: SHARE statement on Title IX

In September, Secretary of Education Betsy DeVos announced that the Department of Education would formally rescind Obama-era guidance on how schools should handle sexual assault accusations under Title IX, a federal law prohibiting sex-based discrimination in schools and programs that receive federal funding. Interim guidelines written by the Department of Education reflect DeVos’s concern that previous guidance denied proper due process to those accused. After soliciting feedback from universities and other stakeholders, the Department of Education plans to release a new set of guidelines.

Princeton’s policies regarding sexual misconduct will not be affected for the foreseeable future by the decision of the Department of Education to rescind the Obama-era guidelines. The University’s website explains that a voluntary resolution agreement, reached by the University and the Office of Civil Rights in 2014, remains binding under the September 2017 guidance, and holds the University to the preponderance standard of evidence. “The new guidance will not have an immediate effect on Princeton,” the website states.

Additionally, Vice Provost Michele Minter, the University Title IX coordinator, affirmed that the University is not making any changes in the short term. “We believe that our policies are working well,” she said.

While it is impossible to know what effect future guidelines will have on Princeton’s policies, the recent interim guidelines give a sense of the direction in which the Department of Education is inclined to move. The changes contained in the interim guidelines issued by DeVos’s Department of Justice include: 1) greater discretion in establishing a standard of evidence in university sexual assault proceedings, 2) removal of the definition of a “prompt” university investigation, and 3) allowance for mediation in university proceedings.

Under Obama-era guidelines, the standard of evidence used in university sexual assault proceedings was the preponderance of the evidence standard, which is used in all civil cases in the United States. This standard requires that the evidence show that an event is more likely than not to have occurred. Those who support preponderance of the evidence as the standard in Title IX cases argue that this standard gives equal weight to both the complainant and the respondent.

The clear and convincing standard of evidence requires that the complainant show that something is substantially more likely than not to have occurred. It thus raises the bar for findings of responsibility. Under Obama-era guidelines, universities were required to operate under the preponderance of the evidence standard; now, universities can choose to implement either standard as they see fit.

The Obama-era guidelines also required that universities conduct a “prompt” investigation into any sexual assault allegations submitted through Title IX, defined as within a 60-day period. This ensured that universities would conduct their disciplinary process in a timely manner, preventing unnecessarily extended distress for the complainant. The new guidelines do not include a definition of the term “prompt,” making the timeline open ended and at the discretion of each university.

The third and final change allows for (but does not require the provision of) informal resolutions to Title IX sexual assault complaints, including mediation, an option that was not permitted under previous guidelines. As described by the University’s Ombuds Office, mediation “is a voluntary process in which one or more impartial person(s), the mediator(s), facilitate communication between parties in a conflict.” It is, by nature, non-punitive. Brett Sokolow, president of the National Center for Higher Education Risk Management, writes that allowing for mediation or informal resolutions “sends a message that sexual assault is a misunderstanding to be worked out by better communication skills.”

For the foreseeable future, Princeton, bound by its voluntary agreement with the Office of Civil Rights, will continue to operate under the preponderance of the evidence standard, will complete each investigation within 60 calendar days of receiving a complaint, and will not allow for mediation or informal resolution between a complainant and a respondent. DeVos’s changes, however, reflect the Department of Education’s changing views on Title IX, and may foreshadow future guidelines that would affect Princeton’s policies.

The new guidelines do not affect the availability of any of the resources currently in place for survivors of interpersonal violence. If you or someone you know has been a victim of interpersonal violence or sexual misconduct, you can get help. Sexual Harassment/Assault Advising Resources and Education is a confidential resource with a 24-hour on-call service (609-258-3310), located in McCosh Health Center 217. SHARE peers are students who serve as private resources, who are available to to help you figure out your next step.

If you wish to make a Title IX complaint, contact Michele Minter, Title IX Coordinator, at 609-258-6110 or mminter@princeton.edu, or submit a complaint directly online at sexualmisconduct.princeton.edu/complaint.

— SHARE