According to most news analyses, the U.S. Department of Education's proposed rule changes for handling sexual misconduct and harassment on college campuses strengthen the rights of the accused at the expense of the victim. If respondents are able to hire lawyers to cross-examine witnesses, survivors will never be taken seriously.
But those headlines and lead paragraphs ignore the substantial powers the new rules grant to survivors. Not only do those rules prove that the rights of both parties are not mutually exclusive, but they also assume that survivors still deserve to be treated as functional human beings.
Under the Obama-era guidelines, students who had been sexually assaulted or sexually harassed were denied substantial decision-making processes. First, students had no choice in whether or not to report a case of nonconsensual sex or unwelcome sexual advances. Second, their judicial options were limited to a Title IX disciplinary panel. Third, the definition of sexual harassment privileged their fears over adult communication. All three elements of the old rules made it harder for survivors to heal.
Mandatory reporting. Under the “trauma-informed approach,” faculty and staff members were required to report any signs of prohibited sexual conduct to survivor advocates, whether or not the student wanted to complain. Any hesitancy or resistance on the part of the student was read as a symptom of trauma, not as a case of confusion or conflicting concerns. Victims, we were told during the annual training, don’t know what they need -- which is for all employees of the college to act aggressively on their behalf.
By deputizing its entire work force as “responsible employees,” colleges were able to prove that they were taking sexual harassment and sexual misconduct seriously. But that policy required faculty members who taught sensitive material, such as feminist theory or literature, to alert their classes that any reference to an actual case of prohibited sexual behavior would need to be reported to the authorities. Once spoken, their private experiences were a matter of college business.
In contrast, the proposed changes require only one employee to coordinate and comply with the regulations, freeing faculty and staff members to provide support without triggering an investigation. This new rule will allow students to talk with others before deciding to initiate a complaint.
No alternative form of justice. The previous guidelines prohibited any informal alternative to a disciplinary panel, such as mediation. No survivor, it was assumed, could withstand the emotional distress of speaking with the accused.
Other countries, however, have granted survivors the option of restorative justice with no apparent damage. For instance, in Nova Scotia, female victims of online sexual harassment engaged in a series of restorative justice conferences. The women were students at a highly competitive dental school, and their harassers were fellow students who used a men-only Facebook page to make lewd comments about the women’s intelligence and looks. Rather than push for the dismissal of those accused through an administrative disciplinary panel, the survivors wanted to tell their peers how their sexist postings affected them and their studies. The women wanted the harassers to become better dentists and better human beings.
The proposed changes allow colleges and universities to experiment with alternative forms of justice, such as mediation or restorative justice conferences. As long as the parties understand the nature of the choice, more judicial options can be made available. That will allow harmed students to decide whether they want to take a greater or lesser role in applying any sanctions. For some harmed students, a restorative justice conference, in which they have a chance to speak directly to the harming student, offers more healing than a highly regulated proceeding in front of a panel.
No collective norms. Under the previous guidelines, sexual harassment was defined as “unwelcome conduct of a sexual nature.” The person who determined whether or not the conduct was unwelcome was the person allegedly being harassed. That person’s subjective response drove the whole investigation. As long as the complainant felt ill at ease, the Title IX panel should find for the aggrieved party.
But not being welcome hasn’t always been understood in purely subjective terms. Lawyers in workplace harassment cases, in contrast, read “unwelcome” as placing a burden on the aggrieved party to communicate their discomfort. Sometimes known as the “one free pass” rule, courts have understood that anything prior to an explicit rejection of sexual advances is potentially welcome.
On college campuses, however, cases are determined purely on the emotional distress of the complainant. If she (and majority of complainants still use that pronoun) feels demeaned, humiliated or scorned by the lascivious actions of another person, the encounter should be judged as harassment. Unfortunately, the subjective definition the Obama administration used has given an entire generation of college students a sense that painful feelings outrival communication. Students need not communicate their unease or discomfort to the offending party. All that is necessary is mentioning the encounter in passing to a “responsible employee” and the Title IX apparatus will jump into gear.
Under the recent proposed changes, sexual harassment is any “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 college’s] education program or activity.” Under this definition, it won’t be enough merely to claim one’s discomfort. The action must be offensive enough that other people will also find it objectionable.
The benefit for survivors? This change in the definition will mean colleges will have to do a better job of clarifying collective norms. Instead of relying on individuals to police offensive encounters, the new guidelines will require campuses to adopt objective standards of decency, standards that will make it easier for aggrieved parties to voice their unease.
As it turns out, colleges with a strong moral compass are better able to address gender violence. As law professor Leigh Goodmark points out in her new book Decriminalizing Domestic Violence, Xavier University used the Jesuit concept of “cura personalis” -- care for a person’s mind, body and spirit -- to address gender-based violence. Xavier was able to “mobilize their culture” toward healthier community norms. Without those community norms, individuals are thrown back on their individual sensibilities.
So, yes, the new rules provide more protections for the accused, particularly the right to have a lawyer available to cross-examine witnesses. But they do even more for survivors. By treating survivors as capable decision makers and requiring communities to clarify social norms, students who have been harmed by the sexual advances of others will have a much greater chance of healing and getting on with their education.