University clarifies procedures, definitions for sexual assault and harassment allegations
In May, 2020, the United States’ Department of Education updated its Title IX policy, releasing a new set of regulations to be enforced at educational institutions across the country; Notre Dame, as one such institution, has responded accordingly. An April 13 message from the school’s Office of Institutional Equity explained that the university has worked to alter its own policies and procedures in compliance with federal law, employing the help of “a diverse group of students, faculty, and administrators.”
This emailed message, signed by Erin Oliver, J.D., Assistant Vice President and Title IX Coordinator, promised “training sessions” to help familiarize campus community members with the school’s new policies—policies which, she says, will “affect every member of the campus community,” making it necessary for “all students, faculty and staff” to be aware of them. Oliver also recognized the necessity of “further dialogue with the campus community” to discuss remaining issues and the potential impact of the federal regulations.
Oliver maintained that, “regardless of the form or substance of the new regulations,” the University remains “deeply committed to fostering an environment that is inclusive of all members of the campus community and characterized by a collective sense of care and concern for each other and the common good.”
As to the form of these changes—which went into effect on August 14—and the way they will “affect” all members of the campus community? The federal policies, as outlined on the Title IX website, include a new definition of sexual harassment and new procedures “upholding each student’s right to written notice of allegations, the right to an advocate, and the right to submit, examine, and challenge evidence,” as well as the right of all students “to a live hearing where advisors conduct cross-examination.” Under the updated law, both the accused and the accuser in any case will have an “equal opportunity to appeal the finding;” further, the update emphasizes the need for a “standard of evidence” and “fair, transparent procedures,” both of which are meant to lessen the chance that initial decisions will be overturned by courts.
Notre Dame seems to have adopted these statutes accordingly. The emailed message from the Office of Institutional Equity contained a link to its website, where PDF files explain Notre Dame’s policies concerning Discriminatory Harrassment, Sexual Harrassment, and Other Sex-Based Misconduct Policy, its Procedures for Discriminatory Harrassment, Sexual Harrassment, and Other Sex-Based Misconduct and its Non-Retaliation Policy.
The first PDF details, among other things, Notre Dame’s new (federally-mandated) conception of sexual harassment, which, while it now includes “Domestic Violence,” “Dating Violence,” and “Stalking,” has been also been semantically narrowed to cover only “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University’s education program or activity.” This marks a major change from the broader definition of sexual harassment put forth by the Obama administration, which was that any “unwelcome conduct of a sexual nature” ought to be considered sexual harassment.
Due to the new procedural policies listed above, the method by which harassment/assault complaints are made has also changed. According to Oliver, complainants at Notre Dame must now “choose to file a formal complaint, participate in a live hearing, and be subjected to cross-examination.” While the Obama-era guidelines technically allowed for live hearings and cross-examination, these practices were both “discouraged” and were even “strongly opposed,” according to R. Shep Melnick’s report for the Brookings Institute. Now, Melnick says, both are required; Oliver suggested that “the new regulations could have a chilling impact on reporting and/or participation in the process,” perhaps fearing that the obligatory cross-examinations and live hearings might discourage victims from filing formal complaints.
Other changes include the express prohibition of the “single investigator” approach to sexual harassment and violence cases, which Melnick says was encouraged during the Obama era; “respondents” may now be accompanied by “advisors” during all stages of a complaint.
Though Title IX may look different, Notre Dame seems to have established continuity in some important areas. As is laid out in the university’s document covering procedures for sexual harassment, for example, formal complaints may now be dismissed if they “did not occur in the university’s educational programs or activities.” However, the document also states that the university can still investigate misconduct occurring at off-campus locations or conduct that does not meet the requirements of the new Sexual Harassment definition, even though such circumstances will no longer fall under Title IX regulations. Ultimately, Oliver asserts that, despite any potential procedural variance caused by “the new regulatory definitions,” the university “will still address all instances of harassment.” And while she suggests that “the new regulations actually create a more narrow definition [of sexual harassment],” she hopes that the “expansion of Alternative Resolution”—which can be available under Sexual Harassment Procedures or the Procedures for Discriminatory Harassment and Other Sex-Based Misconduct—will prove to be a benefit to victims.
To most of us, these changes will mean little: in fact, Oliver says that “the typical student probably is not affected day-to-day by the federal regulations,” maintaining that Title IX is only habitually impactful because it enforces the “[expectation of] an environment free of Sexual Harassment.” While things have changed behind the scenes, Notre Dame students’ daily lives will likely not be extensively impacted by these changes.
Nia is a junior studying in the program of liberal studies with minors in history and journalism, ethics and democracy. She loves running, cooking and watching the New York Giants lose every Sunday. She can be reached at firstname.lastname@example.org