Proposed changes to Title IX sparked concerns from campus leaders last November. Syracuse University Chancellor Kent Syverud publicly condemned two provisions in the proposal, and Student Association criticized the changes as a whole.

Nearly a year later, those changes have yet to be implemented. Several experts told The Daily Orange they expect to see Title IX changed at some point, but they don’t know when it will happen.

“To this day there are a lot of questions,” said Andrew Miltenberg, a New York-based lawyer specializing in Title IX due process cases. “Not a lot of answers.”

The U.S. Department of Education’s proposal would shift the definition of sexual harassment to unwanted conduct on the basis of sex that is “so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.”

Currently, sexual harassment is defined by federal standards as “unwelcome conduct of a sexual nature.”

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The definition would give increased clarity on what is acceptable under the law, said Casey Johnson, an associate attorney at the Syracuse branch of law firm Bousquet Holstein PLLC. But for victims, he would want a system where they can get support while continuing their education in a safe environment.

“Making sure that it’s a fair system for everyone involved, that’s really hard,” said Johnson, who advises both plaintiffs and defendants.

After the proposed changes went public, the DOE received about 100,000 comments during its public comment period, which ended just before February, NPR reported. Syverud sent a letter to Education Secretary Betsy DeVos on behalf of the university.

Syverud’s letter condemned two recommended provisions: changing the definition of sexual harassment and requiring universities that allow students accused of sexual assault to cross-examine their accusers.

“Syracuse University strongly believes that the adjudication procedures in the (proposed rules) would harm students and deter the filing of sexual assault and harassment complaints,” Syverud said in the letter, which he forwarded in a campus-wide email last January.

Several lawyers who advise students in Title IX hearings at SU are unsure of what type of weight the public’s input will hold — or whether the public at large or lobbyist groups have the most say.

“It’s the legislators that write the language, and it’s hard to say what’s going to influence them,” said Gerald Raymond, a defense attorney who has advised cases across central New York, including ones for SU.

Enacted in 1972, Title IX is a part of federal law that prohibits discrimination based on sex. Obama-era guidelines, presented in a 2011 “Dear Colleague” letter, gave the federal government more control over how colleges judge sexual assault allegations.

Other proposed changes to Title IX include mandatory live hearings in which the defendant’s lawyer can cross-examine the complainant. The proposal considers giving colleges the option to not be held liable for sexual harassment unless a formal complaint is submitted.

The changes will strengthen their due process rights, Miltenberg said. He is known as a top due process lawyer for Title IX cases and almost exclusively represents men, The New York Times reported.

“It’ll expand the investigative reach so that a greater amount of contextual evidence is considered,” he said.

All schools that receive federal funding are subject to the law, and the government can withhold funding from universities who don’t comply. SU, as a private institution, has slightly more leeway than public institutions when interpreting the definition of sexual harassment, lawyers said.

Johnson said he has never heard of a university going against Title IX to the extent that they get their federal funding pulled, but he doesn’t see a “clear-cut line” on how much room a university has to interpret.

“That’s the risk,” Johnson said of SU’s compliance with federal Title IX standards. “How fast and loose they want to play with that, it’s up to them.”

Published on October 30, 2019 at 9:33 pm

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