Civil Rights/Title IX Coordinator Samantha Hughes recently addressed the U.S. Department of Education's new regulations and affirmed Kenyon's commitment to promoting and providing a campus environment that is free from sex- and gender-based harassment and violence. Below are the answers to frequently asked questions.
What is Title IX?
Title IX is a landmark civil rights law passed in 1972 that prohibits institutions that receive federal funding from practicing gender discrimination in educational programs or activities. Its scope is broad and addresses acts including sex discrimination, sexual harassment and sexual violence — all of which can impact educational opportunities.
What is the Clery Act and the Violence Against Women Act?
Another law, the Clery Act, provides protections similar to Title IX against sexual assault, dating violence, domestic violence and stalking. The Violence Against Women Act was the federal law that amended the Clery Act to provide for some of these protections. Because the current regulations provide for significant overlap between Title IX and the Clery Act as amended by VAWA, the College has addressed all of these matters in a single policy. The new regulations are not expected to change the regulations under the Clery Act, but may change the way the two laws interact.
Kenyon is a private institution. Why might it have to change its policy to follow federal regulations?
Kenyon accepts federal funds, including federal financial aid for its students and research grants for its faculty. As part of this acceptance of funds, the College must abide by federal regulations. Failure to follow Title IX could result in the withdrawal of federal student aid from Kenyon students.
What does this news mean for the campus community right now?
Kenyon has confidence in its current Sexual Misconduct and Harassment Policy, which was written during the 2014–15 academic year and adopted in the 2015–16 academic year after rigorous discussion and approval by various campus groups including: Student Council, Campus Senate, Staff Council, the faculty, and ultimately endorsed by the Board of Trustees. The College will follow its established policy until new federal regulations are finalized and required changes to existing College policy are announced and implemented. The Department of Education has mandated compliance with new federal regulations by Aug. 14, 2020.
Is it certain that the College must change its Sexual Misconduct and Harassment Policy to comply with expected new federal regulations?
Yes, some portions of Kenyon’s established policy and process will need to change. Prior to the start of spring break, various campus constituencies were able to review and provide feedback regarding the anticipated changes. The required changes and, to the extent possible, campus feedback will be incorporated into the 2020-21 policy.
The Department of Education has issued guidance on Title IX before. What’s different about the nature of these new regulations?
In recent years, the Department of Education has periodically issued non-binding documents known as “Dear Colleague Letters” to colleges and universities that offered interpretations of the Title IX law and suggestions for how to comply with the law. These guidelines include the 2011 Dear Colleague Letter and the 2014 Q&A on Title IX and Sexual Violence, both of which were rescinded under the 2017 Q&A on Campus Sexual Misconduct. Unlike those federal guidance documents, these new regulations carry weight more similar to the force of law when the U.S. Department of Education seeks to enforce them.
Why is the College moving forward now? What has changed since the proposed regulations were first announced in November 2018?
The proposed regulations, published in November 2018, have gone through what is commonly referred to as a period of “notice and comment.” This process means that the U.S. Department of Education provided “notice” of the proposed regulations by publishing them, and interested parties submitted “comment” with the U.S. Department of Education’s Office for Civil Rights regarding the proposed regulations. The submitted comments were reviewed by the U.S. Department of Education, and by the Office of Management and Budget (OMB), the last step before the regulations became final May 6, 2020.
What are the biggest policy changes that will occur?
College staff and legal counsel anticipate the following to comprise some of the most significant potential policy changes:
- Live hearing model. The direct cross-examination of complainants and respondents during an investigation was discouraged under the 2011 Dear Colleague Letter and is not currently the model employed by Kenyon. New federal regulations require schools to allow direct cross-examination in a hearing. Complainants and respondents would appoint advisors, who may be attorneys, to ask questions of parties and witnesses. These hearings may be conducted virtually. Moving to a hearing model will require the College to adopt additional procedures to govern this process.
- Increased availability of informal resolution. Under federal guidance issued in 2011 and 2014, mediation was suggested as a resolution option for some Title IX cases, but not any case involving sexual assault. All parties were required to agree to participation in this form of resolution; they could not be compelled to engage in mediation. The final regulations permit more opportunities for informal resolution if both parties are interested in pursuing it and the College determines it is appropriate.
- Equitable offering of resources. New regulations mandate equitable access for both complainants and respondents to written notices, investigation materials, written rationale for sanctions, and support services such as counseling and housing accommodations. This is Kenyon’s practice under the current policy.
- Definition of what constitutes sexual harassment. New regulations narrow the definition of sexual harassment to “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” Kenyon currently defines sexual harassment as “any unwelcome sexual advance, request for sexual favors, or other unwanted verbal or physical conduct of a sexual nature...that is sufficiently serious, pervasive, or persistent as to create an intimidating, hostile, demeaning, or sexually offensive working, academic, residential, or social environment under both an objective and subjective standard.”
Who should I contact if I have specific questions or concerns regarding the new regulations?
Any student or employee with questions about sexual misconduct, intimate partner violence, support options, or the new federal regulations is encouraged to contact Interim Civil Rights and Title IX Coordinator Kevin Peterson (firstname.lastname@example.org).