The Severe and Pervasive Confusion of the New Title IX Policies

Harvard’s Title IX Office certainly didn’t have it easy this summer, as it scrambled to respond to new regulations issued by the Department of Education, which relaxed the standard of sexual harassment, limited University purview, and ramped up procedural requirements for investigations. And the office, no doubt, showed a nimbleness and creativity in its response: devising two procedural pathways, one in line with the federal regulations and one seeking to catch other cases of sexual and gender-based harassment that will fall through the cracks.

Still, Harvard’s notably “interim” policies leave a lot of questions up in the air. And they leave us wanting more decisive and more combative actions from the University.

Most strikingly, the Interim Other Sexual Misconduct Policy — whose very name reflects how amorphous it is — will lack the legal force of Title IX investigations laid out in the new regulations, since it covers violations they do not. Under this policy, the Office of Dispute Resolution will conduct an internal investigation — instead of a hearing and cross-examination as with the Title IX policy — and then issue a report to the relevant school. We are glad the University has maintained a mechanism to address off-campus cases, but we question ODR’s capacity to do so robustly given the new Department of Education guidelines. We fear that this new policy is basically just the Obama-era approach minus legal teeth.

Say that ODR determined — after the case was deemed not to fall under the new Title IX regulations — that a undergraduate had committed sexual harassment at an off-campus party. What teeth would this have? How would the college be held accountable to determining a just punishment? And might the student have a strong legal case that it would be unjust for the College to, for example, expel them, given that the case was “Title IX invalid,” investigated by an extralegal body, and never confirmed in a court of law?

In terms of the Title IX interim policy, we are concerned about the composition of the “hearing panels” that will preside over cases. Community members going through this process — and especially survivors — should not have to do so with familiar faculty members or administrators as their effective judges. The University should ensure that panel members do not have prior relationships of any sort with those involved.

Equally concerning is that the new policy only complicates and makes more opaque an already complicated and daunting process. If Title IX was already a bureaucratic black box that by its very nature deterred students from filing formal complaints and induced retraumatization of sexual assault survivors and other victims of sexual and gender-based misconduct, the new process — with its two pronged approach, daunting cross-examinations and hearings, and ethos of futility — can only be more damaging.

At minimum, the Title IX Office needs to pursue a broad and continuous campaign to explain how the new procedures work and what support resources community members have to aid them — not least what “severe” and “pervasive” actually mean. But it should also present to the community the process by which it translated the new regulations into institutional practice. To many, it may be concerning that individual institutions have so much latitude in their interpretation of policies. The community has a right to know how its leadership is thinking about these issues and interpreting federal policy.

Further, the Title IX Office must do more to clarify to students what these new policies entail for Harvard affiliates in a remote, COVID world. How do these policies apply to the plurality of students who are away from campus physically? How does the standard of “so severe, pervasive, and objectively offensive” apply to interactions that may be happening through messages, emails, or on zoom calls? Clarity around these issues is necessary to prevent fears that may otherwise lead to students feeling vulnerable right now.

The previous Obama administration Title IX policy guidance was issued in the form of a 19-page “Dear Colleague” letter from the Office of Civil Rights in the Department of Education. These new Title IX changes come in the form of 2,033 pages of actual regulatory rule changes from the Department of Education. In other words: These new changes come with the full force of the law that the previous Obama guidance did not. Because of this it will be much more difficult for these regulations to change going forward, which means they likely represent a new reality that the University will have to work with for a while.

While Harvard should act to secure all its affiliates' safety as if these changes were permanent in the meantime, it should also continue to use its influence in Washington to try and get the new regulations changed. Harvard has successfully challenged federal policies before, most recently with restrictions on international student visas from Immigration and Customs Enforcement. And Harvard is certainly not new to the practice of lobbying lawmakers either. While this situation is different to those previous policies, we reiterate that these regulations demand another visit to Washington.

This staff editorial solely represents the majority view of The Crimson Editorial Board. It is the product of discussions at regular Editorial Board meetings. In order to ensure the impartiality of our journalism, Crimson editors who choose to opine and vote at these meetings are not involved in the reporting of articles on similar topics.