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Betsy DeVos’s new sexual harassment rules might already be hurting students

One school just got rid of its Title IX coordinator. The debate could be a sign of things to come.

Protesters outside the Department of Education as Secretary Betsy DeVos prepares to deliver remarks on February 8, 2017.
Protesters outside the Department of Education as Secretary Betsy DeVos prepares to deliver remarks on February 8, 2017.
Jim Watson/AFP/Getty Images
Anna North is a senior correspondent for Vox, where she covers American family life, work, and education. Previously, she was an editor and writer at the New York Times. She is also the author of three novels, including the New York Times bestseller Outlawed.

For many students who experienced sexual assault or harassment at Drew University in Madison, New Jersey, Title IX coordinator Emily Ralph was a supportive ear when they needed it most, students and alumni say.

Ralph was responsible for overseeing formal Title IX complaints at the university, as well as the university’s other efforts to prevent and address harassment and assault. With a master’s degree in social work as well as a law degree, she was both empathetic toward survivors and fair to everyone involved, one Drew alum told Vox.

“When Emily was put in place, reports went up,” said Sarah O’Brien, a graduate student at Drew. “That’s not because there was a problem all of a sudden — it’s because students felt comfortable reporting.”

But in early January, Ralph was let go. In what appears to be a cost-cutting measure, the university eliminated the position of full-time Title IX coordinator and announced that the role would be filled by an eight-member team, all of whom have other jobs at the university.

Drew president MaryAnn Baenninger told Vox that “with this distributed model, there will be more people who will be able to offer a knowledgeable approach that will help our whole community.” But some students and alumni are concerned that the move will make it harder for survivors to report, and easier for the university to sweep problems under the rug.

Meanwhile, advocates say situations like the one at Drew could become more common under new Title IX regulations issued in November by the Department of Education under Secretary Betsy DeVos. Anti-harassment groups fear the new regulations will make it easier for schools to cut corners in their handling of harassment and assault, because the changes make it more difficult to find them legally responsible for doing a bad job.

During a public notice-and-comment period on the regulations that ended Wednesday, thousands of survivors and advocates urged the Department of Education and DeVos to reconsider the changes. Now the department will review the comments and decide whether to make the new regulations final. If that happens, the changes will “make schools a more dangerous place for people of all kinds to be,” said B. Ever Hanna, the campus policy manager for End Rape on Campus.

Drew’s Title IX coordinator was let go amid budget cuts

Emily Ralph was hired as Drew’s Title IX coordinator in 2016, according to LinkedIn (through a lawyer, Ralph declined to comment for this story).

Several students and others at Drew say she did her job well. She created a Title IX committee composed of faculty, staff, students, and representatives of local organizations like the New Jersey Coalition Against Sexual Assault, which helped ensure the voices of all constituencies were heard, O’Brien said, and was able to get resident advisers and student athletes more involved in anti-harassment efforts. She had a high respect for fairness and due diligence, said a Drew alum who asked to remain anonymous for fear of retaliation.

“Emily was incredibly professional,” said a Drew community member who filed a Title IX complaint, and who asked to remain anonymous because her investigation is still open. “She made me feel safe.”

Baenninger declined to comment on the precise nature of Ralph’s termination — whether she was laid off, fired, or something else — or on whether the university had any concerns with her performance. But Drew is in the midst of cost-cutting as it faces a deficit, as Inside Higher Ed reported in November. The decision to move from a full-time coordinator to the eight-member team “was part of a whole restructuring process,” Baenninger told Vox, and “in a global scale, dollars went into our decision-making.”

The new Title IX team includes a new coordinator, dean of students Frank Merckx, along with three deputies and four officers in other roles. Students and others are concerned that multiple part-time Title IX officers won’t be able to approach the job with the same focus Ralph was able to devote as a full-time coordinator. They also fear that because the Title IX team members have other jobs at the university, their ultimate loyalty will be to the institution, jeopardizing their ability to fairly adjudicate complaints.

In 2015, the Department of Education under President Obama recommended that schools appoint a full-time Title IX coordinator in order to “minimize the risk of a conflict of interest” and “ensure sufficient time is available to perform all the role’s responsibilities.” The department also noted that designating the dean of students as coordinator might pose a conflict of interest.

Some are also concerned about Merckx’s stance on Title IX, given a 2017 dissertation filed in Drew’s program in medical humanities, in which he is apparently critical of the Obama administration’s approach on harassment and assault. “It is the author’s belief that most of the educational requirements set forward by the Department of Education during the Obama Administration, and enacted on college and university campuses throughout the United States, were based on incorrect assumptions for both domestic and international students’ foundational understandings of sexual education,” he writes. He also describes Obama-era guidelines on Title IX compliance as having been “rushed into place by all colleges and universities.”

“I have long been an advocate for educating individuals on healthy relationships and consent prior to their arrival to a college campus,” Merckx told Vox in an email. “My dissertation was not critical of the regulations but rather challenged institutions to be mindful that Title IX educational requirements must be translatable and tailored to specialized populations.”

He added that Drew’s policy “allows for all parties to request changes should an actual conflict arise.”

Baenninger said Merckx’s role of dean of students did not pose an inherent conflict of interest.

She also said that while she had not read his dissertation, “I’ve seen no criticality from the new director or anyone on campus about the Obama-era guidelines. In fact, we’ve all sought to not only meet those guidelines but exceed them.”

New Title IX regulations could make it easier for universities to cut corners on harassment prevention

The change at Drew comes at a time of intense public debate around Title IX, which bans discrimination on the basis of sex in educational settings. In 2011, the Obama administration issued a guidance document now known as the “Dear Colleague” letter, explaining schools’ responsibilities for preventing and responding to harassment and assault under Title IX. Thanks to this guidance as well as a groundswell of activism by student survivors, colleges and universities became much more proactive in investigating claims of sexual harassment and assault.

But DeVos has long expressed skepticism of the Obama-era guidelines, and in November, the Education Department released new regulations that differed in several key ways. They allow schools to use a higher standard of evidence for adjudicating claims of harassment and assault, meaning it will be harder to find an accused person responsible. They also introduce a stricter definition of sexual harassment, defining it as “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.”

In another key change, the regulations make it harder to find schools legally responsible for failing to address harassment. Under the Obama-era guidance, schools could be held responsible if they “reasonably should” have known about an incident of harassment or assault and did not act appropriately — under the new regulations, they would have to have “actual knowledge” of the incident.

This change, advocates say, could make it easier for schools to scale back their efforts to prevent and address harassment and assault, because it will be harder for students to take them to court for lapses.

“These rules ratchet up the standard for schools to be held responsible,” Hanna, the End Rape on Campus policy manager, said. “It’s going to be really, really difficult — pretty much impossible, honestly — for a school to be found in violation of Title IX.”

After their release, the regulations were opened for a 60-day notice and comment period, which ended on Wednesday. While some, including attorneys representing accused students, were supportive of the changes, thousands of survivors and advocates have submitted comments arguing that the changes will jeopardize students’ and others’ ability to report harassment and receive justice.

“I was a victim of sexual assault at a time when there were no protections at all. I’m afraid that this will bring back a time when you got sexually assaulted and there was nothing you could do about it,” one comment reads. “The rules that Betsy DeVos have set in place clearly favor saving an organization from possible liability. These rules have nothing to do with what the right thing is to do.”

The Department of Education will now review the comments and decide whether to make the November rules final. But according to Hanna, some schools are already changing their policies in anticipation of final rules. Hanna pointed to the University of Michigan, which recently announced a new policy requiring an in-person hearing in which an accused student or their adviser can cross-examine an accuser. (The university has said the change is a response to a court decision in a case brought by an accused student.)

Baenninger says that while the changes at Drew weren’t inspired by the new regulations, “you need a structure that’s going to be responsive to changes to regulation at this kind of period of time.”

Students and others in the Drew community, however, believe the university cut Ralph’s position in response to the Trump administration’s loosening of schools’ responsibilities under Title IX. “I think this is a direct manifestation of the Trump administration’s rescinding of the Obama-era regulations and the new rules that Betsy DeVos is putting in place,” O’Brien said.

Given Merckx’s dissertation, she added, “I’m very concerned that he is in full support of the Trump administration’s decision to rescind the Obama-era regulations” and “put these new rules in place which do not protect the student who is reporting.”

Asked about his opinion on the Obama-era guidelines and new regulations, Merckx told Vox, “regardless of what happens with the regulations, it is critical that every person on our campus is aware of their rights under Title IX.”

O’Brien and others have formed Drew Students 4 Title IX, a group dedicated to opposing the changes. They have drafted a petition calling for Ralph’s reinstatement, which has received more than 350 signatures. They hand-delivered the petition to Baenninger’s office on Wednesday.

“Emily was one of the few people any of us could go to without feeling blamed or ashamed of what happened,” one of the comments on the petition reads. “She believed us when others wouldn’t.”

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