[music] 00:08 Jackie Strohm: Welcome to PA Centered a podcast designed to help listeners be a part of the solution to end sexual harassment abuse and assault, each episode we will take on a topic or current event to help spark conversation and break down barriers to building communities free from sexual violence. [music] 00:31 JS: Hi, everyone, I'm Jackie Strohm the Prevention Resource Coordinator at the Pennsylvania Coalition Against Rape. I'll be your host today as we're joined by Donna Greco, PCAR's Policy Director to talk about Title IX. Welcome Donna. 00:45 Donna Greco: Hi Jackie, thanks for having me. 00:47 JS: Could you start by telling us a bit about yourself and your role? 00:51 DG: Sure. So I am the Policy Director here at the Pennsylvania Coalition Against Rape and I've been doing that work for about four years now and before that I was actually a Title IX coordinator for a very brief period. Prior to that, I was at PCAR, and NSVRC, the National Resource Center Providing training and technical assistance and support, in preventing sexual harassment abuse and assault, as well as ensuring that services were guided by best practices around the country. I've been an advocate working to end domestic and sexual violence, for over 20 years, and I got my start on my own college campus, so Title IX is near and dear to me, and the work of ensuring our campuses are safe is so important to me. 01:45 JS: That's great. Could you tell us a little bit about what Title IX is, and why it's important? 01:52 DG: Sure. Title IX is a Federal Civil Rights Law that was passed in 1972, and it protects students from being discriminated based on sex in educational settings. So any school that receives federal funds is prohibited from discriminating against students based on sex. 02:18 JS: So I know that there's been some changes to Title IX recently. Could you tell us about what some of those changes have been? 02:26 DG: Sure before going into the changes, I first wanted to spend a little time talking about the way Title IX is enforced. So since its passage in the early 1970s, the Department of Education at the federal level has been responsible for its implementation and in that responsibility, they've issued a number of guidance documents to schools, really letting schools know what they need to do to be compliant with this important law. And so when we're talking about the changes that have just been issued, they really come against a backdrop of just decades of guidance documents, and of course, most recently, the guidance documents that came under the Obama administration, in 2011, which is referred to as the Dear Colleague Letter of 2011, which really sent a strong message and an unprecedented message to schools that they absolutely had to take sexual violence seriously as a form of sex discrimination and they needed to comply with the guidance. 03:38 DG: And so these new rules are coming against that backdrop, and they really make significant changes to what schools have been adhering to since that 2011 guidance, and before. And I wanna also say that the changes are actually rule changes and they are legally binding, whereas the guidance documents were not really standing up to the legal threshold that these new rules will achieve. So they are significant. Some of the changes are to the definition of sexual harassment, it's much more narrow and specific. The location of the assault changes, before any assault that occurred whether it was on campus or off-campus, needed to be addressed through the Title IX proceedings. Now schools are only held responsible for addressing those assaults that happen under their purview, or under their responsibility or sponsorship or control. 04:45 DG: They also changed the definition in that sexual harassment must be objectively offensive and result in the denial of a student's access to an educational program or activity. That really changes the past definition which was much broader to encompass a range of sexual assault, harassment, and abuse. So, this objectively offensive standard is new, it's different. There are a lot of questions and concerns about how it will be measured, and applied. There's also concern about inserting this denial of access to an educational program, or activity. A student may be very resilient, or may be coping in a way that appears that they're just fine and they're in class, and they're still getting good grades. I guess it just calls into question how a school will determine whether access has been denied to a victim of sexual harassment abuse or assault. 05:53 DG: They also changed the reporting process. Schools have largely been requiring all campus employees and some student workers to report up to the Title IX coordinator when a student has disclosed any form of abuse. So now, they are really trying to streamline these reports by requiring victims to report directly in writing to a Title IX Coordinator or another authority identified by the school. This is for higher education for K through 12, really any employee that witnesses any form of abuse or suspected harassment against a minor, is responsible for reporting. But for higher education, they are now really streamlining how reports are made to the school and when the school is considered "on notice." So there are possible pros and cons with this that we'll get to in a little bit, but it's a significant change because it really shifts the responsibility of the school from that broad protection and everyone playing a role in receiving reports and hearing them forward, to now, the victim needing to come before a Title IX coordinator with a written statement that has been signed by the Title IX Coordinator. 07:21 DG: The rules make drastic changes to the process once an investigation has started, and again, that investigation only needs to start if the victim is submitting a statement in writing to a Title IX Coordinator. There's really an emphasis on the due process rights of respondents, there's a presumption that respondents have not committed what has been reported that they have done. There's a standard of evidence, choice now for schools whereas in the past, there was a strong recommendation that schools use the preponderance of evidence standard. Now schools can use a higher bar which is the clear and convincing standard. They are allowed to use this only for sexual misconduct cases. We're very concerned about that. The preponderance of evidence standard has been upheld in civil matters, by the US Supreme Court. We are really concerned that this is actually a discrimination against victims of sexual violence to only use this standard in this way. 08:31 DG: Another major change, is schools are required to have a live hearing with a cross-examination of the victim and this is certainly not trauma informed. The current guidance or I should say the past guidance really left it up to schools to develop their own proceedings, but really cautioned them against anything that would be re-traumatizing, explained to schools that they are not little court rooms, they are handling student misconduct, they are not a criminal justice entity, they should really be student-centered, victim-centered and yes, thoroughfare and timely in that process, but not doing anything that would re-traumatize a victim of sexual violence. 09:19 DG: Another major change, is to the ways in which schools can assess for and implement supportive measures. So in the past these were called interim measures or accommodations that schools would be making, the victims of sexual violence that were coming forward, whether the student wanted a formal investigation or the student was coming forward to receive health and referrals and some flexibilities to their schedule, perhaps they needed an extension on an exam or a paper and a whole other host of flexibilities and supports that were designed to really help keep a student on track after suffering from sexual violence, making sure that the school was addressing any hostile environment caused by sexual violence, and really supporting the victim in getting to class and staying in school without any negative impacts to their grades or their safety. 10:25 DG: There was a process that allowed a school to really assess for on a case-by-case basis what the students needed that were involved in this process and if the students had the same class or the students were a part of the same team or activity, the school was really encouraged to implement a supportive measure that did not place an undue burden on a victim. So both parties were saying, "You know what, I need this class to graduate." The school was encouraged to favor the victim until they could figure out what happened. Was there going to be an investigation and what type of sanction would be appropriate for any finding. But now the supportive measures can only be implemented if there is no unreasonable burden on any party. Supportive measures cannot be implemented if there's any punitive or disciplinary effect on any party. So this really is interesting, it is concerning. It'll be really interesting to see what types of cases come forward within these supportive measures. It really feels impossible to me for a school to figure this out and how to make sure that any supportive measure they implement doesn't then cause some sort of burden for one or the other party involved. 11:52 DG: I know I said a lot. That is a summary of some of the most significant changes. Of course, there are other changes that we will be talking about in other realms, but hope this is helpful. It's a lot. 12:07 JS: Just so everyone knows, there was about 800 pages of documentation around these changes that Donna sifted through. So those are just some of the highlights. And I... 12:19 DG: And I should say Jackie that I've only gotten through 800, but there's actually over 2000 pages. 12:25 JS: Oh wow. 12:27 DG: A lot of this is still a work in progress, and our analysis will be coming out and we're so grateful to other agencies and partners for their wonderful analysis that they're doing also including the National Women's Law Center. Hats off to them. But yes, there's over 2000 pages, so it is a lot to sift through for sure. 12:51 JS: Absolutely. So you talked about a couple of these changes and how they impact survivors, but are there other concerns that we have around these changes? 13:03 DG: Yeah, I think, a lot of our concerns are rooted in a chilling effect that this may create on campuses. The past guidance, was really a call to action, it was to elevate the needs of sexual assault victims and survivors. It was to prioritize fair and timely and victim-centered processes and to really encourage campuses to take a community-wide approach to sexual violence and its prevention. That there was no wrong door for a victim on a college campus, whether they trusted their RA or a professor or their roommate or a trusted employee or faculty member, that we all played a role in helping our community members that are impacted by sexual assault and the procedures while honoring due process also were really geared to prevent any further trauma for a victim of sexual violence. 14:19 DG: And so with these changes that we've discussed, and other changes that we're still analyzing, we're really worried that, why would a student want to come forward if they don't know that they're going to get a flexibility like a class change or that their assault because it happened off campus doesn't rise to the bar of needing a full formal investigation. Or, "Wow, if I come forward and there is an investigation, I'm gonna have to face a live hearing with cross-examination which can be traumatizing." So a lot of these changes are really leading toward what we, fear is a chilling effect of reports on college campuses, and we know that colleges rely on accurate assessments and knowing the true prevalence of sexual violence on their college campus, in order to prevent it, and in order to help victims and to ensure that they're taking every step possible to prevent the recurrence of sexual violence on their campus. 15:27 DG: So if there's a chilling effect and students are even more marginalized and these reports are even further swept under the rug, we're just worried it's going to undermine the good progress being made with prevention, and victim-centered care and services on college campuses. We also see a possible positive element with some of these changes. When I said earlier that the reporting process has changed, yes, it may close some doors for some students, but it may actually protect the privacy and autonomy of others, so students may want to be able to talk to their RA, they may wanna talk to a trusted professor without that report going to a Title IX Coordinator or starting a formal investigation. So for some students, this may be a good thing and it will only be as good as the informed consent. And the information campuses are putting out there to their campus communities about the process, about the reporting process about the rights and services for all students and what types of procedures will follow with a particular report. 16:51 JS: That makes sense. So our last question, can you tell us what people can do if they're concerned about these changes? 17:01 DG: Yes, I think if they haven't already and they are a Rape Crisis Center advocate or prevention educator we would really encourage you to reach out to your schools. This applies to K-12 and higher education. It will apply differently to K-12, than it will to higher ed. But the first step we would encourage would be a phone call and an email and letters to your schools. This is coming at a time when our nation and our commonwealth are dealing with Covid-19 and just how to even get schools up and running again in the Fall, what does that look like? The effective date of these new rules is August 14th of 2020. So, anything Rape Crisis Centers and other stakeholders can be doing to help schools wrap their heads around these changes and be good partners in preserving any elements of victim-centered trauma-informed procedures and care that we can, is so critical. So I think that's one thing. Make a phone call, write a letter, an email to your school partners talk with your legislators. 18:22 DG: Many members of the House and Senate are really interested and concerned about these rule changes, including our Attorney General, making phone calls to those public officials and public agencies and members of the House and Senate, the governor's office. Governor Wolf has really led the It's on Us Pennsylvania campaign for many years, and is a wonderful leader on campus safety and prevention and services for college students who are affected by sexual violence. Those are two things you can do, you can also write letters to the editor and also look back at PCAR's website. We will be posting our analyses and resources for you very soon to help you carry those forward with your school partners. And also talk with survivors who you're serving at the local level, and help them prepare for these changes. Make sure they know that their advisor of choice can be an attorney and PCAR has a legal assistance project that is available to students on college campuses that don't have legal resources available to them locally. It's so important that they know that that advisor can be an attorney that can represent them with these new changes and really protect their rights. 19:45 JS: Donna, thank you so much for joining us today to talk about Title IX and all of the changes that have happened but unfortunately that's all the time we have today. So thank you everyone for listening to this episode of PA Centered. And for more information, like Danna said, you can visit pcar.org. [music] 20:11 JS: If you or a loved one needs help, a local Sexual Assault Center is available 24/7. Call 1888-772-7227 for more information, or find your local Center online at pcar.org. Together we can end sexual violence. Any views or opinions expressed on PA Centered by staff or their guests are solely their own and do not necessarily reflect the opinions of PCAR or PCAR's funders.