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If Title IX changes, UC Berkeley must protect survivors

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JANUARY 29, 2019

The sexual violence and harassment reporting process remains deeply complicated across America’s college campuses. The issue of sexual assault and the seemingly endless series of high-profile cases of harassment and violence at U.S. colleges demand survivor-centered, equitable solutions. Despite this, the U.S Department of Education has moved forward in its attempts to create a set of deeply troubling policies, which would exacerbate already convoluted processes and do little to address the existing inequities of investigations.

Students at UC Berkeley and across UC campuses have been advocating around the proposed rule changes since last spring. In addition to penning op-eds outlining the detrimental effects of the changes to students and writing an official letter of opposition to the Office of Management and Budget, the EAVP team has traveled to Washington D.C multiple times to meet with the Department of Education’s Office for Civil Rights and more than 48 representatives and senators on all sides of the political spectrum regarding the proposed rule changes. We have also been actively organizing student commentary on UC Berkeley’s campus and across UC campuses in collaboration with the UC Students Association.

The Association of American Universities found in 2016 that 11.7 percent of college students surveyed reported having experienced unwanted sexual contact. UC Berkeley alone has recorded 625 allegations of sexual violence from 2014 to 2018. We need to continue to enact measures that encourage accurate reporting, ensure fair proceedings and hold our university accountable in light of these new rules.

Alarmingly, the Department of Education plans to restrict investigable cases of sexual assault and harassment to only those occurring on campus property. This policy could be dangerous to students as 61 percent of incapacitated sexual assaults and 63 percent of forced sexual assaults occur off campus. House parties, club socials, fraternity and sorority events, and game day tailgates might all be considered “off campus” events. At schools like UC Berkeley, which only has on campus housing for about 22 percent of undergraduates and 9 percent of graduate students, it is essential that off-campus complaints are fully investigable. Although University of California administration has reinforced their commitment to maintaining current procedures for investigations, students at schools across the country face increased vulnerability and additional obstacles to having their complaints duly investigated.

The Department of Education is also proposing a change in the definition of sexual harassment. The new definition, which is limited to “unwelcome 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,” would severely curtail students’ ability to have their complaints addressed. Narrowing the definition to this degree would mean leaving many students without a clear path to resolving incidents of sexual harassment that do not meet the Department’s high standards.

The new rules could exacerbate already severe problems of underreporting. The Department’s new rules could allow alleged assaulters to cross-examine their accusers through a representative. The rules also allow universities to engage in mediation, a policy the Obama administration rejected because of the unbalanced power dynamic it creates and the potential that direct confrontation can have to retraumatize survivors. Subjecting students to cross-examination might make them less likely to report their assault. Only 20 percent of sexual assaults on university campuses are reported to the police. It is unacceptable to introduce any additional obstacles that could disincentivize reporting.

The new rules also include an option for institutions to choose an evidentiary standard, rather than mandating universities to use the preponderance of evidence standard. The Association for Student Conduct Administration holds that “[t]o use any other standard [other than preponderance of the evidence] says to the victim/survivor, ‘Your word is not worth as much to the institution as the word of accused.’” This policy change minimizes the real challenges survivors face in reintegrating into the academic community in the wake of their trauma.

As sexual assault becomes a central problem for students, universities such as UC Berkeley and the Department of Education need to codify accessible rules that encourage reporting and the best practices for investigations while ensuring that institutions are held accountable. The Department claims to be protecting due process for wrongly accused students. However, with only 2-10 percent of reports being false and the far more pervasive problem of underreporting sexual assault, the Department of Education’s massive shift in civil rights policy is inappropriate and does not address the most important issues surrounding campus sexual misconduct.

UC President Janet Napolitano has already spoken out against these new policies. As she affirmed in her op-ed late last year in The Washington Post, students and universities have to work together to shift the culture around sexual harassment and violence in the right direction. We are grateful to the UC system for their leadership on this issue, and urge other universities to reject these changes and emphasize the debilitating effect they will have on our higher education ecosystems.

The policies the government put in place need to be broadly informed by the reality of sexual misconduct on campuses. To adopt these rules would be a step backward. As representatives of the Office of the External Affairs Vice President’s Office in the Associated Students of the University of California, UC Berkeley’s student government, we encourage all students, parents, teachers, elected officials and concerned citizens to make public comment in opposition to these rules, and to urge the Department of Education to improve their wrongheaded policies. It is not too late to have our voices heard, and how we engage with this issue today will shape policies that affect the lives of survivors for years to come.

Nuha Khalfay is a senior at UC Berkeley and is the external affairs vice president (EAVP) of the Associated Students of the University of California (ASUC) and the University Affairs Committee Chair for the UC Students Association. Mark J. Green is a junior at UC Berkeley and is the ASUC EAVP national affairs director. Kylie Murdock is a junior at UC Berkeley and is the ASUC EAVP chief of staff and a peer educator with Greeks Against Sexual Assault (GASA).

JANUARY 29, 2019