A new take on Title IX

Today, new U.S. Department of Education (DOE) rules on Title IX, the law that prohibits sex discrimination in schools that receive federal funds, took effect. In order to comply with the new federal regulations, Harvard has implemented interim policies and procedures. The Gazette spoke with Title IX coordinator Nicole Merhill to discuss what has changed and how the University was able to implement these changes in the very short timeline set forth by the DOE, with the input of community members across Harvard.

Q&A

Nicole Merhill

GAZETTE: Would you provide some of the context around the U.S. Department of Education’s decision to issue new Title IX rules?

MERHILL: In November of 2018, the DOE published proposed amendments to the Title IX regulations, specifically as applied to sexual harassment, including sexual assault and sexual violence, at elementary, secondary, and post-secondary institutions.

Consistent with the rule-making process, individuals were invited to comment on the proposed regulations. Ultimately, the department received over 120,000 comments, which they were then required to review and consider. This process took over a year and a half and resulted in approximately 2,000 pages of preamble to the final rules themselves, where the department responded to the comments and concerns that were raised during this comment period. The final Title IX regulations, published in May 2020, go into effect Aug. 14, 2020, which means all Title IX policies and procedures must be updated to reflect the new regulations by Aug. 14, 2020. Which brings us to today.

GAZETTE:  That sounds like a quick timeline for implementation.

MERHILL: It is. The DOE gave 70 working days to read and understand a document with more than 2,000 pages and then to implement changes corresponding to that document. By comparison, in October 2014, the DOE published the Violence Against Women Act (VAWA) amendments to the Clery Act, and afforded institutions nearly nine months (until July 2015) to make changes to ensure compliance with the new amendments. That’s a big difference to begin with and the changes to the Title IX regulations are far more expansive than those included in the VAWA amendments. And now, we find ourselves in the midst of a pandemic, with the vast majority of our community members in remote settings, which makes it even more challenging. Of course, we deeply value the input of Harvard’s students, faculty, and staff, and without it, it would be next to impossible to navigate the critical decisions we’ve been forced to make with regard to changing our rules and regulations on Title IX.

GAZETTE:  Yet here we are. Our new Title IX policies and procedures must take effect today, according to federal law. How was the University able to put together these new rules and regulations with all of these hurdles in place?

MERHILL: First and foremost, I am grateful that so many community members did engage in this process this summer, despite the fact that we are all doing our best to navigate the current pandemic, and living and working in towns and cities all over the world. Over the past few months, my team has engaged a diverse set of groups across Harvard, including with students and staff from our Title IX liaison working groups, staff members from the Office of Sexual Assault Prevention and Response (OSAPR), response peer counselors, care peer educators, and members of Our Harvard Can Do Better (OHCDB). We’ve met virtually with the co-presidents of the Undergraduate Council, and with individual students, staff, and faculty members, all of whom provided key input on decision points related to the new requirements set forth by the DOE, and how we could best implement them here at Harvard. There were meetings with individual deans as well as discussions at the Provost’s Council to assure that the viewpoints of many constituencies were represented.

As a preliminary matter, everyone agreed that in light of the challenging timeline, current circumstances, and the importance of these decisions, these policies and procedures should be interim ones. We knew that we must all work together to ensure that they protect the safety of everyone within Harvard’s community, while providing fair processes for the parties involved when instances of sexual harassment or misconduct occur. Over the next 12 months, we will incorporate the experiences and perspectives of community members into closely examining the interim policies and procedures, while making modifications as appropriate to meet the needs of the community and ensuring compliance with the law.

Harvard will enact two interim policies: The first — Harvard University Interim Title IX Sexual Harassment Policy — was developed in response to the recent changes to the Title IX regulations, issued by the Department of Education on May 6 of 2020. The second — Harvard University Interim Other Sexual Misconduct Policy — will address misconduct that falls outside the jurisdiction of the first and was previously addressed under the University’s Sexual and Gender-Based Harassment Policy.

Why do this? Because Harvard remains committed to going beyond the minimum requirements stipulated by the new Title IX regulations and to addressing the same types of conduct we addressed prior to the DOE’s changes.

GAZETTE:  I think you’re beginning to get at one of the major changes required by the DOE, which relates to how sexual harassment is defined according to Title IX, and how Harvard has decided to address this change.

MERHILL: That’s right. Under the new regulations, sexual harassment is defined as conduct that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University’s education, work programs, or activities. The new definition does include quid pro quo harassment, which was included in the prior rules, as well as four new categories of conduct now considered per se sexual harassment. These include sexual assault, dating violence, domestic violence, and stalking. The alleged conduct must happen against a person in the United States on University property or in connection with a University program or activity. The new Title IX regulations require that we dismiss those matters that do not meet this definition but they do allow schools to address the allegations under other misconduct policies within the institutions themselves.

This is a substantial shift from the old definition of sexual harassment as unwelcome conduct that is severe, persistent, or pervasive: concerns have been raised about the use of the conjunctive “and” in the new definition instead of the disjunctive “or” in the old definition, as being more restrictive. Additionally, the old regulations did not require the conduct to take place in the United States and did not include the prescriptive requirement of dismissal, which allowed institutions to go beyond the minimum regulatory requirements.

Many students have raised concerns about the new definition of sexual harassment, in particular as it relates to conduct during study-abroad programs or as part of field sites. Taking into consideration the feedback from the community, we decided it was essential to adopt a second policy — the Other Sexual Misconduct Policy — to address conduct no longer addressed under the new Title IX regulations, including but not limited to conduct that takes place outside of the United States.

“Harvard remains committed to going beyond the minimum requirements stipulated by the new Title IX regulations and to addressing the same types of conduct we addressed prior to the DOE’s changes.”

GAZETTE: What are some of the other major changes you and your colleagues have worked hard to implement over the summer?

MERHILL: One that a lot of individuals are concerned with is the new requirement that colleges and universities provide live hearings when instances of sexual misconduct are reported. Advisers for both parties must be allowed to engage in cross-examination of the parties, witnesses, and advisers during these hearings. This marks a very big change. There were a lot of questions to consider — how do you protect the privacy, and safety, of the parties involved under this new model? Who is going to preside over these hearings — will they be University officials or representatives from outside the University? We’re already at work on building a space for these hearings in the Smith Campus Center that will be designed to preserve the safety and privacy of community members involved in the filing of a complaint of misconduct.

GAZETTE: The DOE has also changed the standard of evidence that can be used in investigations of sexual misconduct, has it not?

MERHILL: Yes. Previous federal guidance mandated that colleges and universities use a “preponderance of the evidence” standard in determining responsibility during the investigation of formal complaints involving sexual harassment and assault. The new Title IX regulations afford institutions the flexibility to choose either a “preponderance of the evidence” or “clear and convincing” standard. In short, “clear and convincing” requires a higher burden of proof.

During our conversations with academic leadership, students, faculty, and staff this summer, the overwhelming response was for us to maintain the “preponderance of the evidence” standard in our procedures for formal complaints of sexual harassment and misconduct, and this is what we are going to do.

GAZETTE: What are some of the other prevailing decision points that community members helped you navigate over the summer?

MERHILL: Let me reiterate just how appreciative I am for all of the thoughtfulness, care, and patience of all of those who have worked with us over the previous few months. There have been many. One example which I already briefly touched upon has to do with identifying who should serve as the decision-maker in a live hearing. Would we have a single hearing decision-maker or multiple ones, would it be made up of individuals internal to the University, or persons external?

What we heard from people is that it would be beneficial to have some internal individuals who are familiar with the culture and structures at Harvard, along with some external to Harvard. We also heard pretty much unanimously from community members that we should have a panel as opposed to a single decision-maker. Based on this input, Harvard will adopt a hybrid panel of two individuals from a list of trained administrators and faculty, and one person from a list of external attorneys.

Another point of decision-making was around the responsible-employee model. Prior to the new rules, and according to Harvard policy, any staff or faculty member who receives notice of harassment, meaning either if someone actually comes to them with a concern, or they’re aware of a potential concern within their community more broadly, is required to share that concern with either a Title IX resource within their School or unit, or with the University Title IX Office. The new Title IX regulations no longer follow the responsible-employee model, and instead identify a much smaller group of individuals as responsible for sharing concerns with Title IX. In meeting with community members throughout this summer we heard, again overwhelmingly, that community members want Harvard to keep this model in place. Again, based on this feedback, the responsible-employee model will remain across both of our new policies.

GAZETTE: What can community members do if they’d like to learn more about, or offer input regarding, the interim policies over the coming year?

MERHILL: It’s important that everyone at Harvard knows that all existing Title IX resources, including those related to training and support, reporting, and investigations, remain in place, even during the difficult times of this pandemic. School and unit Title IX Resource Coordinators remain the primary points of contact for students, staff, and faculty, including for the provision of supportive measures. Title IX trainings, including bystander-intervention training, trainings around gender inclusivity and other topics, continue to happen, along with updates on what is changing with Title IX rules and in the world. An example: Updates to training modules actually now also include an example of harassment on Zoom. We have new prevention initiatives online that individuals can access via our website. Anonymous online reporting still exists. And ODR continues to be able to receive, and investigate, formal complaints — they have long been able to do so, and had remote processes in place long before the spread of the coronavirus.

I’d encourage everyone to read our At-a-Glance document for a quick overview of the changes to Harvard’s policies and procedures on sexual harassment and misconduct. As President [Larry] Bacow has said in the past, all of us at Harvard have a role to play in ensuring that each of us who calls this University home feels welcome, and safe. We’re grateful for the opportunity to engage with so many caring and thoughtful individuals across Harvard’s Schools and units.