CAFSA says Penn’s compliance with latest Title IX policy is ‘extremely unethical’

The United States Department of Education released new Title IX rules that were to be in effect by August 14, a few weeks before the new academic year. Some of Penn's on-campus sexual assault advocacy groups are worried the new regulations will make it harder for victims to seek justice.

The new regulations change many aspects of Title IX regulations — notably, they now allow different third party advisors, who may be attorneys, to cross-examine students involved in the complaint, and they make the definition of "sexual assault" more narrow and subjective. The guideline document from the Department of Education was over 2,000 pages long, while Penn’s newly updated regulations are 16 pages long. 

College junior and CAFSA affiliate Claire Medina feels that the ability to cross-examine on campus is a significant and negative change to regulations, especially for victims who come forward.

“It's important because it relates to this notion of the victim, needing to be perfect, you need to be a perfect victim in order to bring a case,” Medina said. “These policies are written explicitly so that it is as difficult as possible for anybody to have consequences for committing sexual misconduct."

Cross-examination has been said by experts in sexual violence to be irresponsible, and re-traumatizing for victims, and Medina feels it makes the process of seeking justice "more traumatic." Many sexual assault lawyers worry that it will turn these hearings into courtroom-like environments the school is not equipped to manage. But DeVos and other writers of the new policies feel cross-examination makes Title IX processes fairer more transparent for those accused of sexual assault.

CAFSA is also largely frustrated with the new policies because the polices were written with help from men’s rights groups, who seek to prevent discrimination against men, like the National Coalition for Men Carolinas, Families Advocating for Campus Equality, and Stop Abusive and Violent Environments — three groups that have claimed there is a crisis of false rape allegations against male college students. But many popular studies show that false rape allegations are rare, and that to this day most rapes go unreported. 

Medina feels that these men’s rights groups do not properly recognize sexual misconduct as a “pervasive problem,” and the new policies aim to take away focus from victims, which is unfair. 

According to Title IX Officer Michele Rovinsky-Mayer, there are many other notable changes besides cross-examination, including the narrowed definition of sexual harassment. 

While Penn’s definition of sexual violence, relationship violence, and stalking remain unchanged, Penn’s definition of sexual harassment was modified to comply with the new Title IX regulations. 

The new definition is more narrow than prior definitions — it defines sexual harassment as “any unwelcome conduct that a reasonable person would find so severe, pervasive and objectively offensive that it denies a person equal educational access.”

Penn's old definition did not include the adjectives "severe, pervasive, objectively offensive" to describe sexual assault, which Rovinsky-Mayer said the school had to include under the new regulations.

“We currently are compliant, but at the same time, we are making sure that we provide for the members of the University community,” she said.

Under the updated policy for allegations to fall under Title IX, they must have occurred within a Penn educational setting — somewhere on campus or somewhere connected to the University, which was not the case in the past. Regulations are also now only applicable to misconduct in the United States, except if someone alleges sexual misconduct occurred during a study–abroad trip.

The building must be owned by the University for the alleged misconduct to be part of the new regulations. If the alleged misconduct occurred during a University-sponsored off-campus event it would also fall into the jurisdiction of the policy. 

Universities are only obligated to take action against sexual harassment claims that occur off-campus if the locations are being used by an officially recognized organization, like a university-recognized fraternity or sorority. 

Medina feels that these location regulations are a way for Penn to reduce their liability for sexual assault, especially during the pandemic, when many students are living off–campus. 

 "So people are living off-campus, and people are living in University unsanctioned housing means that they are essentially washing their hands of this problem,” they said.

Medina said that these new laws are putting the onus on survivors, calling them “extremely unethical,” and forcing them to work through the criminal justice system on their own. They also think that there is now a higher bar for sexual harassment because of the new definition of sexual harassment, that Penn has included in its updated Title IX policy to comply with national rules.

Penn’s Title IX policy says that not every act that someone may find offensive will necessarily be considered a violation of the University’s standards of conduct. It goes on to say that individual rights, open expression, and academic freedom must be protected when reviewing allegations, which Medina does not think is fair.

Medina called this definition as not "useful or frankly comprehensible," and continued to say that it is dehumanizing for victims.

“The fact that they're writing about [individual rights, open expression, and academic freedom] in a statement that is supposed to be designed to serve victims is incredibly demeaning, and signals a shift in the way that like these instances are going to be taken,” they said. 

Despite these frustrations with the updated Title IX policy, Medina does not think they will drastically affect CAFSA in any way, since CAFSA has never considered Title IX to be "the end all be all" in the fight for sexual assault survivors' rights.

“We have always tried to work for a more comprehensive, proactive approach as opposed to a sort of reactive approach which Title IX is part of,” Medina said. “We have always been focused on trying to prevent assault and make sure that it's not as built into Penn's campus, and built into the way that we structure our lives at Penn.”

The new regulations have also prompted backlash from the American Civil Liberties Union, who filed a lawsuit claiming that by narrowing the definition of sexual harassment the Trump administration is “doing exactly what Title IX prohibits — discriminating on the basis of sex.”