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UPDATED: Feb. 12, 2021 at 5:55 p.m.

To Tiffany Brec, many Title IX regulations seem disguised to make the system for reporting sexual and domestic violence appear accessible. In reality, they do the complete opposite. 

Last May, then-Secretary of Education Betsy DeVos finalized several changes to Title IX, a law passed in 1972 that prohibits sex discrimination in schools that receive federal funding.

The changes narrowed the definition of sexual harassment, expanded the ability to subject students who report abuse to cross-examination and required schools to dismiss complaints of sexual misconduct that occur beyond campus-controlled buildings or during educational activities.

“The system is already intense and confusing, and that ends up becoming a barrier for most folks to access it, and in particular, students,” said Brec, who is the campus project coordinator for Vera House, a Syracuse-based organization that works to end domestic and sexual violence. “When you add in these changes to Title IX, it just compounds the mentality that students may have around accessing a system.”

The Department of Education cited the changes as a way to offer survivors of sexual harassment and violence more protection. But Title IX experts said the regulations make reporting misconduct more confusing and traumatic for survivors. While the election of President Joe Biden could mean the reversal of many harmful regulations, experts said it is unclear how long those changes would take and how they might affect college campuses.

Sheila Johnson-Willis, chief equal opportunity and Title IX officer at Syracuse University, said changes to the cross-examination process have had the most significant impact on college campuses. 

The rules put in place under DeVos at the Department of Education put students in a position where they can be cross-examined, an obstacle that may deter people from even reporting their abuse at all, Brec said.

DeVos’ regulations also place limitations on how sexual harassment is defined, Brec said. Under the changes, sexual harassment only includes instances that are “severe, pervasive and objectively offensive.”

“When you look at that definition, it requires a person to go through a situation and experience the most extremes before being able to file a claim under Title IX for sexual harassment,” Brec said.

By constricting the cases to on-campus property, the regulations make it harder for students to learn about which procedures and laws apply for off-campus cases, said W. Scott Lewis, co-founder of the Association for Title IX Administrators and a managing partner at TNG, a risk management law firm for schools and universities.

The new regulations haven’t been in place long enough to quantify how many students have been affected by them, Johnson-Willis said. And Lewis said the pandemic has also limited the sample size of cases that occur on campus.

But colleges and universities, as well as students, have still been able to work with and around the system to make the process easier, Lewis said.

“Campuses have had time to work with organizations like (the Association for Title IX Administrators) on finding ways to work within the regulations that minimize retraumatizing anyone — respondent or complainant — and making it a fair process by shoring up the procedures and maintaining them within the regulations,” Lewis said. 

At SU, students are also subject to state legislation, such as the ”Enough is Enough” law, which Gov. Andrew Cuomo passed in 2015. The law provides uniform guidelines for handling sexual assault cases in New York state, such as providing a definition for affirmative consent. 

Brec said legislation like “Enough is Enough” can also make the processes easier to navigate for students.

“While the students maybe can’t navigate Title IX with these new changes, they do still have the option to navigate the general student conduct process,” Brec said. “So, there is still a system that is accessible to them for holding someone accountable.”

Brec said she is optimistic about how Biden’s administration could change Title IX regulations for college students. Biden helped create the 2014 “It’s On Us” campaign, where he visited several college campuses, including SU, to speak about preventing sexual assault and domestic violence at colleges. 

But updating and changing the regulations won’t happen overnight. While Biden’s administration will likely begin the process of passing new regulations and reinstating old ones that the Trump administration rescinded, the process takes time, Lewis said.

“Once a regulation is made, it’s gone through the administrative procedures,” Lewis said. “It just can’t be reversed. This isn’t a thing where the president can sign an executive order and suddenly the law doesn’t exist.”

The process for changing the regulations will likely include a notice-and-comment period where individuals can provide feedback on the changes being made, Brec said. Students must advocate for themselves and ensure that their perspectives are taken into account, she said.

“Letting your representatives know that this is something that is meaningful to you and finding a way to communicate that and advocate for that is going to be extremely important,” she said.

CORRECTIONS: A previous version of this post stated that students who report sexual assault could be cross-examined by the accused student in a Title IX hearing. The accuser can be cross-examined, but not by the accused. Also, a quote from W. Scott Lewis was paraphrased incorrectly.

Published on February 10, 2021 at 11:00 pm

Contact Maggie: mehicks@syr.edu | @maggie_hickss