Title IX changes could shield predatory faculty

August 10, 2020 12:01 am

James Madison University in Harrisonburg. (NBC 12)

By Erin Coogan

People may assume that sexual advances by professors toward students are confined to the scripted drama of movies or television shows like “Legally Blonde,” “You,” or “Jane the Virgin.”

Over the past year, I found myself in the middle of a Title IX case against a longtime, tenured professor. I worked with this professor as a teaching assistant for almost two years. In reality, academia is often fueled by relationships built outside the classroom.

The Department of Education, under Secretary Betsy DeVos, published the final Title IX regulations on May 6, 2020. These regulations will give universities the power to decide which employees are mandatory reporters. Currently, most faculty and staff are mandatory reporters with an exception made for those designated as confidential resources.

My formal complaint was submitted in June of 2019 at James Madison University in Harrisonburg. The professor was found responsible for sexual harassment and creating a hostile work environment for myself and others, but the professor was allowed to continue teaching. However, he left the university shortly after the case concluded. As a survivor of faculty misconduct and having experienced a Title IX case in this capacity, I see how the new regulations deal a dangerous hand to students that endure sexual misconduct particularly at the hands of university employees.

During my case, I slowly began to connect with the women who worked alongside me as well as some alumni who had endured sexual harassment by the same professor. Two of these women described the sexual misconduct that they experienced to JMU’s Title IX coordinator several years before my experience, yet this professor faced no consequences for his behavior. At the time, these students were fearful of making a formal complaint against him because they feared it would damage their academic reputation. Ultimately, the university backed away from these warnings.

Even now, mandatory reporters do not always carry through with their obligation. However, the intent of mandatory reporting is clear: the omission of complaints of sexual misconduct by superiors creates a culture of secrecy and abuse. We have seen this before on a national scale. We all remember the outrage from the events at Michigan State University with former doctor Larry Nasser and at Pennsylvania State University with Jerry Sandusky.

The Department of Education will no longer require universities to train their faculty members on sexual harassment prevention with the exception of faculty members involved in the Title IX process. In 2011, President Obama’s “Dear Colleague” Letter which reinterpreted the procedures of Title IX was sent to all federally funded colleges and established a majority of faculty and staff as mandatory reporters which required them to undergo training when first hired or upon implementation. The Department of Education further states that the training of additional faculty members is at the discretion of each postsecondary institution.

Since then, most universities do not require additional training even as regulations shift between presidential administrations. Longtime employees like the respondent in my case have encountered shifting regulations and changing social and cultural norms surrounding sexual violence in the span of their careers. Without training, these employees may be unfamiliar with their responsibility to report sexual misconduct that is witnessed by them or revealed to them and support services provided by the university. Now, the training will be targeted at Title IX coordinators which leaves only a handful of individuals on campus being required to undergo extensive training on the subject matter.

The Department of Education will allow colleges to designate which employees must, may, and may only with the student’s consent, report sexual harassment to a Title IX coordinator.

The pretext for this change is that the Department of Education under President Trump is more concerned with “respecting the autonomy of students” who do not wish to have their private conversations shared or file a formal complaint than the responsible employee rubric that is currently being used. It is important to note that colleges like JMU may very well continue to designate a majority of professors and provide training to their new employees. However, the Department of Education set a floor, not a ceiling, for what postsecondary institutions must do. In my own case, I was able to use my membership in student government to get my university to commit to annual sexual harassment prevention training for all faculty members, but this is not done by all universities.

These new regulations require universities to investigate accusations of sexual misconduct that are reported to a mandatory reporter through a formal process, and sexual misconduct that occurs in “a building owned or controlled by a student organization that is officially recognized by a post-secondary institution”. Unfortunately, faculty sexual misconduct extends into private residences and public restaurants, oftentimes in the presence of alcohol and other inebriates.

Under the proposed regulations, faculty sexual misconduct that occurs in buildings that are not owned by a university cannot be investigated under such regulations, even though these employees are on the university’s payroll. Faculty sexual misconduct should remain subject to Title IX investigations because faculty members hold formal power over students in their classes and under their supervision.

In the #MeToo era, faculty sexual misconduct still remains and students are dangerously unaware of their rights. This is not a problem of two consenting adults, but a problem of a substantial power imbalance. Abusive faculty members can manipulate students into silence with threats of ruining their academic and professional reputations.

The implementation of these new rules would leave students with fewer options for recourse against predatory professors. Title IX is a federal civil rights law that was passed as part of the Education Amendments of 1972 meant to prevent sexual discrimination, not give more latitude for it.

Erin Coogan is a recent graduate of James Madison University in Harrisonburg.

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