C3I Revises Sexual Misconduct Policy

On March 29th, the Campus Climate and Culture Initiative (C3I) released a draft of their proposed United Sexual Misconduct Policy and Procedures. This document was released for general review by all members of the Dartmouth community—students, faculty, staff, and alumni. In a letter accompanying the release, President Hanlon asked that the Dartmouth community not only review the policy, but also offer candid feedback for consideration by the administration prior to the policy’s implementation. This feedback can be given anonymously through a portal located on C3I’s website. All feedback is welcome. However, only feedback submitted before April 9th will be considered in amendments to the policy for the coming academic year—all later comments will be reviewed by the College for future policy updates.

Releasing the United Sexual Misconduct Policy and Procedures is the most substantive action taken thus far by the C3I, which was announced by President Hanlon’s office in January of this year. C3I is intended to work in consort with the two prior campus initiatives launched by President Hanlon’s administration—Moving Dartmouth Forward in 2015 and Inclusive Excellence in 2016. According to its mission statement, C3I aims “to create a learning environment free from sexual misconduct and abuse of power.” To that end, C3I plans to adapt and expand the recommendations for institutions of higher education set out by the National Academies of Sciences, Engineering, and Medicine (NASEM) report  “Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine.” This report, released by NASEM in June of 2018, was written with express focus on female students and professionals working in the sciences, medicine, and engineering. This report discovered “that progress in closing the gender gap in science, engineering, and medicine is jeopardized by the persistence of sexual harassment and its adverse impact on women’s careers in our nation’s colleges and universities.” Following the report, NASEM offered fifteen recommendations for colleges and universities to help combat the adverse effects that sexual misconduct of this nature has on female students and on the institutions themselves. Broadly, these recommendations condemn universities who pay lip-service to federal laws requiring them to address sexual misconduct without making sincere efforts to change the climate and culture of their institutions. Specifically, NASEM’s encourages universities to promote diversity, particularly among leadership, as well as recommending transparent and equitable sexual misconduct policies that
do not differentiate between students and faculty members when addressing instances of sexual misconduct. Through C3I, Dartmouth not only plans to adopt these guidelines, but also to expand upon them—namely, to apply them to the entire Dartmouth community and not just students and faculty in STEM.

            The draft of the new United Sexual Misconduct Policy and Procedures is a substantial stop towards that goal. When adopted, these procedures will supersede all previous Dartmouth procedures regarding sexual harassment, sexual assault, sexual misconduct, dating violence, domestic violence, and stalking. This policy will also apply broadly to all members of the Dartmouth community, including all undergraduates,  graduate students, and any faculty or staff member at any Dartmouth facility. Through this unification and the statement of non-discrimination at the beginning of the policy, this document will replace the ten previous policies and procedures regarding sexual assault. These older policies offered separate guidelines for various different kinds of misconduct as well as separate policies for students and faculty at each of Dartmouth’s  graduate schools. By comparison, this new policy is concise and certainly complies with the (NASEM) recommendation for transparency and equability by presenting the Dartmouth community with a policy that is not overly cumbersome and applies to all community members. Furthermore, President Hanlon’s request for community feedback on the policy is another attempt to establish transparency between the administrators and the Dartmouth community. Other administrators, primarily Theodosia Cook, the new director of C3I, have also been in communication with students and faculty over the campus emailing system encouraging them to offer feedback on the policies before the April 9th deadline so that their feedback may be considered during the review of this policy for the upcoming academic year. In terms of the actual procedural elements of this policy, they do not diverge substantially from the policies currently in effect. Technical definitions for the various kinds of misconduct in this procedure remain largely the same, as do the procedures for resolving reports made against students, faculty, and staff.

Though the College is eager to display its compliance with the NASEM recommendations—both in this policy and in their presentation of it—recommendations by another notable organization seem to have been largely skirted by the College.

 In November of 2018, Secretary of Education Betsy DeVos released her own set of recommendations for American colleges and universities when handling incidents of sexual misconduct. These new federal guidelines came after Department of Education’s Office for Civil Rights dismissed the Obama era Dear Colleague guidelines. DeVos’s new guidelines aim to provide “clarity for schools, support for survivors, and due process rights for all.” They appear to be a response to burgeoning national sentiment that universities prioritize the rights of the accuser over the rights of the accused in their internal sexual misconduct proceedings. In the guideline DeVos emphasizes the critical point that all accused individuals, known as “respondent parties” in Dartmouth’s new proceedings, be treated with the presumption of innocence that would be afforded to them in a formal court of law. This was only one of a handful of directives meant to restore and preserve eroded rights of the accused in these proceedings. Others included the option for universities to move from the “preponderance” standard of evidence which had been mandated by the Obama-era guidelines, to the higher “clear-and-convincing” standard of evidence. DeVos also encouraged the inclusion of a cross-examination and live hearing within the misconduct proceeding as opposed to the investigator-only model currently used in order to guard against abuse by a biased investigator. Finally DeVos also altered the definition of official sexual harassment from the previous definition—harassment that is “severe or pervasive”  to a degree that it denies someone access to an educational program or activity—to a definition of harassment as rhetoric that is “severe, pervasive, and objectively offensive” to a degree that it denies a person such access.

            Perhaps the best critical review of this policy was given by Harvard Law professor Jeannie Suk Gersen in a op-ed published The New Yorker in early February. In her article, Professor Gersen commended certain aspects of DeVos’s policy, stating that they will make “schools’ processes for handling sexual misconduct fairer to all parties.” Gersen pointed out that it was wise of DeVos to offer the option for a university to use the “clear and convincing” standard of evidence—a standard generally used for all non-sexual disciplinary procedures—thus giving colleges at least the option to be equitable in their disciplinary policy. However, she criticized that DeVos did not insist that colleges use the same standard for all proceedings, sexual and non-sexual,  whether that be the “preponderance” standard or the “clear and convincing” standard.  At present, it would be possible for a college to use the “clear and convincing” standard for all non-sexual cases and the “preponderance” standard for all sexual cases while still being in full compliance with federal guidelines.

             Additionally Gersen praised DeVos’s requirement for a live hearing during the misconduct proceeding, pointing out that many colleges now choose to forgo such a hearing. Gersen stated that without a live hearing, colleges run the serious risk of a single biased investigator tainting the outcome of a the entire proceeding.

Gersen also addressed DeVos’s recommendation for a cross-examination within the proceeding. She argued that while this has been the most controversial point in DeVos’s guidelines, with many progressives arguing that it opens the avenue for needless extra trauma to be inflicted on a potential victim of sexual misconduct to a vicious cross examination, Professor Gersen highlighted DeVos’s attempt to guard against such a scenario. The new federal guidelines suggest that this cross examination be conducted by the parties’ advisors, i.e. attorneys, to avoid heated exchanges between students. They also allow for video conferencing should the involved parties choose to avoid a face-to-face interaction altogether.

The only part of the new regulations that received substantial criticism from Gersen was DeVos’s decision to alter the official definition of sexual harassment. Gersen believes that this new, more stringent, definition will functionally prevent colleges from addressing the majority of sexual harassment that takes place in their institutions. Encumbering the College’s ability to address this harassment could undermine the protection advancement of female students and faculty that these policies state as their goal.

Finally, the point of Gersen’s critique that is most relevant to Dartmouth policies is her acknowledgement of the national response to DeVos’s new guidelines. The Obama-era Dear Colleague guidelines were never formally codified into law, nevertheless colleges and universities jumped to comply with them. Despite not being law, we followed them as if they carried the weight of capital punishment. It was at Dartmouth that then Assistant Secretary for Civil Rights, Catherine Lhamon, said of Dear Colleague, “do not think it’s an empty threat.” The DeVos guidelines have not been met with the same reception. That is evident in the draft of United Sexual Misconduct Policy and Procedures.  In this draft, the College asserts its intention to retain the “preponderance” standard of evidence in all sexual misconduct proceedings as well as to exclude cross-examinations in their disciplinary proceedings. Given that DeVos’s guidelines are suggestions and not codified law, these decisions do not mean that the College is breaking any federal law with their proposed policy.  However, it is apparent that the recommendations of the federal government are not considered with the same weight that the recommendations of the National Academies of Sciences, Engineering, and Medicine were considered. Should members of the Dartmouth community wish to change that fact, they can avail themselves of the feedback portal on the C3I website—hopefully someone reads it.