Attorneys Speak on Title IX

Two attorneys from Legal Momentum, The Women’s Legal Defense and Education Fund, speak to Fordham students (Kevin Stolten/The Fordham Ram).

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Two attorneys from Legal Momentum, The Women’s Legal Defense and Education Fund, speak to Fordham students (Kevin Stolten/The Fordham Ram).

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By Aislinn Keely

Two attorneys from Legal Momentum, The Women’s Legal Defense, and Education Fund, speak to Fordham students (Kevin Stolten/The Fordham Ram).

Attorneys from Legal Momentum, The Women’s Legal Defense and Education Fund, informed Fordham students of their existing and changing Title IX rights on Tuesday afternoon. Caitlin McCartney-Gerber, staff attorney, and Jennifer M. Becker, senior staff attorney, addressed the complexities of the interim guidance released by the Department of Education at an event sponsored by United Student Government (USG) and the It’s On Us Campaign co-sponsored event, “Legal Rights and Remedies for Student Victims of Sexual Assault: How to Assert Your Rights in School, Court and the Legal Justice System.”

McCartney-Gerber and Becker opened their presentation with the statistic that one in five undergraduate women will experience sexual assault or attempted sexual assault. With this in mind, McCartney Gerber said that sexual harassment, an umbrella term that encompasses multiple actions, can ultimately be considered an act of discrimination under federal law.

Becker addressed the growing concern of cyber sexual harassment, which is included in the term of sexual harassment. This includes actions known by the colloquial terms, “secondary sexting,” “revenge porn” or “sextortion.”

“Not that long ago, these didn’t really fit under crimes anywhere in the US, and so victims and survivors were left with not a lot of recourse…but that’s changing,” said Becker. She referenced that since January Legal Momentum has worked to pass five state laws regarding these types of actions.
However, Becker clarified that harassment need not reach a criminal classification for action to be taken. “In the educational context, when we talk about what conduct can be sex discrimination, can lead to sex discrimination, it doesn’t have to just be conduct that meets the elements of a crime. It’s much broader. Civil rights laws are much broader,” she said.

Title IX, a law that protects against discrimination, accounts for sexual assault due to the possible impact of an assault on the future of a victim or survivor, according to McCartney Gerber. She cited a study from the American Association of University Women that she said showed that “up to about 40 percent of students who experience sexual harassment or violence had direct impacts on their education.”

McCartney-Gerber covered the burden of schools to prevent and respond to sexual assault under Title IX. This includes provisions such as having a Title IX coordinator and proper training for staff as well as providing consent education. Fordham’s Deputy Title IX Coordinator, Dean of Students Christopher Rodgers, is currently under investigation for comments made during resident assistant sexual assault training.

The burden of schools to provide, prevent and respond to sexual assault is unchanged by the Department of Education’s new interim guidance. “This is still true despite any new guidance issued, despite anything you might’ve heard, the law itself has not changed,” said McCartney-Gerber.
McCartney-Gerber and Becker expressed reservations at some of the new guidance issued by the Department of Education, which replaced the 2011 guidance issued under the Obama administration.

Previously, schools were required to adhere to a “preponderance of the evidence” standard when processing sexual assault complaints, but under the new guidance schools are given the option to adhere to a “clear and convincing,” standard. The preponderance of the evidence standard adheres closer to civil court proceedings, requiring the evidence to show “more likely than not” that an assault occurred, while a clear and convincing standard requires a greater degree of likelihood, according to Becker. “There’s really not a good definition even out there for it. It’s not used incredibly often in the justice system either,” she said.

The new guidance also suspends the original 60 day time limit for sexual assault investigations. Schools now have more time for investigations, but they still must adhere to the “prompt” stipulation of the law, although Becker pointed out that this is a relative term.

“I think a lot of times they [schools] may try to use time as a tool to avoid dealing with the situation,” said McCartney-Gerber. She gave examples of an accused student graduating in a few months or a coming summer break.

The interim guidance also suspends the prohibition of mediation by schools in cases of sexual assault. Mediation refers to an informal process where those involved in the investigation discuss the situation together with a mediator. McCartney-Gerber said that she and Becker found this provision “pretty troubling,” as it may prevent a victim or survivor from pursuing more formal courses of action if they have already engaged in mediation, or if an institution advised a victim or survivor to mediate their case and consequently received more stress from the experience.

Becker and McCartney-Gerber encouraged students to learn their school’s policy on sexual assault, which is required to be accessible to students, as well as if any changes will be made with the new interim guidance.

Joan Colleran, FCRH ’20, a member USG Committee Sexual Misconduct and a clerical assistant in Fordham’s Title IX office said she came to the event to learn more about Title IX in light of the new interim guidance. “I think they really gave a good perspective on how Title IX and how schools have to handle sexual harassment is really changing with the new administration,” she said.

MacKenzie Durkin, FCRH ’18, a member of the USG Committee on Sexual Misconduct and co-organizer of the event said USG was trying to find events that would be informative to students who have encountered or experienced issues of sexual assault.

“Given the climate, especially what’s going on with Dean Rodgers, it was just very important for students to know what their rights are going forward and what we can do about that, especially with how Betsy DeVos took back the Dear Colleague Letter,” she said.

Emma Budd, FCRH ’20, consent captain of the It’s On Us campaign and Amanda Belanger, FCRH ’19, survivor and ally resources captain of the It’s On Us campaign co-organized the event with USG.