Letter to the Community on Proposed New Title IX Regulations

December 12, 2018

Dear Marlboro Community,

The Department of Education has proposed new Title IX regulations which would require significant changes in how Marlboro addresses claims of sexual harassment, sexual assault and other rights violations. 

This is a matter of deep concern for us all.  In our small community, many of us are aware of the pain and struggles some community members have suffered when these situations have happened.  We want to report to the community our initial reactions and plans for addressing the proposed regulations.

Marlboro has worked hard over the years to ensure that we have dealt with Title IX cases fairly, thoroughly and with respect to our shared community values of safety, learning and inclusiveness. The community has done this work deliberately and carefully in consultation with our Title IX counsel as well as with consultation with community members. We plan to continue this approach and to address the proposed regulations and implementation of them in this manner.

Marlboro College’s Policy and Procedures on Sexual Harassment, Sexual Misconduct, Dating and Domestic Violence, and Stalking and Retaliation are designed to provide fair, thorough, timely and evidence-based investigations of complaints of sexual harassment and sexual misconduct while supporting the complainants and respondents to relieve as much of their stress as possible during the process.

Our procedures provide for an independent assessment of complaints received and investigation by an outside contractor. Both parties have the opportunity for support from college staff and/or support people of their choice and to have input into the investigation at several different points. After an investigation is complete and a recommendation for findings made, the investigation report and findings are reviewed by a Panel drawn from a pool of trained student, faculty, staff and graduate school volunteers. There is an opportunity for input from both parties on any sanctions. Both parties have an equal opportunity for appeal. We recently strengthened our support of respondents and our informal resolution and restorative justice options for resolving claims.

We want to share some initial thoughts while continuing to consider our response to the proposed regulations and the possible impact on the Marlboro community:

  • Many of the proposed regulations are already in federal law and a part of our procedure, including those that endeavor to make the process fair to both parties. These aspects of our policy include equal opportunities for both parties to participate in the process of addressing complaints of sexual harassment and violence as described above.
  • The proposed regulations would allow us to continue to use a preponderance of evidence standard.
  • The draft regulations confirm that we are permitted to continue using alternative dispute resolution and restorative justice procedures when appropriate as members of our community have recommended and requested.
  • The proposed requirements that there be no recommended findings by the investigator, that there be a live evidence hearing with cross-examination of the parties by advisors with disregard of the testimony of those refusing to be cross-examined are highly concerning to us. In the past, Marlboro decided to eliminate live hearings as permitted by law at the time due to the challenges and implications of replicating a court of law on campus and to improve fairness for both parties.
  • The proposed prohibition against persons involved in investigations not to speak with outsiders about the facts could limit the discovery of relevant evidence and fairness to both parties.

The overall effect of a number of these regulations if enacted could be to make the process more complex, stressful and expensive for all involved and lead to less reporting and remedy of sexual harassment and sexual violence at Marlboro.

We want to strongly affirm the rights of Marlboro’s community members to live, study, and work in an environment free from sexual misconduct, sexual harassment, dating/domestic violence, and stalking. Our commitment to making and keeping this goal a reality is strong and continuing.

Marlboro will submit comments to the Department of Educations on the proposed regulations in collaboration with organizations representing colleges and universities during the 60-day notice and comment period which ends on January 28, 2018.  

Thank you to each and every one of you who helps makes Marlboro a community of safety, learning and inclusiveness.

 

Sincerely yours,

 

Kevin F. F. Quigley