[Senate Hearing 116-432]
[From the U.S. Government Publishing Office]
S. Hrg. 116-432
REAUTHORIZING HEA:
ADDRESSING CAMPUS SEXUAL ASSAULT
AND ENSURING STUDENT SAFETY
AND RIGHTS
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
ON
EXAMINING REAUTHORIZING HEA, FOCUSING ON ADDRESSING CAMPUS SEXUAL
ASSAULT AND ENSURING STUDENT SAFETY AND RIGHTS
__________
APRIL 2, 2019
__________
Printed for the use of the Committee on Health, Education, Labor, and
Pensions
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
41-394 PDF WASHINGTON : 2021
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
LAMAR ALEXANDER, Tennessee, Chairman
MICHAEL B. ENZI, Wyoming PATTY MURRAY, Washington
RICHARD BURR, North Carolina BERNARD SANDERS (I), Vermont
JOHNNY ISAKSON, Georgia ROBERT P. CASEY, JR., Pennsylvania
RAND PAUL, Kentucky TAMMY BALDWIN, Wisconsin
SUSAN M. COLLINS, Maine CHRISTOPHER S. MURPHY, Connecticut
BILL CASSIDY, M.D., Louisiana ELIZABETH WARREN, Massachusetts
PAT ROBERTS, Kansas TIM KAINE, Virginia
LISA MURKOWSKI, Alaska MARGARET WOOD HASSAN, New Hampshire
TIM SCOTT, South Carolina TINA SMITH, Minnesota
MITT ROMNEY, Utah DOUG JONES, Alabama
MIKE BRAUN, Indiana JACKY ROSEN, Nevada
David P. Cleary, Republican Staff Director
Lindsey Ward Seidman, Republican Deputy Staff Director
Evan Schatz, Minority Staff Director
John Righter, Minority Deputy Staff Director
C O N T E N T S
----------
STATEMENTS
TUESDAY, APRIL 2, 2019
Page
Committee Members
Alexander, Hon. Lamar, Chairman, Committee on Health, Education,
Labor, and Pensions, Opening statement......................... 1
Murray, Hon. Patty, Ranking Member, a U.S. Senator from the State
of Washington, Opening statement............................... 5
Witnesses
Hamill, Patricia, Partner, Conrad O'Brien, Philadelphia, PA...... 8
Prepared statement........................................... 10
Goss Graves, Fatima, President and CEO, National Women's Law
Center, Washington, DC......................................... 23
Prepared statement........................................... 25
Summary statement............................................ 48
Suk Gersen, Jeannie, John H. Watson, Jr. Professor of Law,
Harvard Law School, Cambridge, MA.............................. 49
Prepared statement........................................... 50
Summary statement............................................ 55
Meehan, Anne, Director, Government and Public Affairs, American
Council on Education, Washington, DC........................... 55
Prepared statement........................................... 57
Summary statement............................................ 64
Howard, Jeff, Associate Vice President for Student Life and
Enrollment, East Tennessee State University, Johnson City, TN.. 65
Prepared statement........................................... 67
Summary statement............................................ 69
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.
Murray, Hon. Patty:
Letter from 93 Law Professors Regarding Proposed Rulemaking
Nondiscrimination on the Basis of Sex in Education Programs
or Activities Receiving Federal Financial Assistance,
Office of Civil Rights, Department of Education............ 93
American Civil Liberties Union (ACLU), Prepared statement
submitted for the Record................................... 108
Washington School of Law, University of Washington, Prepared
statement.................................................. 141
Braun, Hon. Mike:
Statement for the Record..................................... 143
Kaine, Hon. Tim:
Letter to Hon. Betsy DeVos, Nondiscrimination on the Basis of
Sex in Education Programs or Activities Receiving Federal
Financial Assistance, National Women's Law Center, January
29, 2019................................................... 144
Letter from the Commonwealth of Virginia to Hon. Betsy DeVos,
January 28, 2019........................................... 144
Casey, Hon. Robert:
Letter from the National Council on Disability, and
accompanying report, ``Not on The Radar''.................. 152
Letter from S. Daniel Carter and Taylor Parker, SAFE
Campuses, LLC.............................................. 226
Rosen, Hon. Jacky:
Title IX coordinator from the University of Nevada Reno...... 229
QUESTIONS AND ANSWERS
Response by Patricia Hamill to questions of:
Senator Alexander............................................ 299
Senator Warren............................................... 311
Senator Rosen................................................ 313
Senator Sanders.............................................. 315
Response by Fatima Goss Graves to questions of:
Senator Warren............................................... 319
Senator Rosen................................................ 327
Senator Sanders.............................................. 328
Response by Jeannie Suk Gersen to questions of:
Senator Alexander............................................ 333
Senator Warren............................................... 334
Senator Rosen................................................ 337
Senator Sanders.............................................. 338
Response by Jeff Howard to questions of:
Senator Alexander............................................ 340
Senator Warren............................................... 342
Senator Rosen................................................ 343
Senator Sanders.............................................. 344
REAUTHORIZING HEA:
ADDRESSING CAMPUS SEXUAL ASSAULT
AND ENSURING STUDENT SAFETY
AND RIGHTS
----------
Tuesday, April 2, 2019
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in room
SD-430, Dirksen Senate Office Building, Hon. Lamar Alexander,
Chairman of the Committee, presiding.
Present: Senators Alexander [presiding], Isakson, Cassidy,
Scott, Romney, Murray, Baldwin, Kaine, Jones, Murphy, Hassan,
Rosen, Casey, Warren, and Smith.
OPENING STATEMENT OF SENATOR ALEXANDER
The Chairman. The Senate Committee on Health, Education,
Labor, and Pensions will please come to order. Senator Murray
and I will each have an opening statement. We will then
introduce the witnesses, one of whom is slightly delayed but
who is within sight, so she will be here shortly. After the
witnesses' testimony, Senators will each have 5 minutes for a
round of questions. I just mentioned to Senator Murray, I have
done, with her encouragement, I have done a good deal of
homework on this, and as a result, my opening statement is a
little longer than it otherwise would be, so hope you will
tolerate that.
Today's hearing will focus on how colleges and universities
should respond to accusations of sexual assault. This is an
important and difficult topic, and for that reason, I am glad
that Senator Murray and I have been able to agree, as we
usually do, on a bipartisan hearing, and to agree on the
witnesses. On these issues I have a number of perspectives,
that of a father of daughters and sons, of a grandfather, a
lawyer, a Governor, also a former Chairman of the Board and
President of a large public university.
As University Administrator, my first priority always was
the safety of students. My goal was to quickly and
compassionately respond to victims of alleged assaults,
offering counseling and other support, including assisting the
victim if he or she wished to report the assault to law
enforcement. And my goal was also to protect the rights of both
the accused and the victim to ensure that campus disciplinary
processes were fair. If you are an administrator of one of the
six thousand or so American colleges and universities, and you
were to ask your legal counsel, what laws must the institution
follow when it comes to allegations of sexual assault? Your
counsel would reply, there are several places to look. First
you would look at the Federal statutes. Two Federal laws govern
allegations of sexual assault. All colleges and universities
that receive Federal funds, including Federal financial aid,
must follow those two laws.
First, Title IX of the Education Amendments Act of 1972,
which says, ``no person in the United States shall on the basis
of sex be excluded from participation in, denied the benefits
of, or subjected to discrimination under the education program
or activity.'' Then, in 1999 the Supreme Court ruled that
student on student sexual harassment is covered by Title IX.
And second, there is the Clery Act, as amendment in 2013 by the
Violence Against Women Act, which requires colleges to, ``have
procedures for institutional disciplinary action in cases of
alleged domestic violence, dating violence, sexual assault, or
stalking.'' The Clery Law mandates such proceedings shall
prompt ``a fair, prompt, and impartial investigation, and
resolution'' and ``the accuser and the accused are entitled to
the same opportunities to have others present during an
institutional disciplinary proceeding, including the
opportunity to be accompanied to any related meeting or
proceeding by an advisor of their choice.'' That advisor may be
a lawyer. The law also requires institutions to state in their
procedures, ``the standard of evidence that will be used during
any institutional conduct proceeding,'' but it does not say
what that standard should be.
Next, your counsel would refer you to regulations based
upon the two Federal laws. They also have the force of law.
First, the relevant regulation under Title IX requires schools
to have a disciplinary process, which is defined in the
regulation as, ``a grievance procedure, providing for a prompt
and equitable resolution.'' Regulations under the Clery Act
define a, ``prompt, fair, and impartial proceeding.'' Under
these regulations, the institution, ``may establish
restrictions regarding the extent to which the adviser of
choice may participate in the proceedings.'' Your counsel will
also tell you that sometimes the U.S. Department of Education
will send out a letter or guidance to institutions giving its
interpretation of what a law or regulation might mean. Such
letters or guidance do not have the force of law, they are only
advisory, but campuses sometimes consider them binding as a
law, and unfortunately, Department officials have in the past,
made the same mistake. For example, in 2011 and `14, during the
Obama administration, officials at the U.S. Department of
Education wrote two guidance letters interpreting Title IX,
saying and deciding whether an accused student is guilty of
sexual assault, the decider, ``must use a preponderance of the
evidence standard.'' It was no surprise that many campuses
thought this interpretation was the law, because the Department
acted as if it were the law when it was only advisory.
On June 26, 2014, at a hearing before this Committee, I
asked this former Assistant Secretary for Civil Rights, ``do
you expect institutions to comply with your Title IX guidance
documents?'' and she responded, we do. In September 2017,
Secretary DeVos withdrew both of those letters of guidance, and
a year later, in November of last year, proposed to replace
them with a new rule under Title IX, a process which allows
extensive comment and discussion and would have the force of
law when it is filed. Now that is not all your legal counsel
would tell you.
If you are the President of a public institution, as I was,
where 80 percent of undergraduates attend college, your counsel
would remind you that your disciplinary process must meet the
standards of the 14th Amendment to the U.S. Constitution, which
says, ``nor shall any state deprive any person of life,
liberty, or property without due process of law.'' And then
finally, you would have to look at any applicable state laws.
For example, if you are an administrator at one of Tennessee's
public colleges, as one of our witnesses is, the state's
Uniform Administrative Procedure Act mandates that, ``at public
colleges and universities, a student facing suspension or
expulsion must be given the option to have a full
administrative hearing with the right to counsel and the
opportunity to conduct cross-examination.'' This array of laws
and regulations creates a challenge for college administrators,
for students who allege an assault, and for those who are an
accused to know what the law requires.
The purpose of today's hearing is to hear how we can create
more certainty and how colleges and universities should
appropriately and fairly respond to allegations of sexual
assault. During this hearing, I would like to focus on three
issues raised by the Department's proposed rule. One, the
requirements of due process, including cross-examination. Two,
the effect of the location of the alleged assault. And three,
the definition of sexual harassment. According to an article
published by the Cornell Law Review, more than 100 lawsuits
have been filed by students accused of sexual assault who claim
schools denied them due process.
In one lawsuit, an accused student sued Brandeis
University. The opinion of the Judge of the U.S. District Court
for the District of Massachusetts criticized the Department of
Education's earlier 2011 guidance for causing students to adopt
unfair practices saying, and I want to quote this, ``in recent
years, universities across the U.S. have adopted procedural and
substantive policies intended to make it easier for victims of
sexual assault to make and prove their claims, and for the
schools to adopt punitive measures in response. That process
has been substantially spurred by the Office for Civil Rights
of the Department of Education, which issued a dear colleague
letter in 2011, demanding that universities do so or face a
loss of Federal funding. The goal of reducing sexual assault
and providing appropriate discipline for offenders is certainly
laudable. Whether the elimination of basic procedural
protections and the substantially increased risk that innocent
students will be punished is a fair price to achieve that goal
is another question altogether.''
In February of this year, Supreme Court Justice Ruth Bader
Ginsburg told the Atlantic, ``there has been criticism of some
colleges codes of conduct for not giving the accused person a
fair opportunity to be heard and that is one of the basic
tenets of our system, as you know. Everyone deserves a fair
hearing,'' said Justice Ginsburg.
In an attempt to meet that requirement, the Department's
proposed rule would require a live hearing, which is defined as
a hearing in which ``the decisionmaker must permit each party
to ask the other party and any witnesses all relevant questions
and follow-up questions, including those challenging
credibility. Such cross-examination at the hearing must be
conducted by the party's advisor of choice.'' That is the
proposed rule. It would also allow parties who do not feel
comfortable being in the same room with each other to request
to be in separate rooms, visible by a video feed, for example.
This definition of a live hearing aligns with recent
decisions by the U.S. Circuit Court of Appeals and the
California State Court of Appeals. In the Sixth Circuit, a
student accused of sexual assault sued the University of
Michigan. It alleged the school violated the due process clause
of the 4th amendment when it did not hold a hearing with the
opportunity for the accused to cross-examine his accuser and
other witnesses. The Sixth Circuit ruled in favor of the
accused student saying, ``if a public university has to choose
between competing narratives to resolve a case, the university
must give the accused student or his agent an opportunity to
cross-examine the accuser and diverse witnesses in the presence
of a neutral fact-finder.'' And in California, the State Court
of Appeals for the Second District made a similar finding
stating, when a student, ``a student accused of sexual
misconduct faces severe disciplinary sanctions and the
credibility of witnesses is central to the adjudication of the
allegation, fundamental fairness requires at a minimum that the
university provide a mechanism by which the accused may cross-
examine those witnesses directly or indirectly at a hearing in
which the witnesses appear in person or by other means.''
Some college administrators with whom I have talked, have
said to me, I do not want to turn our campus into a courtroom.
Others point out that the requirements of fairness and due
process often require inconvenient administrative burdens. So,
it seems to me that the question before us, which I hope our
witnesses will help us understand, is how can the law satisfy
the Constitutional requirements of due process without imposing
unnecessary administrative burdens and expense on higher
education institutions.
Now, a second issue is the location of the alleged assault.
The proposed rule requires a school to respond to an allegation
of sexual assault even if it is off-campus if, ``the conduct
occurs within an institution's education program or activity.''
There is some question about the definition of university
program or activity. And a second question is if a university
can choose to go beyond university programs or activities to
protect its students. The third issue is how Federal law or
regulation should define sexual harassment.
The proposed rule uses a definition established by the U.S.
Supreme Court in 1999, which requires the conduct to be, ``so
severe, pervasive, and objectively offensive that it
effectively denies a person equal access to the institution's
education program or activity.'' Some have suggested we look at
other definitions in the Federal law or Supreme Court
precedent. In the future, regulations for the force of law and
guidance letters that are merely advisory will continue to
interpret Federal laws and constitutional requirements,
governing allegations of sexual assault on campus.
But as Congress seeks to reauthorize The Higher Education
Act this year, we should do our best to agree on ways to
clarify these three issues. The more we do that, the more
certainty and stability we will give to the law governing how
institutions of higher education should respond to accusations
of sexual assault.
Senator Murray.
OPENING STATEMENT OF SENATOR MURRAY
Senator Murray. Well, thank you very much, Chairman
Alexander. I am really pleased that this Committee is working
toward a comprehensive reauthorization of The Higher Education
Act that addresses all of the issues students are facing in
higher education. And in order for reauthorization to be truly
comprehensive, it has to address for student-centered
priorities, making college more affordable and addressing the
exploding debt crisis, holding colleges accountable for
students' success, increasing access and opportunities for
historically underrepresented students, and ensuring our
students are able to learn in an environment free from
discrimination, harassment, and assault. We have had a number
of productive discussions in this Committee about the first
three priorities. I am pleased today that we are turning to the
critical issue of campus safety.
Our conversation today is focused on addressing the scourge
of campus sexual assault, and that is very important, but as we
work together on reauthorizing HEA, I hope we also can address
the levels of bullying, and hazing, and harassment happening on
our campuses. We owe that to students like Tyler Clementi who
tragically took his own life after he was bullied by his fellow
classmates, and the students who have died on college campuses
around the country as a result of dangerous hazing practices.
Jeopardizing their safety is not a price students should have
to pay just to get an education.
With that in mind, I want to turn to the topic of our
hearing today, addressing campus sexual assault and ensuring
students' safety. The intention of Title IX was to ensure that
no student can be discriminated against in school on the basis
of sex, and that means schools must respond appropriately to
sexual harassment, rape, or sexual assault. For too long, this
was the unspoken norm on our college campuses. Survivors did
not report their attacks. They were ashamed or afraid they
would be blamed, and when they did come forward, schools would
ignore or hide those stories and refuse to take the necessary
steps to prevent sexual violence going forward. But over the
past few years, brave women and men have come forward, and used
their personal experiences with sexual assault to shine a light
on what has been happening on college campuses around the
country for decades. And for the first time, this epidemic is
finally being taken seriously by schools and universities, by
the public, and by Congress.
I am so in awe of the women and man who have shared one of
the worst moments of their lives in order to let other
survivors know it is okay to come forward, and to try and stop
it from happening to others. But in listening to the stories,
it is clear there is much more that both Congress and colleges
and universities need to do to prevent sexual assault, and to
make sure students feel safe after it does happen. Students
like Sarah, from my home State of Washington. Sarah's school
found she had been raped and yet still forced her to go to
school with her assaulter. Sarah felt that Title IX, ``failed
her entirely.'' Jennifer from Michigan who after reporting
being sexually harassed by a classmate, she felt her case was
written off as, ``insignificant and unbelievable.'' Jennifer
grew into a deep depression because she was not being believed
by school administrators and said Title IX should be,
``strengthened, not defanged.'' And yet defanging campus sexual
assault protection is exactly what Secretary DeVos is proposing
to do. Her proposed rule would weaken protections for students
and allow schools to short their responsibility to keep
students safe.
By only requiring schools to investigate claims that happen
on their campus, it would mean that Britney school would not be
responsible for her rape. Britney was raped in her off-campus
apartment a few years ago, and she said without protections
under Title IX afforded to her, she would have never returned
to finish her degree. By limiting the definition of harassment
and only requiring schools to act if an attack is reported to
specific school officials, Secretary DeVos's proposal would
discourage students from coming forward because they feel they
will not be believed or have their claims taken seriously.
As Alice, a survivor of sexual assault said, there needs to
be a wider definition of sexual assault so survivors can,
``receive the recognition, care, and action they need.'' And by
requiring survivors to be directly cross-examined in live
hearings by the accused or their representatives, this proposal
would mean survivors would have to relive their trauma while
being questioned by people who may be wholly unqualified to
question survivors. Thousands of students, parents, teachers,
and experts across the country have pointed out that parts of
her proposed rule are callus, ignore the experience of
survivors and the advice of experts, and are likely to
discourage students from coming forward.
Chairman Alexander, as we work now to reauthorize the
Higher Education Act, we have to reverse the harmful steps
Secretary DeVos has taken and make meaningful progress to
address campus sexual assault. And as we do that, it is
imperative that we do not turn colleges into fake courtrooms.
Students who have been assaulted have every right to use the
judicial system to seek justice, but schools also have a
responsibility to students. Every student should be treated
equally and fairly. The process should be unbiased and
transparent, and students should know what the process is
before they enter, and it should be consistent for all cases.
And we must have a process that ensures students have access to
an education without being forced to be re-traumatized. We
cannot have the trappings of the judicial system without the
protections of it.
I am pleased we are having this hearing, and I hope as we
continue this conversation, we can continue to lift up the
voices of survivors, listen to their stories, and use them to
influence our decisions. We cannot address this issue without
listening to them and I am so thankful for all of the survivors
who are here in this room today. I stand with you. I am going
to keep fighting to stop what happened to you from happening to
other students. We need a legislative solution to make sure
students are able to get an education without being sexually
harassed or assaulted.
Chairman Alexander, thank you for holding this hearing, and
I look forward to working with you.
Thank you.
The Chairman. Thank you, Senator Murray, and thank you for
your leadership in making sure that we have had this hearing
and that we can deal with it in a bipartisan way. We have five
excellent witnesses today. We look forward to that. And I will
ask Senator Warren to introduce one of those witnesses.
Welcome, Senator Warren.
Senator Warren. Thank you very much, Mr. Chairman. And I
apologize in advance that I am trying to cover multiple
hearings this morning. Thank you for holding this very
important hearing. It is my pleasure today to be able to
introduce my former colleague, Professor Jeannie Suk Gersen.
Jeannie is the John H. Watson, Jr. Professor of Law at Harvard
Law School where she has taught criminal law and procedural
constitutional law and regulating sex on campus. Professor Suk
joined Harvard's faculty in 2006, and in 2010 became the first
Asian American woman to be awarded tenure in the law school's
history. Jeannie, thank you so much for taking time to be here
today to help us discuss this important issue.
As I said, I have other hearings this morning, so if I
cannot make it back, I am going to submit questions for the
hearing's record for you and for the other witnesses to answer.
And I just want to note, based on reading you testimony, I want
to understand more about your objections to Secretary DeVos's
extremely concerning proposals to weaken schools'
responsibilities under Title IX. I find it very alarming, for
example, that Secretary DeVos thinks schools should only be
responsible for assaults that occur on campus or at the school-
sponsored program or activity, ignoring students who may be
victims of assaults that happen, for example, at an off-campus
fraternity party.
Based on your testimony and legal scholarship, I know you
agree that while the discipline process should be fair and
transparent, requiring schools to subject survivors to live
cross-examination undermines Title IX and discourages victims
and witnesses from coming forward. There is an epidemic of
sexual assault and harassment on college campuses across our
country, but instead of addressing the problem and listening to
survivors, Secretary DeVos issues a Title IX proposal that
would narrow the law's protection and sweep campus sexual
assault back under the rug.
Jeannie, I plan to ask you and your fellow witnesses about
these issues. We look forward to your testimony. And thank you
again, Mr. Chairman, for this opportunity to introduce such an
illustrious scholar.
The Chairman. Thank you, Senator Warren. Thank you for the
introduction. I will now introduce the other witnesses.
Patricia Hamill, a Partner with Conrad O'Brien in Philadelphia.
She has extensive experience, primarily representing students
accused of sexual assault both in campus disciplinary
proceedings and in lawsuits they have filed against
universities. Her bachelor's degree is from Bryn Mawr, and her
law degree from the University of Maryland.
Fatima Goss Graves is President and CEO of the National
Women's Law Center. She has spent more than a decade at the
National Women's Law Center where she has worked to combat
harassment and sexual assault, and to advance opportunities for
women and girls. She received her bachelor's degree from the
University of California, Los Angeles. Her law degree from
Yale. Senator Warren has introduced Professor Gersen.
The fourth witness is Ann Meehan, Director of Government
and Public Affairs for the American Council on Education. She
has held that position since 2007. She previously worked in the
Senate as a staff member for Senator Collins. She earned a
bachelor's degree from Kenyon, and a law degree from Duke
University.
Finally, from Tennessee, Dr. Jeff Howard, Associate Vice
President for Student Life and Enrollment at East Tennessee
State University in Johnson City. He overseas student conduct
and Title IX proceedings through the Union Students' Office in
a staffed-advised student conduct board and service resources,
and advocates for all students. Dr. Howard received his
bachelor's degree in History and Political Science, and
doctoral degree in Education and Leadership, all from ETSU.
Thanks to all five of you. If you could summarize your
remarks in 5 minutes. That will leave more time to questions.
As I indicated, several of us were interested in the issues of
the location of the alleged sexual assault, the definition of
sexual harassment, and the definition of the requirements of
due process, especially cross-examination. So, Ms. Hamill, let
us begin with you.
STATEMENT OF PATRICIA HAMILL, PARTNER, CONRAD O'BRIEN,
PHILADELPHIA, PA
Ms. Hamill. Thank you, Chairman, and Ranking Member Murray,
and Members of the Committee. And thank you for inviting me to
testify here today on this important matter. My name is
Patricia Hamill, and as Chairman Alexander stated, I am a
Partner at the Philadelphia Law Firm of Conrad O'Brien, where I
head up the firm's nationwide Title IX due process and campus
discipline practice. I hope my experience, which I will share
here today, will assist this Committee in addressing safety and
student rights in the context of campus sexual assault.
I believe I bring a unique perspective to these issues. I
am a feminist, married to a woman, graduate of a women's
college, and the mother of two teenage sons and a daughter
currently in college. So, it may surprise you that in the past
6 years I have devoted a large portion of my legal practice to
representing more than 100 students, mostly though not
exclusively men, accused of various levels of sexual
misconduct. This is not a partisan issue. It is a fundamental
principle of our democracy that all persons are entitled to a
fair hearing.
I first want to point out that many campus procedures are
an effort to correct for decades of failure to take claims of
sexual assault seriously. Let me be very clear, sexual assault
on college campuses is a serious problem, but the corrective to
past inadequate responses to sexual assault is not to presume
that accused people are guilty, deprive them of the ability to
defend themselves, and punish them without a full consideration
of the facts. I am concerned by the national polarization on
this issue and by the apparent assumption by many that measures
to give accused people, usually men, a fair hearing are a
strike against justice for women.
What is often missing from the public discourse is an
understanding that misconduct occurs on a spectrum, and often
there are plausible competing narratives and no independent
witnesses or corroborating evidence. In my written testimony, I
outline how complex these cases can be, and how difficult it
can be to determine exactly what happened. Let me give you a
sense of a typical scenario.
A young man, 18 or 19 years old, calls us. He went to a
college party, drank alcohol, and had a sexual encounter with a
young woman. Both were tipsy, maybe even drunk, but not
incapacitated. He felt that the encounter was mutual and fully
consensual. After the encounter, the two had a few friendly
interactions, but nothing more. Days, months, or even years
later, he is notified by the Title IX Office that he has been
accused of sexual assault. If a lot of time has passed, he may
not remember the encounter very well, but he is someone who
takes consent seriously and is certain it was consensual. He is
ostracized and afraid no one will listen to him. He is certain
that the system already assumes he is guilty and that he will
suffer lasting consequences, kicked out of school, and
permanently branded. I can assure you that this is not a rare
situation as some would have you believe.
This Committee is in a position to ensure fair processes
for all parties, which include adequate support services,
thorough and fair investigations, procedures for informal
resolution, and if a formal hearing is required, that both
parties get to fully present their positions and both are
fairly questioned, respectfully and thoroughly. I want to
address a critical component of this process. Much opposition
has been expressed about live hearings and direct questioning,
but they are critical to a fair process. They allow
decisionmakers to get as clear an understanding as possible of
what occurred from everyone's perspective. They allow advocates
for each party to thoroughly and respectfully explore people's
memory and credibility.
Some have suggested that cross-examination by written
question should be used, but this does not allow for a true
exploration of these situations. There is no dialog, no flow,
no opportunity to follow-up. Mr. Chairman, I do understand the
emotional distress and chilling effect direct questioning can
have, but that is the case for both parties. And if we are to
ensure a fair process, every reasonable effort to get at the
truth must be pursued. There is too much at stake to do
anything less. In closing, I want to stress that though my
focus here today has been drawn from my representation of male
students, I have represented women too, both complainants and
respondents.
While the erosion of due process protections in campus
disciplinary proceedings has so far primarily impacted man, it
is leading to injustice and insecurity for everyone. In my
written testimony, I reflect on some recent cases in which
women have been accused. I believe both complainants and
respondents have a right to be heard. Neither has a right to be
automatically believed. If we want fair processes for ourselves
and our loved ones, we must support fair processes across the
board.
Thank you.
[The prepared statement of Ms. Hamill follows:]
prepared statement of patricia hamill
I. INTRODUCTION
As Congress considers reauthorizing the Higher Education Act (HEA),
I have been asked to testify before this Committee on what a fair
process in a campus disciplinary proceeding involving alleged sexual
assault should include. I thank you for this opportunity.
I bring a unique perspective to these issues, and a deep
understanding of the challenges faced by all the interested parties. I
am a partner at the Philadelphia law firm Conrad O'Brien, P.C., and
Chair of the firm's nationwide Title IX, Due Process and Campus
Discipline practice. I am also a feminist, married to a woman, graduate
of a women's college, and the mother of two teenage sons and a daughter
who is in college. Given my personal background it may seem incongruous
that I have, over the past six years, represented more than a hundred
students and academic professionals, mostly men, who have been accused
of various levels of sexual misconduct. But it is a fundamental
principle of American jurisprudence that all persons are entitled to a
fair hearing. My task as an attorney is to advocate for fair,
objective, and reliable Title IX proceedings, and I see that as a
nonpartisan issue. \1\
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\1\ Patricia Hamill is a partner at the Philadelphia law firm
Conrad O'Brien, P.C., and Chair of the firm's nationwide Title IX, Due
Process and Campus Discipline practice. She represents college students
and academic professionals in disciplinary proceedings and related
litigation. Patricia is a frequent speaker on Title IX litigation and
related issues to audiences including Title IX coordinators, advocacy
groups, and attorneys. Patricia is also a commercial litigator who
represents clients in white-collar and internal investigations, and is
a member of the firm's three-person Executive Committee.
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Before addressing the question of fair process, I want to draw
attention to the fact that many of the campus procedures now in place
are an effort to correct for decades of sexual assault claims not being
taken seriously or, worse, being completely ignored. I want to be
perfectly clear. Sexual assault on and related to college campuses is a
serious problem. I am heartened whenever women (and, though less
commonly, men) come forward and speak up, when their concerns are taken
seriously and properly investigated, and when they are given the
support they need both during and after a disciplinary process,
regardless of the outcome.
However, we must be careful not to allow current disciplinary
processes to be marred by the sins of the past, however oppressive and
heinous they may have been. The corrective to inadequate responses to
sexual assault, whether past or present, is not to presume that accused
people are guilty, deprive them of the ability to defend themselves,
and punish them without a full consideration of the facts from both
parties' perspectives. I am concerned by the national polarization on
these topics, and by the apparent assumption by many that measures to
give accused people--usually men--a fair hearing are a strike against
justice for women. Title IX prohibits gender discrimination, and the
effort to correct discrimination against one gender does not justify
discrimination against others. What is often missing from the public
discourse is an understanding that misconduct occurs on a spectrum, and
often there are plausible competing narratives and no independent
witnesses or corroborating evidence. Many cases involve encounters
between young people who are sexually inexperienced, are engaged in the
casual hook-up culture prevalent on campuses, or both. They may have
misread or misinterpreted each other's feelings or intent. Often both
parties have consumed alcohol or drugs, further diminishing their
ability to make clear decisions, communicate effectively, or remember
what happened. In addressing contested cases--whether they involve
sexual or any other form of serious misconduct -our nation's
fundamental values require fairness to both parties, a thorough and
impartial investigation, and a fair hearing before impartial
decisionmakers. \2\
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\2\ As the American Civil Liberties Union has observed:
``Conventional wisdom all too often pits the interests in due process
and equal rights against each other, as though all steps to remedy
campus sexual violence will lead to deprivations of fair process for
the respondent, and robust fair process protections will necessarily
disadvantage or deter complainants. There are, however, important ways
in which the goals of due process and equality are shared. Both
principles seek to ensure that no student--complainant or respondent--
is unjustifiably deprived of access to an education. Moreover, both
parties (as well as the schools themselves) benefit from disciplinary
procedures that are fair, prompt, equitable, and reliable.'' ACLU
Comment, https://www.aclu.org/letter/aclu-comments-title-ix-proposed-
rule.
In the words of one judge, commenting on college disciplinary
procedures that ``appear[] to have substantially impaired, if not
eliminated, an accused student's right to a fair and impartial process,
it is not enough simply to say that such changes are appropriate
because victims of sexual assault have not always achieved justice in
the past. Whether someone is a `victim' is a conclusion to be reached
at the end of a fair process, not an assumption to be made at the
beginning. Each case must be decided on its own merits, according to
its own facts. If a college student is to be marked for life as a
sexual predator, it is reasonable to require that he be provided a fair
opportunity to defend himself and an impartial arbiter to make that
decision. Put simply, a fair determination of the facts requires a fair
process, not tilted to favor a particular outcome, and a fair and
neutral fact-finder, not predisposed to reach a particular
conclusion.'' Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 573 (D. Mass.
---------------------------------------------------------------------------
2016).
Providing a fair process and impartial decisionmakers will make
each individual disciplinary proceeding and outcome more reliable, and
will benefit complainants, respondents, schools, and their officials.
At the same time, our focus should not simply be on addressing
situations after-the-fact: as a nation, we should consider other steps
to address the conditions and attitudes that lead to contested sexual
assault complaints, including excessive use of alcohol and drugs, and
to provide more effective education on consensual sexual conduct. \3\
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\3\ I share the concern that many women have been subjected to
inappropriate conduct. However, the claim that one in five women is
sexually assaulted in college, a claim that has been the basis for
advocacy efforts, disciplinary processes, and government policy
decisions, is based on anonymous surveys, not scientific studies, and
has been seriously challenged. E.g., https://www.washingtonpost.com/
news/fact-checker/wp/2014/12/17/one-in-five-women-in-college-sexually-
assaulted-an-update/?utm--term=.7f211e30541e; https://
www.washingtonexaminer.com/no-1-in-5-women-have-not-been-raped-on-
college-campuses; http://www.slate.com/articles/double--x/doublex/2015/
09/aau--campus--sexual--assault--survey--why--such--surveys--don--t--
paint--an--accurate.html. The Bureau of Justice Statistics' National
Crime Victimization Survey reports a much lower rate of sexual assault:
6.1 per 1000 female students from 1995 to 2013, with the rate trending
downwards. https://www.bjs.gov/content/pub/pdf/rsavcaf9513.pdf.
Advocates for reported victims also often suggest false accusations of
sexual assault are rare. This too has been disputed, has been
undermined by some high profile cases, and does not appear to take into
account the wide spectrum of situations in which complaints can arise.
But let's not let the mission of this Committee be sidetracked by
surveys and statistics, whether reliable or not. Even one assault is
too many. My point here is about ensuring a fair process. Regardless of
the accuracy of surveys, the decision in any particular case should be
based on the facts of that case, objectively and fairly assessed.
I present my comments as follows. First, I give some historical
background--how did we get where we are today, and how and why is the
federal government involved? (Pages 4-7). As discussed below, starting
in 2011, U.S. Department of Education guidance and other federal
government initiatives have changed the way sexual assault is
adjudicated on school campuses. Concerns have been growing, however,
that procedures developed to address sexual assault allegations are not
effective for people who report sexual assault, are eroding fundamental
protections for people who are accused, and are undermining the
legitimacy of campus disciplinary proceedings and outcomes. These
concerns have been voiced in public and scholarly commentary, by
universities and colleges, in an increasing number of opinions from
federal and state courts, in several state legislatures, and in new
guidance and proposed Title IX regulations from the Department of
---------------------------------------------------------------------------
Education.
Second, I give a brief overview of the Department of Education's
current approach, including its proposed Title IX regulations, and how
the proposed regulations match up with my experience and
recommendations. (Pages 7-10). Overall, I support the Department's
efforts to align Title IX regulatory requirements with basic principles
of justice, with court precedent requiring fair procedures for people
accused of serious misconduct, and with Title IX's proscription of all
gender discrimination. I also support the Department's proposal to give
schools and parties more flexibility to pursue informal, non-punitive
resolutions. At the same time, commenters have expressed legitimate
concerns about some of the proposed provisions, particularly the
definitions and conditions that give rise to schools' duty to respond,
and there is room for discussion and compromise.
I conclude by identifying key procedural protections which, under
our nation's system of law, are required for fair and reliable
determinations, including notice, impartial decisionmakers, thorough
and fair investigations where both exculpatory and inculpatory evidence
is gathered and considered, a meaningful opportunity to be heard
(including the opportunity for the parties to present their positions
and confront the testimony against them in a live hearing before
decisionmakers), a presumption that the respondent is not responsible
unless the applicable standard of proof is met, decisions based on the
facts of the particular case, and, if there is a finding of
responsibility, sanctions proportionate to the conduct. (Pages 10-15).
II. HISTORICAL BACKGROUND
Title IX of the Education Amendments of 1972 provides that ``[n]o
person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance . . . .'' \4\ As interpreted by federal
courts, gender discrimination under Title IX includes sexual assault
and sexual harassment. The United States Department of Education's
Office of Civil Rights (OCR) is the federal agency in charge of
enforcing Title IX compliance.
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\4\ 20 U.S.C.--1681(a).
Starting in 2011, the federal government began to take aggressive
steps to combat what it viewed as an epidemic of sexual assault on
college campuses, focusing on countering discrimination against women.
On April 4, 2011, OCR issued a ``significant guidance document'' known
as the 2011 ``Dear Colleague letter,'' stating that ``about 1 in 5
women are victims of completed or attempted sexual assault while in
college'' and setting forth steps schools should take to end sexual
harassment and violence. \5\ Among other things, the letter defined
sexual harassment broadly as ``unwelcome conduct of a sexual nature,''
conflating cases based on conduct with cases based on speech; \6\
stated that ``mediation is not appropriate even on a voluntary basis''
in cases involving alleged sexual assault; \7\ directed schools to
ensure ``steps taken to accord due process rights to the alleged
perpetrator do not restrict or unnecessarily delay the Title IX
protections for the complainant''; \8\ directed schools to take interim
steps to protect complainants and ``minimize the burden on the
complainant''; \9\ ``strongly discourage[d]'' schools from allowing
cross-examination of parties; 1A\10\ and urged schools to focus on
victim advocacy. \11\ The letter also stated that schools ``must use a
preponderance of the evidence standard (i.e., it is more likely than
not that sexual harassment or violence occurred),'' and must not use
the ``clear and convincing standard (i.e., it is highly probable or
reasonably certain that the sexual harassment or violence occurred.).''
\12\
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\5\ Letter from Russlynn Ali, Ass't Sec'y for Civil Rights, U.S.
Dep't of Educ., OCR, at 2 (Apr. 4, 2011), http://www2.ed.gov/about/
offices/list/ocr/letters/colleague-201104.pdf.
\6\ Id. at 3.
\7\ Id. at 8.
\8\ Id. at 12.
\9\ Id. at 15-16.
\10\ Id. at 12.
\11\ Id. at 19 n.46.
\12\ Id. at 11.
Although the letter was framed as ``guidance'' and did not go
through the procedures required for formal, binding regulations, much
of its language--including the standard of proof provision--is
mandatory. And the letter specifically warned that ``[w]hen a recipient
does not come into compliance voluntarily, OCR may initiate proceedings
to withdraw Federal funding by the Department or refer the case to the
U.S. Department of Justice for litigation.'' \13\
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\13\ Id. at 16.
In 2014, OCR released additional guidance in which it reiterated
many of the directives set forth in the 2011 Dear Colleague Letter,
including the injunction to ``ensure that steps to accord any due
process rights do not restrict or unnecessarily delay the protections
provided by Title IX to the complainant.'' \14\ The same year, a White
House Task Force was created, co-chaired by the Office of the Vice
President and the White House Council on Women and Girls, with a
mission ``to tell sexual assault survivors that they are not alone''
and ``help schools live up to their obligation to protect students from
sexual violence.'' \15\ The Task Force's first report opened with the
claim that ``[o]ne in five women is sexually assaulted in college,''
stated that the federal government was ramping up Title IX enforcement
efforts, and stressed again that schools found in violation of Title IX
risked losing federal funding. \16\ Among other things, the Task Force
supported the use of a single investigator model, which generally
involves one school official serving as investigator, prosecutor, and
decisionmaker and severely limits the respondent's ability to challenge
the complainant's account. \17\ The Task Force also encouraged colleges
and universities to provide ``trauma-informed'' training for their
officials, stating that ``when survivors are treated with care and
wisdom, they start trusting the system, and the strength of their
accounts can better hold offenders accountable.'' \18\ The report
stated that the Justice Department, through its Center for Campus
Public Safety and its Office on Violence Against Women, was developing
trauma-informed training programs. \19\ Ultimately, the Department of
Justice funded a ``Start by Believing' campaign that seeks to train
investigators to investigate cases from an initial presumption of guilt
and write reports ``that successfully support the prosecution of sexual
assault cases'', including by presenting events ``from the victim's
perspective''; focusing on evidence that ``corroborate[s] the victim's
account''; focusing on ``what the victim was thinking and feeling;''
and ``always us[ing] the language of non-consensual sex.'' \20\
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\14\ Questions and Answers on Title IX and Sexual Violence,
https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
\15\ Not Alone: The First Report of the White House Task Force to
Protect Students From Sexual Assault, p.2, https://www.justice.gov/ovw/
page/file/905942/download.
\16\ Id. at 2, 17.
\17\ Id. at 3, 14.
\18\ Id. at 3.
\19\ Id.
\20\ See End Violence Against Women International (EVAWI),
Effective Report Writing: Using the Language of NonConsensual Sex, at
5, 10, 14 https://www.evawintl.org/library/
DocumentLibraryHandler.ashx?id=43 (emphasis original); Campus Action
Kit, Start by Believing, https://www.startbybelieving.org/wp-content/
uploads/2018/08/Campus-Action-Kit.pdf.
On May 1, 2014, as part of its aggressive enforcement, OCR
published a list of 55 higher education institutions nationwide that
were under investigation for possible Title IX violations. \21\
According to the Chronicle of Higher Education, that number eventually
grew to over 500. \22\
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\21\ U.S. Department of Education Releases List of Higher
Education Institutions with Open Title IX Sexual Violence
Investigations (May 1, 2014), https://www.ed.gov/news/press-releases/
us-department-education-releases-list-higher-education-institutions-
open-title-ix-sexual-violence-investigations.
\22\ Title IX, Tracking Sexual Assault Allegations, Chronicle of
Higher Education, https://projects.chronicle.com/titleix/.
In response to the federal government's directives and enforcement
activities, schools have adopted special policies for disciplinary
proceedings involving alleged sexual misconduct. The policies are
administered by designated officials and include investigatory and
decision-making processes, evidentiary standards, and appeal processes
based on OCR's actual and perceived requirements. In many instances,
the policies and processes are very different from those used to
resolve other campus disciplinary matters, including matters involving
allegations of serious non-sexual misconduct. Many schools have gone
even further than OCR's specific directives, essentially eliminating
due process protections for respondents--the great majority of whom are
male--in proceedings involving alleged sexual misconduct. Trauma-
informed and ``#BelieveWomen'' approaches have been applied in ways
that lead school officials (and the community at large) to presume that
an alleged assault occurred or that a complainant's account of an
incident must be true. Students and academic professionals are
suspended, expelled, or pushed out of their positions without
meaningful notice or opportunity to be heard, and are left with records
that permanently brand them as sexual offenders, devastate them
personally, and severely impact their educational and career
opportunities. In this age of social media and the Internet, the mere
mention of a sexual misconduct accusation can have the same negative
and ongoing effects as a finding of responsibility, even if the accused
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is exonerated.
Since 2011, some 400 students have filed lawsuits asserting that
their schools disciplined them for alleged sexual misconduct without
providing a fair process or following the schools' own procedures. In
over 100 of those cases, federal and state courts have written opinions
raising concerns about the lack of meaningful procedural protections in
campus Title IX proceedings. \23\
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\23\ For a sampling of articles and court opinions expressing
concerns about the erosion of procedural protections, see Foundation
for Individual Rights in Education (FIRE), Mountain of evidence shows
the Department of Education's prior approach to campus sexual assault
was ``widely criticized'' and ``failing'' (Nov. 15, 2018), https://
www.thefire.org/mountain-of-evidence-shows-the-department-of-
educations-prior-approach-to-campus-sexual-assault-was-widely-
criticized-and-failing/; see also Comments of Eric Rosenberg, Cynthia
Garrett, Kimberly Lau, and KC Johnson on proposed Title IX regulations
(Jan. 8, 2019), https://www.regulations.gov/document-D=ED-2018-OCR-
0064-6244 (discussing case law foundations for many provisions in the
proposed Title IX regulations). I have included FIRE's summary of cases
in an appendix, along with more detailed summaries of key cases cited
in the FIRE article and cases decided since the article was published.
---------------------------------------------------------------------------
III. THE DEPARTMENT OF EDUCATION'S CURRENT APPROACH
In response to the developing case law and escalating concerns that
individual Title IX complaints are not being justly resolved, the
Department of Education has modified its position on Title IX
enforcement. In September 2017, it withdrew the 2011 Dear Colleague
Letter and the 2014 Questions and Answers on Title IX Sexual Violence,
and released a new interim Q&A on Campus Sexual Misconduct to guide
schools on how to investigate and adjudicate allegations under federal
law. In November 2018, it issued a Notice of Proposed Rulemaking
including proposed amended Title IX regulations. \24\ Over 100,000
comments have been filed by legislators, colleges, students, attorneys,
and other organizations and citizens, and the Department is in the
process of digesting and considering them.
---------------------------------------------------------------------------
\24\ Nondiscrimination on the Basis of Sex in Education Programs
or Activities Receiving Federal Financial Assistance, https://
www.federalregister.gov/documents/2018/11/29/2018-25314/
nondiscrimination-on-the-basis-of-sex-in-education-programs-or-
activities-receiving-federal.
Broadly speaking, the proposed regulations have three aspects:
first, definitions and conditions that activate a school's obligations
under Title IX; second, provisions giving schools more flexibility to
take constructive, non-punitive steps to resolve specific concerns and
prevent recurrence of inappropriate behavior while still ensuring that
both parties can pursue their education; and third, procedural
---------------------------------------------------------------------------
protections required for formal Title IX proceedings.
Along with a number of colleagues, I have submitted detailed
comments on the proposed regulations. \25\ Overall, I support the
Department's efforts to align Title IX regulatory requirements with
basic principles of justice and court rulings calling for fair
procedures for individuals accused of serious misconduct, including the
specific procedures I discuss below. As the Department has
acknowledged, Title IX is concerned with all forms of gender
discrimination, and a school's treatment of either a complainant or a
respondent in connection with a sexual harassment complaint may
constitute discrimination on the basis of sex. Discrimination in favor
of complainants, who are almost always female, and against respondents,
almost always male, is pervasive in campus Title IX proceedings, and
the proposed regulations take crucial steps toward addressing it. Even
apart from the regulations, courts are requiring schools to protect due
process and avoid gender discrimination. To the extent Congress
considers legislation to address these issues, any provisions must be
constrained by constitutional principles and other statutory
protections. A society dedicated to equal justice under law cannot
function if we abandon basic fairness and due process principles in
reaction to particular types of cases. \26\
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\25\ See Comments of Concerned Lawyers and Educators in Support of
Fundamental Fairness for All Parties in Title IX Grievance Proceedings,
signed by 40 practicing lawyers and professors (Jan. 28, 2019), https:/
/conradobrien.com/uploads/attachments/cjrjac2cb0cmt01iw4vzo4aev-
comments-of-concerned-lawyers-and-educators-in-support-of-fundamental-
fairness-for-all-parties-in-title-ix-grievance-proceedings-1-28-
2019.pdf; Comments of Patricia M. Hamill (Jan. 28, 2019), https://
conradobrien.com/uploads/attachments/cjrjaco9u0cmszciwf8gq9jfj-comment-
of-p-hamill-on-proposed-title-ix-regulations-1-28-2019.pdf. In my
individual comments, I set forth scenarios drawn from cases involving
accused students to illustrate why procedural reforms are so badly
needed. Other comments to the regulations include personal stories
reinforcing this point. Some involve students who were found
responsible after a blatantly unfair proceeding. In others, the accused
student was ultimately exonerated, but still suffered significant and
lasting damage due to the mere fact of the accusation or how the
proceedings were handled.
\26\ The Department's confirmation, in proposed Section 106.45(a),
that a school's treatment of either a complainant or a respondent may
constitute discrimination on the basis of sex, is an essential step
toward correcting the view that Title IX allows (or should even be
interpreted to require) procedures that are biased in favor of
``victims'' (again, almost always women). Title IX proceedings should
be fundamentally fair to all genders. Schools routinely argue in court
proceedings that Title IX does not preclude ``pro-victim'' bias and
some courts have accepted that argument, though others have not.
Compare, e.g., Doe v. University of Oregon, No. 6:17-CV-01103-AA, 2018
WL 1474531, 15 (D. Or. Mar. 26, 2018) (suggesting that bias against an
accused male would not violate Title IX if it ``stemmed from a purely
`pro-victim' orientation,'' and that it would be lawful if a
university, ``in an attempt to change historical patterns of giving
little credence to sexual assault allegations, has adopted a
presumption that purported victims of sexual misconduct are telling the
truth''), with Noakes v. Syracuse Univ., No. 5:18-CV-43, 2019 WL 936875
(N.D.N.Y. Feb. 26, 2019) (holding that allegations of flawed and pro-
complainant proceedings, in combination with allegations of general and
university-specific pressure to believe complainants and crack down on
accused offenders, suffice at the motion to dismiss stage to plead
gender bias).
I also support the Department's proposal to give complainants who
report conduct covered by Title IX a meaningful choice between a formal
Title IX process or an alternative dispute resolution, and the
corresponding requirement that schools provide supportive, non-punitive
individualized services designed to restore or preserve both parties'
access to the school's education programs and activities, whether or
not formal proceedings are pursued. The Department's expressed goal is
not to limit protections for complainants, but to provide more options,
acknowledging that college students are adults and different resolution
processes may be appropriate for different individuals and different
situations. \27\ As I said before, the facts in many contested sexual
misconduct cases are nuanced and complicated. I agree with the
Department's observation, based on ``feedback from many stakeholders,''
that ``often the most effective measures a recipient can take to
support its students in the aftermath of an alleged incident of sexual
harassment are outside the grievance process and involve working with
the affected individuals to provide reasonable supportive measures that
increase the likelihood that they will be able to continue their
education in a safe, supportive environment.'' \28\ Informal resolution
processes are equally, if not more, appropriate when a complainant
reports conduct that is not covered by Title IX, for example, conduct
that is unwelcome but not necessarily severe or pervasive and does not
constitute assault. \29\
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\27\ 83 FR at 61462, 61470.
\28\ 83 FR at 61470.
\29\ Even commenters who oppose other aspects of the regulations
have welcomed the provisions giving schools more power to pursue
informal resolutions, including restorative justice or mediation. To
quote just one of a number of similar comments: ``Students and
institutions alike desire the power to settle these disputes in a
productive manner rather than being arbitrarily forced into a one-size-
fits-all solution.'' Association of Governing Boards of Universities
and Colleges, https://www.regulations.gov/document?D=ED-2018-OCR-0064-
7550.
At the same time, however, certain aspects of the proposed
regulations have given rise to legitimate concerns, and there is room
for clarification and compromise. In particular, in setting forth the
definitions and conditions that give rise to a school's duty to respond
under Title IX, the Department's apparent intent was to restrict formal
Title IX proceedings to cases of alleged misconduct that interfere with
a complainant's participation in an educational program or activity,
consistent with the language of Title IX and with court decisions. But
even commenters who welcome the Department's efforts to balance
protection of alleged victims with due process protections have
expressed concerns that the Department has gone too far in loosening
schools' duty to respond. Counterproposals include, on the one hand,
expanded definitions of sexual harassment and the conditions that give
rise to a duty to respond, and, on the other, measures to ensure
schools do not circumvent key procedural protections by handling cases
of serious alleged misconduct outside of the Title IX process. While
this is beyond the scope of the issues I was asked to address, I
encourage lawmakers and the Department to consider the comments and
requests for clarification regarding the Department's proposed
definitions of sexual harassment and sexual assault (Section 106.30 of
the proposed regulations), the ``deliberate indifference'' standard
(Section 106.44(a)); and the standards for what constitutes conduct
within a school's ``education program or activity'' (Section
106.44(a)). \30\
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\30\ While I am not presenting any particular solution to these
concerns in this submission, I note suggestions made by Harvard
professors Gersen, Gertner, and Halley, https://perma.cc/3F9K-PZSB; the
ACLU, https://www.aclu.org/letter/aclu-comments-title-ix-proposed-rule;
and Concerned Lawyers and Educators, https://conradobrien.com/uploads/
attachments/cjrjac2cb0cmt01iw4vzo4aev-comments-of-concerned-lawyers-
and-educators-in-support-of-fundamental-fairness-for-all-parties-in-
title-ix-grievance-proceedings-1-28-2019.pdf.
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IV. PROCEDURAL PROTECTIONS REQUIRED FOR A FAIR AND RELIABLE PROCESS
The procedural protections I outline below are generally included
in the Department's proposed regulations, though in some instances I
propose modifications or clarifications. As I have emphasized, these
protections are consistent with basic principles of justice and with
rulings by many courts. \31\ Most of them would be freely accepted in
any other context, and many have not been the subject of specific
objections (with notable exceptions such as the live hearing, cross-
examination, standard of proof, and presumption of non-responsibility
provisions, which I address below). While commenters have raised
general concerns about the potential cost and complexity of these
provisions, they are necessary for fair proceedings and can be avoided
if schools and parties voluntarily pursue less formal resolutions. In
addition, the disproportionate negative impact of sexual misconduct
policies and proceedings on men of color has been well documented, and
makes due process and other legal rights all the more important. \32\
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\31\ Representative examples of court decisions affirming these
rights in the context of Title IX disciplinary proceedings are included
in the appendix.
\32\ See, for example, Janet Halley, Trading the Megaphone for the
Gavel in Title IX Enforcement, Harvard Law Review, https://
harvardlawreview.org/2015/02/trading-the-megaphone-for-the-gavel-in-
title-ix-enforcement-2/.
1. Schools should offer supportive measures -``non-
disciplinary, non-punitive individualized services . . .
designed to restore or preserve access to the [school's]
education program or activity''--to both parties, whether or
not a formal complaint is filed. \33\
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\33\ Proposed Section 106.30.
2. An interim suspension should be imposed only if a school
determines, after an individualized analysis, that it is
justified by an immediate threat of harm to students or
employees, and the respondent should be given notice and an
opportunity to challenge the decision immediately after the
suspension is imposed. In addition to these protections
(included in the proposed regulations), \34\ an interim
suspension should be allowed only if it is the least
restrictive alternative, and the same standards and limitations
should apply to the currently-routine practice of placing holds
on accused students' transcripts or withholding their degrees
while a disciplinary proceeding is pending. This practice can
result in severe and unwarranted punishment even if the accused
student is ultimately found not responsible.
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\34\ Proposed Section 106.44(c).
3. Schools should give both parties timely and adequate
notice of the applicable school policy or code provisions and
their rights. \35\
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\35\ The rest of these points are generally covered by proposed
Section 106.45(b). Some points, including 17-20, include suggested
modifications of the Department's proposals.
4. Schools should give respondents notice of complaints
against them, including the factual allegations on which a
complaint is based and the relevant provisions of the school's
policy or code, before any initial interview and with
sufficient time to prepare a response. Parties should also be
notified if the school decides to investigate additional or
different allegations or charges from those included in the
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initial notice.
5. Title IX coordinators, investigators, and decisionmakers
should not have conflicts of interest, bias for or against
complainants or respondents generally, or bias for or against a
particular party.
6. Decisionmaker(s) should not be the same person(s) as the
Title IX coordinator or the investigator(s).
7. Investigators, decisionmakers, and all other officials
involved in Title IX disciplinary proceedings should be trained
on the requirements of Title IX and the school's procedures.
They should be trained to conduct impartial proceedings, not to
rely on sex stereotypes, and to protect due process for all
parties. In particular, while investigators may be
appropriately trained to be sensitive in how they question
parties, they should not be trained to presume alleged conduct
occurred or to make credibility determinations based on
presumptions about complainants or respondents.
8. Schools--not parties--should be responsible for gathering
all relevant evidence, both inculpatory and exculpatory, and
for evaluating it objectively. Credibility determinations
should not be based on a person's status as a complainant,
respondent, or witness.
9. Respondents should be given a presumption of non-
responsibility. Such a presumption is a corollary to the
standard of proof: whatever standard is ultimately adopted, if
it is not satisfied the respondent should be found not
responsible. An express statement of the presumption is
necessary because college officials are commonly trained to
presume a complainant's credibility.
10. The parties should have an equal opportunity to present
witnesses and evidence and to be accompanied during the
proceedings by an advisor of their choice.
11. The parties should be given written notice of all
interviews, meetings, and hearings, with sufficient time to
prepare.
12. The parties should be given an equal and meaningful
opportunity to review, respond to, and present all evidence
gathered during the investigation, both inculpatory and
exculpatory.
13. The investigative report should fairly summarize relevant
evidence, both inculpatory and exculpatory, and the parties
should be given a meaningful opportunity to review and respond
to the report.
14. Decision-makers should issue a comprehensive written
determination based on an objective evaluation of the evidence.
The determination should identify the relevant policy or code
provision(s), describe the investigation, review the evidence,
include findings of fact and conclusions as to how the code
provisions apply to the facts, state the decision as to each
allegation and the rationale for the decision, describe any
sanction and the rationale for the sanction, and describe any
support measures or remedies provided to the complainant.
15. The parties should receive timely written notice of their
appeal rights, and an independent decisionmaker for the appeal.
16. Institutions of higher education should provide a live
hearing and allow the parties' advisors to question the other
party and witnesses. These provisions in the proposed
regulations have provoked particular opposition. However, they
are consistent with longstanding legal precedent and critical
to a fair determination, ensuring that the parties can test,
and decisionmakers can assess, the credibility and reliability
of the parties and witnesses. The practice currently used at
many schools, where parties can submit written questions,
school officials decide what questions to ask, and
decisionmakers may never even see the parties in person, is not
an adequate substitute. Questioning should take place in real
time, in the presence of both the parties and the
decisionmakers. The written question process is artificially
constrained and does not allow the questioner to flow with the
testimony or effectively address new points as they come up.
While some have expressed concerns that the prospect of live
questioning will deter reporting of sexual misconduct, I have
not seen evidence that this is true, and I note that
respondents too will be subject to questioning and may decide
to accept sanctions rather than undergo that process.
Regardless, as I have said, I firmly believe complainants
should be supported and taken seriously, but the goal of a
particular disciplinary proceeding should be to determine
whether the allegations in that case are true. Any assumption
that a particular complainant is a victim of sexual misconduct
and should not be questioned or effectively tested is not
consistent with basic fairness. Schools can, should, and do
adopt measures to ensure respectful treatment of parties and
witnesses and prevent irrelevant, unfair, or badgering
questions, and can also take steps to keep the parties
separated.
17. If a Title IX proceeding continues while a criminal
investigation is pending, a respondent's right to avoid self-
incrimination must be protected and no adverse inference should
be drawn if the respondent limits his participation or
testimony.
18. Consistent with Federal Rule of Evidence 412, evidence of
prior sexual history should be allowed if it is offered to
prove that someone else committed the alleged conduct; if it
concerns specific incidents of the parties' sexual conduct and
is offered to prove consent, non-consent, welcomeness, or
unwelcomeness; and if the ``probative value [of the evidence]
substantially outweighs the danger of harm to any victim and of
unfair prejudice to any party.'' \36\
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\36\ Rule 412(b)(2). The proposed regulations include the first
two conditions; I propose the third based on established rules of
evidence and further propose that limits to inquiry into prior sexual
history should apply to both parties.
19. A uniform ``clear and convincing evidence'' standard of
evidence should apply. Sexual misconduct charges carry the
potential for life-long consequences, including permanent
transcript notations that will forever impair a respondent's
educational and career prospects. As courts have acknowledged,
the preponderance of the evidence standard is not sufficient to
protect against unreliable determinations. \37\ The clear and
convincing standard is essential to ensure that schools reach
just results, not simply adopt fairer procedures on paper.
Otherwise the risk is high that school officials, long steeped
in a pro-``victim,'' anti-``perpetrator'' approach, will
continue to bow to widespread pressure to resolve grievances
against respondents, and thus perpetuate the gender bias that
pervades Title IX disciplinary processes now.
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\37\ See, e.g., Lee v. Univ. of New Mexico, No. 1:17-cv-01230-JB-
LF (D.N.M. Sept. 20, 2018); Doe v. Univ. of Mississippi, No. 3:16-CV-
63-DPJ-FKB, 2018 WL 3570229, *11 (S.D. Miss. July 24, 2018) (allowing
student to pursue claims against university based in part on use of
preponderance standard to resolve sexual assault complaint). The
proposed regulations would generally allow schools to choose whether to
apply a preponderance or clear and convincing standard.
20. Regarding the Department's proposal that schools be
required to dismiss a complaint that does not satisfy the
standards in the regulations, some commenters have taken the
position that the Department's provisions for formal Title IX
grievance proceedings should establish a floor, not a ceiling,
and that schools should remain free to respond to complaints of
conduct that does not fall within the Department's definition
of sexual harassment, that violates a school's own policies,
etc. I believe this concept is built into the proposed
regulations. If a school decides to provide recourse or support
for other conduct, however, it should make supportive measures
available to both parties, and any proceeding that could result
in a respondent's being deprived of access to a school's
educational programs or activities should provide the
procedural protections set forth above. \38\
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\38\ I am also concerned about students who have been found
responsible under current processes that did not provide the basic
protections necessary to ensure a fair result, and believe
consideration should be given to offering them recourse. At the very
least, a process should be available for persons found responsible to
have their records expunged after a designated period, and there should
be a time frame after which respondents are no longer required to
report an adverse disciplinary ruling on an application for admission
to another school.
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V. CONCLUSION
While the erosion of due process protections in campus disciplinary
proceedings has so far primarily impacted men, it is leading to
injustice and insecurity for everyone. This is starkly illustrated by
several recent cases in which women have been the accused or have
argued that others should receive a fair process. In one reported case,
two students had a sexual encounter while under the influence of
alcohol. The woman was found responsible for sexual assault and was
given a suspension to last as long as the man attended the school. She
filed suit and asked the Court to enjoin the sanction, arguing that she
was not given due process and that the school should have considered
whether she was a victim herself, since both parties had been drinking.
She lost her motion and then withdrew her lawsuit. \39\ When a well-
known feminist scholar was accused of sexually harassing a graduate
student, other academics rallied around her, asked that she receive ``a
fair hearing,'' and stated their ``objection to any judgment against
her.'' \40\ And the female CEO of an organization that grew out of the
#MeToo movement stepped down after her son was accused of sexual
misconduct, stating her intention to stand by him; the organization
issued a statement reiterating its unequivocal support for survivors.
\41\
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\39\ Jane Roe v. U. of Cincinnati, No. 1:18-cv-312 (S.D. Ohio Aug.
21, 2018), https://kcjohnson.files.wordpress.com/2018/08/roe-v-
cincinnati-pi-denial.pdf.
\40\ As reported by Nell Gluckman, How a Letter Defending Avital
Ronell Sparked Confusion and Condemnation, Chronicle of Higher
Education (June 12, 2018), https://www.chronicle.com/article/How-a-
Letter-Defending-Avital/243650.
\41\ David French, The Great Due-Process Revival (Feb. 25, 2019),
https://www.nationalreview.com/corner/due-process-protections-metoo-
movement/.
I believe both complainants and respondents have a right to be
heard. Neither has a right to be automatically believed. If we want
fair processes for ourselves and our loved ones, we must support fair
processes across the board, and not abandon our basic principles of
justice because of the nature of the accused conduct or the
unpopularity of the accused.
APPENDIX
The following is an excerpt from an article by the Foundation for
Individual Rights in Education, Mountain of evidence shows the
Department of Education's prior approach to campus sexual assault was
``widely criticized'' and ``failing'' (Nov. 15, 2018),https://
www.thefire.org/mountain-of-evidence-shows-the-department-of-
educations-prior-approach-to-campus-sexual-assault-was-widely-
criticized-and-failing/ (pages 17-19); additional information about the
facts and holdings in some of those cases (pages 20-22); and a
representative sampling of cases decided since the article was
published (pages 22-23).
Excerpt from FIRE article:
[S]ince 2011, approximately 117 federal courts, as well as a
number of state courts, have raised concerns about the lack of
meaningful procedural protections in campus adjudications. A
number of those judges have put their concerns in particularly
clear terms:
Doe v. Regents of the University of California, No. B283229
(Cal. Ct. App. Oct. 9, 2018) (``It is ironic that an
institution of higher learning, where American history and
government are taught, should stray so far from the principles
that underlie our democracy.'').
Lee v. University of New Mexico, No. 17-cv-01230 (D.N.M.
Sept. 20, 2018) (``[P]reponderance of the evidence is not the
proper standard for disciplinary investigations such as the one
that led to Lee's expulsion, given the significant consequences
of having a permanent notation such as the one UNM placed on
Lee's transcript.'').
Doe v. Baum, 903 F.3d 575 (6th Cir. 2018) (``[I]f a public
university has to choose between competing narratives to
resolve a case, the university must give the accused student or
his agent an opportunity to cross-examine the accuser and
adverse witnesses in the presence of a neutral fact-finder.'').
Doe v. University of Michigan, 325 F. Supp. 3d 821 (E.D.
Mich. 2018) (``Without a live proceeding, the risk of an
erroneous deprivation of Plaintiff's interest in his
reputation, education, and employment is significant.'').
Doe v. Trustees of Boston College, 892 F.3d 67 (1st Cir.
2018) (holding that it is ``reasonable for a student to expect
that a basic fairness guarantee excludes having an associate
Dean of Students request Board members to give special
treatment to the prime alternative culprit in a case in which
the key defense is that someone other than the accused student
committed the alleged sexual assault'').
Doe v. Marymount University, 297 F. Supp. 3d 573 (E.D. Va.
2018) (``[C]olleges and universities should treat sexual
assault investigations and adjudications with a degree of
caution commensurate with the serious consequences that
accompany an adjudication of guilt in a sexual assault case. If
colleges and university do not treat sexual assault
investigations and adjudications with the seriousness they
deserve, the institutions may well run afoul of Title IX.'').
Doe v. University of Notre Dame, 2017 U.S. Dist.
LEXIS 69645 (N.D. Ind. May 8, 2017) (in response to
university's argument that lawyers were not required because
its disciplinary process was educational, not punitive, judge
wrote: ``This testimony is not credible. Being thrown out of
school, not being permitted to graduate and forfeiting a
semester's worth of tuition is `punishment' in any reasonable
sense of that term.'').
Doe v. Brandeis University, 177 F. Supp. 3d 561 (D.
Mass. 2016) (``Brandeis appears to have substantially impaired,
if not eliminated, an accused student's right to a fair and
impartial process. . . . If a college student is to be marked
for life as a sexual predator, it is reasonable to require that
he be provided a fair opportunity to defend himself and an
impartial arbiter to make that decision.'').
Doe v. Columbia University, 831 F.3d 46 (2d Cir.
2016) (``A covered university that adopts, even temporarily, a
policy of bias favoring one sex over the other in a
disciplinary dispute, doing so in order to avoid liability or
bad publicity, has practiced sex discrimination . . . .'').
See also Doe v. Miami Univ., 882 F.3d 579 (6th Cir.
2018); Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir.
2017); Doe v. Columbia Univ., 831 F.3d 46 (2d Cir. 2016);
Rossley v. Drake Univ., No. 4:16-cv-00623 (S.D. Iowa Oct. 12,
2018); Doe v. Univ. of So. Miss., No. 2:18-cv-00153 (S.D. Miss.
Sept. 26, 2018); Doe v. Syracuse Univ., 2018 U.S. Dist. LEXIS
157586 (N.D.N.Y. Sept. 16, 2018); Doe v. Brown Univ., 2018 U.S.
Dist. LEXIS 144967 (D.R.I. Aug. 27, 2018); Doe v. Pa. St.
Univ., 2018 U.S. Dist. LEXIS 141423 (M.D. Pa. Aug. 21, 2018);
Doe v. Geo. Wash. Univ., 2018 U.S. Dist. LEXIS 136882 (D.D.C.
Aug. 14, 2018); Rowles v. Curators of the Univ. of Miss., No.
2:17-cv-04250 (W.D. Mo. July 16, 2018); Doe v. Univ. of Miss.,
2018 U.S. Dist. LEXIS 123181 (S.D. Miss. July 14, 2018); Doe v.
Johnson & Wales Univ., No. 1:18-cv-00106 (D.R.I. May 14, 2018);
Doe v. DiStefano, 2018 U.S. Dist. LEXIS 76268 (D. Colo. May 7,
2018); Werner v. Albright Coll., No. 5:17-cv-05402 (E.D. Pa.
May 2, 2018); Doe v. Ohio St. Univ., 2018 U.S. Dist. LEXIS
68364 (S.D. Ohio Apr. 24, 2018); Roe v. Adams-Gaston, No. 2:17-
cv-00945 (S.D. Ohio Apr. 17, 2018); Elmore v. Bellarmine Univ.,
2018 U.S. Dist. LEXIS 52564 (W.D. Ky. Mar. 29, 2018); Doe v.
Univ. of Or., 2018 U.S. Dist. LEXIS 49431 (D. Or. Mar. 26,
2018); Doe v. Marymount Univ., 297 F. Supp. 3d 573 (E.D. Va.
2018); Schaumleffel v. Muskingum Univ., 2018 U.S. Dist. LEXIS
36350 (S.D. Ohio Mar. 6, 2018); Gischel v. Univ. of Cincinnati,
302 F. Supp. 3d 961 (S.D. Ohio 2018); Powell v. St. Joseph's
Univ., 2018 U.S. Dist. LEXIS 27145 (E.D. Pa. February 16,
2018); Doe v. Rider Univ., 2018 U.S. Dist. LEXIS 7592 (D.N.J.
Jan. 17, 2018); Doe v. Pa. St. Univ., 2018 U.S. Dist. LEXIS
3184 (M.D. Pa. Jan. 8, 2018); Saravanan v. Drexel Univ., 2017
U.S. Dist. LEXIS 193925 (E.D. Pa. Nov. 24, 2017); Painter v.
Adams, 2017 U.S. Dist. LEXIS 171565 (W.D.N.C. Oct. 17, 2017);
Doe v. Univ. of Chicago, 2017 U.S. Dist. LEXIS 153355 (N.D.
Ill. Sept. 20, 2017); Rolph v. Hobart & William Smith Colls.,
271 F. Supp. 3d 386 (W.D.N.Y. Sept. 20, 2017); Doe v. Case
Western Reserve Univ., 2017 U.S. Dist. LEXIS 142002 (N.D. Ohio
Sept. 1, 2017); Doe v. Trs. of the Univ. of Pa., 270 F. Supp.
3d 799, 817 (E.D. Pa. 2017); Gulyas v. Appalachian St. Univ.,
2017 U.S. Dist. LEXIS 137868 (W.D.N.C. Aug. 28, 2017); Nokes v.
Miami Univ., 2017 U.S. Dist. LEXIS 136880 (S.D. Ohio Aug. 25,
2017); Mancini v. Rollins Coll., 2017 U.S. Dist. LEXIS 113160
(M.D. Fl. July 20, 2017); Tsuruta v. Augustana Univ., No. 4:15-
cv-04150 (D.S.D. June 16, 2017); Doe v. Univ. of Notre Dame,
2017 U.S. Dist. LEXIS 69645 (N.D. Ind. May 8, 2017); Doe v.
Williams Coll., No. 3:16-cv-30184 (D. Mass. Apr. 28, 2017); Doe
v. Amherst Coll., 238 F. Supp. 3d 195 (D. Mass. 2017); Doe v.
Ohio St. Univ., 239 F. Supp. 3d 1048 (S.D. Ohio 2017); Neal v.
Colo. St. Univ.--Pueblo, 2017 U.S. Dist. LEXIS 22196 (D. Colo.
Feb. 16, 2017); Doe v. Lynn Univ., 2017 U.S. Dist. LEXIS 7528
(S.D. Fl. Jan. 19, 2017); Doe v. W. New England Univ., 228 F.
Supp. 3d 154 (D. Mass. 2017); Doe v. Alger, 228 F. Supp. 3d 713
(W.D. Va. 2016); Collick v. William Paterson Univ., 2016 U.S.
Dist. LEXIS 160359 (D.N.J. Nov. 17, 2016); Doe v. Brown Univ.,
210 F. Supp. 3d 310 (D.R.I. Sept. 28, 2016); Ritter v. Okla.
City Univ., 2016 U.S. Dist. LEXIS 95813 (W.D. Okla. July 22,
2016); Doe v. Weill Cornell Med. Coll. of Cornell Univ., No.
1:16-cv-03531 (S.D.N.Y. May 20, 2016); Doe v. Bd. of Regents of
the Univ. Sys. Of Ga., No. 15-cv-04079 (N.D. Ga. April 19,
2016); Doe v. George Mason Univ., No. 1:15-cv-00209 (E.D. Va.
Feb. 25, 2016); Prasad v. Cornell Univ., 2016 U.S. Dist. LEXIS
161297 (N.D.N.Y. Feb. 24, 2016); Doe v. Brandeis Univ., 177 F.
Supp. 3d 561 (D. Mass. 2016); Doe v. Brown Univ., 166 F. Supp.
3d 177 (D.R.I. 2016); Marshall v. Indiana Univ., 170 F. Supp.
3d 1201 (S.D. Ind. 2016); Doe v. Pa. St. Univ., No. 4:15-cv-
02072 (M.D. Pa. Oct. 28, 2015); Sterrett v. Cowan, 2015 U.S.
Dist. LEXIS 181951 (E.D. Mich. Sept. 30, 2015); Doe v.
Middlebury Coll., 2015 U.S. Dist. LEXIS 124540 (D. Vt. Sept.
16, 2015); Doe v. Salisbury Univ., 123 F. Supp. 3d 748 (D. Md.
August 21, 2015); Doe v. Washington and Lee Univ., 2015 U.S.
Dist. LEXIS 102426 (W.D. Va. Aug. 5, 2015); Tanyi v.
Appalachian St. Univ., 2015 U.S. Dist. LEXIS 95577 (W.D.N.C.
July 22, 2015); Doe v. Salisbury Univ., 107 F. Supp. 3d 481 (D.
Md. 2015); King v. DePauw Univ., 2014 U.S. Dist. LEXIS 117075
(S.D. Ind. August 22, 2014); Benning v. Corp. of Marlboro
Coll., 2014 U.S. Dist. LEXIS 107013 (D. Vt. Aug. 5, 2014);
Harris v. St. Joseph's Univ., 2014 U.S. Dist. LEXIS 65452 (E.D.
Pa. May 13, 2014); Wells v. Xavier Univ., 7 F. Supp. 3d 746
(S.D. Ohio 2014); Doe v. Geo. Wash. Univ., No. 1:11-cv-00696
(April 8, 2011).
Additional details from a sampling of these cases, affirming the
principles that schools are obligated to follow their own procedures;
clearly notify respondents of the charges against them and the factual
basis for those charges; conduct a thorough and fair investigation;
give respondents a meaningful opportunity to defend themselves (with
access to relevant materials and the ability to confront their
accusers); ensure decisionmakers and investigators are impartial;
meaningfully consider both exculpatory and inculpatory evidence; and
give fair and consistent treatment both to complainants (usually
female) and respondents (usually male):
Doe v. Baum, 903 F.3d 575 (6th Cir. Sept. 7, 2018):
allowed a male student to proceed with due process and Title IX
claims because credibility was at issue and plaintiff was not
given a hearing or ``an opportunity to cross-examine the
accuser and adverse witnesses in the presence of a neutral
fact-finder;'' also held plaintiff had plausibly alleged that
university officials ``discredited all males, including Doe,
and credited all females, including Roe, because of gender
bias.''
Doe v. Miami University, 882 F.3d 579 (6th Cir.
2018): allowed a male student to proceed with claims that the
university did not adequately consider inconsistencies in a
complainant's statement, did not apply its own definition of
consent, and treated the parties differently, failing to take
seriously the male student's allegations that the female
student engaged in non-consensual conduct.
Collick v. William Paterson University, 699 Fed.
Appx. 129 (3d Cir. Oct. 26, 2017): allowed a male student to
proceed with claims against an individual college official who
conducted a cursory investigation.
Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir.
Sept. 25, 2017): enjoined university from suspending a male
student, because complainant did not appear at hearing, issues
turned on credibility, and plaintiff had no opportunity to
confront her.
Lee v. University of New Mexico, No. 17-1230, Order
(D.N.M. Sept. 20, 2018): allowed a male student to proceed with
due process claims based on allegations that the disciplinary
proceeding turned on a problem of credibility ``such that a
formal or evidentiary hearing, to include the cross-examination
of witnesses and presentation of evidence in his defense, is
essential to basic fairness;'' ``preponderance of the evidence
is not the proper standard for disciplinary investigations such
as the one that led to Lee's expulsion, given the significant
consequences of having a permanent notation such as the one UNM
placed on Lee's transcript;'' and plaintiff did not receive
notice of certain charges until his sanctions hearing, when it
was too late to prepare an adequate defense.
Doe v. Syracuse University, 341 F. Supp. 3d 125
(N.D.N.Y. Sept. 16, 2018): allowed a male student to proceed
with Title IX claims based on allegations that the university
had concluded both students were highly intoxicated but applied
a presumption of inability to knowingly consent to sexual
intercourse only to the female and had not adequately
investigated or questioned the female's credibility.
Doe v. Brown Univ., 327 F. Supp. 3d 397 (D.R.I. Aug.
27, 2018): allowed African American male student to proceed
with certain Title IX, race discrimination, and contract
claims, based on allegations that the university pursued
charges against the male but not the female, notwithstanding
evidence that she was the aggressor and had committed other
violations of university policy.
Doe v. Distefano, No. 16-CV-1789-WJM-KLM, 2018 WL
2096347 (D. Colo. May 7, 2018): allowed a male student to
proceed with due process claims based on alleged procedural
flaws that included delays in giving plaintiff notice and
access to information and failure to provide impartial
investigators and decisionmakers, and using allegations of
procedural violations to support an inference of bias, saying
that for due process purposes any actual bias is unacceptable.
Doe v. University of Oregon, No. 6:17-CV-01103-AA,
2018 WL 1474531 (D. Or. Mar. 26, 2018): allowed a male student
to proceed with claims including allegations that a university
decisionmaker explained away inconsistencies in complainant's
account and problems with her evidence, ignored evidence
favoring him, did not give him advance copies of evidence, and
allowed the complainant to introduce new evidence at the
hearing without allowing him to respond.
Doe v. Marymount University, 297 F. Supp. 3d 573
(E.D. Va. Mar. 14, 2018): allowed a male student to proceed
with claims including allegations that the university did not
allow him to interview potential witnesses or gather
exculpatory evidence, and did not investigate or consider
evidence that contradicted complainant's account, including her
inconsistent statements.
Schaumleffel v. Muskingum University, 2018 WL 1173043
(S.D. Ohio Mar. 6, 2018): allowed a male student to proceed
with claims including allegations that the university did not
consider exculpatory evidence and helped persuade female
students to file complaints against him.
Gischel v. University of Cincinnati, 302 F. Supp. 3d
961 (S.D. Ohio Feb. 5, 2018): allowed a male student to proceed
with claims that the university's investigator was biased
against him, that the university did not consider evidence that
contradicted the complainant's account, and that the university
denied cross-examination by refusing to ask the complainant
questions posed by the respondent.
Doe v. Rider University, No. 3:16-CV-4882-BRM-DEA,
2018 WL 466225 (D.N.J. Jan. 17, 2018): allowed a male student
to proceed with claims including allegations that the
investigator ignored complainant's inconsistent statements and
the hearings panel answered to an official who had prejudged
the male student as guilty.
Doe v. Pennsylvania State University, No. 4:17-CV-
01315, 2018 WL 317934 (M.D. Pa. Jan. 8, 2018): allowed a male
student to proceed with claims including allegations that the
university did not give him adequate notice of the charges
against him and failed to cite adequate evidence to support the
decision of responsibility.
Saravanan v. Drexel University, No. 17-3409, 2017 WL
5659821 (E.D. Pa. Nov. 24, 2017): confirmed universities in
disciplinary proceedings ``must strive to ensure fairness
including avoiding inherent bias or procedures which may favor
a woman's claim of sexual harassment and stalking over a man's
claim of sexual assault by the woman.''
Painter v. Adams, No. 315CV00369MOCDCK, 2017 WL
4678231 (W.D.N.C. Oct. 17, 2017): allowed male student to
proceed with claims including allegations that the university
refused to consider exculpatory evidence.
Rolph v. Hobart and William Smith Colleges, 271 F.
Supp. 3d 386 (W.D.N.Y. Sept. 20, 2017): allowed a male student
to proceed with claims including allegations that the
university conducted an inadequate investigation, failed to
review or preserve evidence, failed to address inconsistencies,
helped the complainant prepare her case, and did not treat the
parties equally during the hearing.
Doe v. The Trustees of the University of
Pennsylvania, 270 F. Supp. 3d 799 (E.D. Pa. Sept. 13, 2017):
allowed a male student to proceed with claims including
allegations that the university failed to conduct a thorough
investigation and trained investigators and members of the
Hearing Panel to presume that complainants were telling the
truth and accused students were responsible.
Sampling of new cases decided since November 2018:
Noakes v. Syracuse University, No. 5:18-CV-43, 2019
WL 936875 (N.D.N.Y. Feb. 26, 2019): denied university's motion
to dismiss Title IX claims by male African American student who
was expelled for alleged sexual assault of a female student and
claimed mistaken identity; the complainant did not testify at
the hearing, plaintiff was not allowed to cross-examine her or
key witnesses, and plaintiff alleged flaws in the
investigation, pro-complainant assumptions, and unwillingness
to consider evidence of plaintiff's innocence or question
complainant's credibility, coupled with facts to show public
and university-specific pressure to believe accusers and
presume accused students responsible.
Norris v. Univ. of Colorado, No. 1:18-CV-02243-LTB,
2019 WL 764568 (D. Colo. Feb. 21, 2019): denied university's
motion to dismiss Title IX and due process claims brought by a
male student who was suspended for 18 months for alleged sexual
misconduct with a female student; plaintiff, among other
things, alleged the university applied the wrong version of its
code, withheld notice of its investigation until after
plaintiff was interviewed by police, denied him a hearing and
the right to cross-examine his accuser and other witnesses,
unreasonably denied him access to the investigation file, made
inconsistent findings, used a ``trauma-informed'' approach that
presumed the truth of complainant's allegations, and assigned
officials with conflicts of interest to investigate and decide
the case. Court cited other cases finding that ``a lack of
meaningful cross-examination may contribute to a violation of
due process rights of an accused student in a disciplinary
hearing regarding sexual assault.''
Oliver v. University of Texas Southwestern Medical
School, No. 3:18-CV-1549-B, 2019 WL 536376 (N.D. Tex. Feb. 11,
2019): denied motion to dismiss Title IX and due process claims
filed by a male medical student who was expelled based on an
alleged physical assault of his former fiance; plaintiff
alleged the university had first found the complaint against
plaintiff to be unfounded but then reopened it based on ``new
evidence'' which it did not share with plaintiff; held a
hearing without requiring complainant to testify and without
allowing cross-examination; and disregarded proof that
complainant had doctored the audio recording which comprised
the ``new evidence.''
Doe v. White, BS171704 (Cal. Super. Ct. Feb. 7,
2019), https://kcjohnson.files.wordpress.com/2019/02/doe-v-
white-csu-northridge.pdf: latest of several recent cases in
which California state courts have directed both public and
private universities to set aside decisions finding male
students responsible for sexual misconduct, and have held that
when a disciplinary decision turns on credibility, parties and
witnesses must be subjected to questioning and cross-
examination at a live hearing before a neutral adjudicator who
cannot be the same person as the investigator.
Doe v. Univ. of Mississippi, No. 3:18-CV-138-DPJ-FKB,
2019 WL 238098 (S.D. Miss. Jan. 16, 2019): denied motion to
dismiss Title IX, due process, and equal protection claims
filed by male student suspended for three years for alleged
sexual assault of female student; plaintiff alleged that the
investigator excluded exculpatory evidence, failed to interview
key witnesses, and failed to address medical records that made
clear complainant did not think she was raped, that a panel
member mocked defenses raised by men accused of sexual assault,
that defendants treated plaintiff less favorably than
complainant for the same conduct (sexual activity with someone
under the influence of alcohol), that the investigative report
was flawed and incomplete, that decision makers were trained to
assume an assault occurred, that plaintiff was not allowed to
cross-examine complainant or witnesses because they did not
appear at the hearing, and that the preponderance standard was
not sufficient to protect plaintiff's rights.
Doe v. Coastal Carolina University, 2019 WL 142299
(D.S.C. Jan. 9, 2019): denied motion to dismiss Title IX claims
filed by male student expelled for alleged sexual assault of
female student; plaintiff was criminally investigated but no
charges were filed against him, a panel conducted a hearing and
found in plaintiff's favor, the female student appealed without
following the school's procedures, the appellate officer
requested a new hearing, and an ``appeal panel'' convened for a
second ``hearing,'' without any testimony, and found plaintiff
responsible.
Doe v. George Washington Univ., No. CV 18-553 (RMC),
2018 WL 6700596 (D.D.C. Dec. 20, 2018): denied motion to
dismiss breach of contract and Title IX claims by male student
suspended for one year (after finishing all his course work)
for alleged sexual assault of female student; Court noted among
other things that ``[t]he Appeals Panel was presented with
direct contradictions in the evidence and appears to have
strained to overlook such contradictions, leaving no trail of
reasoning.''
______
The Chairman. Thank you, Ms. Hamill.
Ms. Goss Graves, welcome.
STATEMENT OF FATIMA GOSS GRAVES, PRESIDENT AND CEO, NATIONAL
WOMEN'S LAW CENTER, WASHINGTON, DC
Ms. Goss Graves. Thank you. Chairman Alexander, Ranking
Member Murray, and Members of the Committee, I am Fatima Goss
Graves, President and CEO of the National Women's Law Center
and I appreciate the opportunity to testify today.
The National Women's Law Center was founded the same year
that Title IX was passed, and we have worked to address sex
discrimination in schools, including harassment since that
time. And I have personally been engaged in this topic,
representing clients, serving on the Clery rulemaking round
tables, and on the ALI project on this topic. Study after study
has shown that students in college continue to experience
extremely high rates of sexual assault. More than 1 in 5 women,
more than 1 in 18 men, and nearly 1 in 4 transgender and gender
non-conforming students.
The students we hear from at the National Women's Law
Center report that they were discouraged from reporting in the
first place, that they have been met with delays, that the
process that they have experienced was extremely unfair. Trauma
they experience both from their assault and from going through
their school process stays with them far after they leave their
universities. For some, what is at stake is whether they
continue to stay in school at all.
Any reauthorization of The Higher Education Act should
really take all of this into account, including also the
principles of the Clery Act and Title IX that the Senator
outlined earlier, and the existing requirements to adopt and
enforce procedures to address sexual assault that include
promptness, being equitable, and being impartial.
Unfortunately, recently the Department of Education's proposed
changes to its Title IX rules have created a lot of confusion.
Schools have been forced--if the rules were to go into effect,
schools would be forced to ignore a lot of sexual assaults.
They would be required to have unfair and sometimes harmful
processes that we believe would deter survivors from coming
forward in the first place. And the response to these proposed
rules has been swift with thousands of people around this
country urging the Department to abandon this misguided plan.
Many reminded the Department of Education of the guiding
principle rules that are already embedded in Title IX and
Clery. I do not have time to go through all of them, but I want
to highlight a few. First, we really believe that fair
processes require all parties to have timely and clear notice
in advance of meetings and hearings. We have heard of schools
failing to do this to the detriment of all students.
In addition, it requires effective interim measures that
preserve complainants' equal access to education. This may be
as simple as changing a dorm or classroom. It also requires
resolving sexual assault complaints with the same evidentiary
standard used in other civil rights proceedings, which is the
preponderance of evidence standards, and school should not
subject sexual violence to hire and unique standards. That is a
thing that you will hear from me. In addition, campus processes
should treat all students involved equitably. This means that
both respondents and complainants should have the same rights
to have witnesses, and the same rights to have evidence, and
the same rights to appeal. It would be unfair to allow only one
side to appeal a process that is decidedly unfair.
Finally, want to take a minute to address the issue of
cross-examination that the Senator raised. Some have argued,
including the Department of Education in its unfortunate
proposed rule, that cross-examination is required to ensure
that a process is fair. Here is where I strongly disagree.
These are not courtrooms. In these proceedings students
typically do not have counsel. They do not have rules of
evidence that apply. There isn't trial procedures. There aren't
meaningful protections from inappropriate or unfair or victim-
blaming questions, and most fundamentally, any rule that
requires colleges and universities to conduct live quasi-
criminal type trials with live cross-examination only in the
area of sexual violence and not in any other misconduct at
schools, communicates the message that survivors are uniquely
unreliable. And implicit in such a requirement is a deep rooted
skepticism of sexual assault itself. It is already an issue
that is dramatically underreported. This will only be
exacerbated if students who report must undergo traumatic and
unnecessary procedures.
It should not surprise anyone that student survivors care
deeply about the fairness in their school systems. They have as
much interest in the outcome of a complaint as students who are
responding to allegations. Each are harmed when schools
implement processes that are unfair. This is especially true
for survivors who are experiencing multiple forms of
discrimination. We hear from black and brown women in
particular that they are less likely to be believed in these
processes and they are especially vulnerable to unfair
processes.
In my view it is just really time to match the seriousness
of survivors who are out there demanding accountability from
their schools.
Thank you for the opportunity to be here today, and I look
forward to any questions.
[The prepared statement of Ms. Goss Graves follows:]
prepared statement of fatima goss graves
Thank you for the opportunity to submit testimony to the Committee
on addressing campus sexual assault and fair campus disciplinary
processes in the reauthorization of the Higher Education Act.
I. INTRODUCTION
The National Women's Law Center (``the Center'') is a nonprofit
organization that has worked since 1972 to combat sex discrimination
and expand opportunities for women and girls in every facet of their
lives, including education. Founded the same year Title IX of the
Education Amendments of 1972 was enacted, the Center has participated
in all major Title IX cases before the Supreme Court as counsel \1\ or
amici. The Center is committed to eradicating all forms of sex
discrimination in school, specifically including discrimination against
pregnant and parenting students, LGBTQ students, and students who are
vulnerable to multiple forms of discrimination, such as girls of color
and girls with disabilities. This work includes a deep commitment to
eradicating sexual harassment, including sexual assault, as a barrier
to educational success. We equip students with the tools to advocate
for their own rights at school, assist policymakers in strengthening
protections against sexual harassment and other forms of sex
discrimination, and litigate on behalf of students whose schools fail
to adequately address their reports of sexual harassment.
\1\ E.g., Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005);
Davis v. Monroe Cnty Bd. of Educ., 526 U.S. 629 (1999).
---------------------------------------------------------------------------
As attorneys representing those who have been harmed by sexual
violence and other forms of sexual harassment, we know that too often
when students seek help from their schools to address the harassment or
assault, they experience retaliation, including being pushed out of
school altogether. We also know how important it is for schools to
intervene when students are sexually harassed, before it escalates in
severity or to the point where students no longer feel safe in school.
II. THE REALITY OF CAMPUS SEXUAL ASSAULT
While we have made major strides to address campus sexual assault,
too many colleges and universities still fail to make even efforts to
support survivors' opportunities to learn in the wake of sexual
violence. Students are still urged to leave school until their
assailants graduated, \2\ discouraged from filing formal disciplinary
reports or telling friends, \3\ and denied essential accommodations
like dorm changes to allow them to live separately from their
assailants. \4\ Survivors sometimes still face severe retaliation,
including disciplinary complaints, for speaking out about the abuse
they faced. \5\ Some schools imposed unique procedural burdens on
student victims \6\ of sexual harassment seeking disciplinary remedies,
such as corroboration requirements and short windows to report--
approaches that are steeped in long rejected myths that women
frequently lie about rape. \7\
\2\ Dana Bolger, Where Rape Gets a Pass, N.Y. DAILY NEWS (July 6,
2014), http://www.nydailynews.com/opinion/rape-pass-article-1.1854420
(``In 2011, my sophomore year of college, I was raped and then stalked
by a fellow student. When I went to report my assault to my college
dean, he encouraged me to take time off, go home, be ``safe,'' focus on
my own healing, and put my education on hold - so that the man who
raped me could comfortably conclude his.'').
\3\ Anonymous, On Assault Narratives, Yale Daily News (Feb. 1,
2010), http://yaledailynews.com/blog/2012/02/01/anonymous-on-assault-
narratives/.
\4\ Angie Epifano, An Account of Sexual Assault at Amherst
College, Amherst Student (Oct. 17, 2012), http://
amherststudent.amherst.edu/?q=article/2012/10/17/account-sexual-
assault-amherst-college.
\5\ Annie-Rose Strasser, University of North Carolina rape victim
may be expelled for speaking about her case, ThinkProgress (Feb. 23,
2013), https://thinkprogress.org/university-of-north-carolina-rape-
victim-may-be-expelled-for-speaking-about-her-case-2d6e6b0eb24e.
\6\ We use the terms ``victim'' and ``survivor'' interchangeably
to acknowledge students' range of responses to violence. For critiques
of the limiting function of either term, see Dana Bolger, ``Hurry Up
and Heal'': Pain, Productivity, and the Inadequacy of ``Victim vs.
Survivor'', Feministing.com (Dec. 10, 2014), http://feministing.com/
2014/12/10/hurry-up-and-heal-pain-productivity-and-the-inadequacyof-
victim-vs-survivor/; Parul Sehgal, The Forced Heroism of the
`Survivor', N.Y. Times Mag., May 3, 2016, http://www.nytimes.com/2016/
05/08/magazine/the-forced-heroism-of-thesurvivor.html?--r=0.
\7\ See generally Michelle J. Anderson, The Legacy of the Prompt
Complaint Requirement, Corroboration Requirement, and Cautionary
Instructions on Campus Sexual Assault, 84 B.U. L. Rev. 945 (2004)
(describing onerous university requirements for rape victims not
imposed on students reporting other forms of harm).
---------------------------------------------------------------------------
As a result of injustices like these, we routinely hear from
students, most of them women, \8\ who drop out of school, change
majors, miss class, or otherwise lose crucial educational opportunities
as a result of experiencing sexual violence. \9\ As one lawyer who
represents victims explained:
\8\ Nick Anderson and Susan Svrluga, What a massive sexual assault
survey found at 27 top universities, The Washington Post (Sept. 21,
2015), https://www.washingtonpost.com/news/grade-point/wp/2015/09/21/
what-a-massive-sexual-assault-survey-showed-about-27-top-u-s-
universities/?utm--term=.07c97b1f0c90.
\9\ Rebecca Marie Loya, Economic Consequences of Sexual Violence
for Survivors: Implications for Social Policy and Social Change 96-100
(June 2012) (unpublished Ph.D. dissertation, Brandeis University),
https://static1.squarespace.com/static/551e0348e4b0c1bae0983f61/t/
55b19581e4b01705b03e0b1c/1437701505305/
Loya2012EconomicConsequencesRape.pdf.
---------------------------------------------------------------------------
Probably--95 percent of the time, students will skip class for one
reason or another. And . . . the reasons are because the perp's in the
class, because the perp's friends are in the class, because, sometimes
schoolwork just gets to be too much, again in the aftermath of the
assault. Sometimes, they've come out to the professor as a survivor,
and the professor hasn't . . . been particularly supportive, so they
won't go back to the class. . . . I think victims will oftentimes
think, ``So I would rather miss class for the next 3 weeks and then
just take my final, than go to class where I know he's going to be
there.'' \10\
\10\ Id. at 96. See also id. at 94 (``For a lot of the students
that I've seen, the biggest problem is that the perpetrator . . . goes
to their school as well, and in a lot of cases, even has classes with
them. So in that sense, being able to concentrate in class when the
person who assaulted you is sitting two rows behind you, obviously is
going to make it almost impossible for you to do anything. So I think
to the biggest degree it's just being able to concentrate, even
passing, going through the regular reaction, for them to also have to
deal with the fact that the person might be sitting next to you in
class, might be passing you in the hall while you're walking to class,
or even going to class becomes something difficult and can be
triggering every- almost every moment.'').
---------------------------------------------------------------------------
Those survivors who do stay in school may experience a drop in
their academic performance. As another lawyer noted, and as we have
also seen in our own cases at the Center, ``I have not had a client yet
whose grades did not, not just slightly diminish, but markedly
diminish. Going from A's and B's to D's and F's. No doubt. It happens
every time.'' \11\
\11\ Id. at 94.
---------------------------------------------------------------------------
The threat that inadequate university support poses to a survivor's
continued education can have particularly grave costs for survivors
without significant financial means: they often experience heavy
financial costs, including lost scholarships, additional loans to
finance additional semesters, reduced future wages due to diminished
academic performance, and hefty expenses for housing changes and
medical care that should be provided, free of cost, by colleges and
universities. \12\
\12\ See generally Dana Bolger, Gender Violence Costs: Schools'
Financial Obligations Under Title IX, 125 Yale L.J. 2106 (2016)
(describing the financial impact of gender violence on student
survivors).
---------------------------------------------------------------------------
Only over the last few years, under pressure from student advocates
\13\ and the federal government, \14\ have schools begun to rise to
their legal and ethical duty to preserve survivors' educational
opportunities. \15\ Without a doubt, there is still much work to be
done. Now that many schools have acknowledged their responsibility to
address sexual violence, we are tasked with hard questions about how to
get those responses right. We cannot forget the high stakes of our
mission, colleges' very recent history of apathy, and the brave student
advocates who pushed schools to change.
\13\ Libby Sander, ``Quiet no longer, rape survivors put pressure
on colleges,'' the Chronicle of Higher Education (Aug. 12, 2013),
http://www.chronicle.com/article/Quiet-No-Longer-Rape/141049.
\14\ Alyssa Peterson & Olivia Ortiz, A Better Balance: Providing
Survivors of Sexual Violence with ``Effective Protection'' Against Sex
Discrimination Through Title IX Complaints, 125 Yale L.J. 2132, 2138-39
(2016); Robin Wilson, 2014 Influence List: Enforcer, Chronicle of
Higher Education (Dec. 15, 2014), available at http://
www.chronicle.com/article/enforcer-catherine-e-lhamon/150837
(describing Assistant Secretary for Civil Rights' Catherine Lhamon's
efforts to strengthen OCR's Title IX enforcement).
\15\ Letter from the National Women's Law Center, et al. to
Education Secretary John King (July 13, 2016), available at https://
nwlc.org/resources/sign-on-letter-supporting-title-ix-guidance-
enforcement/ (``These guidance documents and increased enforcement of
Title IX by the Office for Civil Rights have spurred schools to address
cultures that for too long have contributed to hostile environments
which deprive many students of equal educational opportunities.'');
---------------------------------------------------------------------------
a. CAMPUS SEXUAL ASSAULT IS PERVASIVE IN SCHOOLS ACROSS THE COUNTRY
Students in college experience high rates of sexual harassment and
sexual assault. During college, 62 percent of women and 61 percent of
men experience sexual harassment, \16\ and more than one in five women
and nearly one in 18 men are sexually assaulted. \17\ Nearly one in
four transgender and gender-nonconforming students are sexually
assaulted during college. \18\ When schools fail to provide effective
responses, the impact of sexual harassment and assault can be
devastating. \19\ For example, 34 percent of college student survivors
of sexual assault drop out of college. \20\
\16\ AAUW, Drawing the Line: Sexual Harassment on Campus17, 19
(2005) [hereinafter Drawing the Line], https://history.aauw.org/files/
2013/01/DTLFinal.pdf (noting differences in the types of sexual
harassment and reactions to it).
\17\ E.g., Association of American Universities [AAU], Report on
the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct,
13-14 (Sept. 2015) [hereinafter AAU Campus Climate Survey], https://
www.aau.edu/sites/default/files/--40--20Files/Climate--%20Survey/AAU--
Campus--Climate--Survey--12--14--15.pdf.
\18\ Id. at 13-14.
\19\ E.g., Audrey Chu, I Dropped Out of College Because I Couldn't
Bear to See My Rapist on Campus, VICE (Sept. 26, 2017), https://
broadly.vice.com/en--us/article/qvjzpd/i-dropped-out-of-college-
because-i-couldnt-bear-to-see-my-rapist-on-campus.
\20\ Cecilia Mengo & Beverly M. Black, Violence Victimization on a
College Campus: Impact on GPA and School Dropout, 18(2) J.C. STUDENT
RETENTION: RES., THEORY & PRAC. 234, 244 (2015), available at https://
doi.org/10.1177/1521025115584750.
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b. CAMPUS SEXUAL ASSAULT IS CONSISTENTLY AND VASTLY UNDERREPORTED
Reporting sexual assault can be hard for most victims. Only 12
percent of college survivors who experience sexual assault, \21\ and
only 7.7 percent of college students who experience sexual harassment,
report to their schools or the police. \22\ Students often choose not
to report for fear of reprisal, because they believe their abuse was
not important enough, \23\ because they are ``embarrassed, ashamed or
that it would be too emotionally difficult,'' \24\ because they think
the no one would do anything to help, \25\ and because they fear that
reporting would make the situation even worse. \26\ Common rape myths
that victims could have prevented their assault if they had only acted
differently, wore something else, or did not consume alcohol, only
exacerbate underreporting.
\21\ Poll: One in 5 women say they have been sexually assaulted in
college, WASH. POST (June 12, 2015) [hereinafter Washington Post Poll],
https://www.washingtonpost.com/graphics/local/sexual-assault-poll.
\22\ AAU Campus Climate Survey, supra note 17 at 35.
\23\ Id. at 36.
\24\ Id.
\25\ RAINN, Campus Sexual Violence: Statistics, https://
www.rainn.org/statistics/campus-sexual-violence.
\26\ GLSEN, The 2017 National School Climate Survey: The
Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth in
Our Nation's Schools 27 (2018) [hereinafter 2017 National School
Climate Survey], available at https://www.glsen.org/article/2017-
national-school-climate-survey-1.
---------------------------------------------------------------------------
Survivors of sexual assault may also be unlikely to make a report
to law enforcement because, in some instances, criminal reporting often
does not serve survivors' best interests or address their most pressing
needs. Police officers are concerned with investigating crimes and
catching perpetrators; they are not in the business of providing
supportive measures to survivors and making sure that they feel safe at
school. And some students--especially students of color, undocumented
students, \27\ LGBTQ students, \28\ and students with disabilities--can
be expected to be even less likely than their peers to report sexual
assault to the police due to increased risk of being subjected to
police violence and/or deportation. Survivors of color also may not
want to report to the police if their assailant is non-white, in order
to avoid exacerbating the overcriminalization of men and boys of color.
Whatever the reason, it is critical that survivors maintain the ability
to determine whether, when and how to report sexual violence.
\27\ See Jennifer Medina, Too Scared to Report Sexual Abuse. The
Fear: Deportation, N.Y. TIMES (April 30, 2017), https://
www.nytimes.com/2017/04/30/us/immigrants-deportation-sexual-
abuse.html?mcubz=3.
\28\ National Center for Transgender Equality, The Report of the
2015 U.S. Transgender Survey: Executive Summary 12 (Dec. 2016)
[hereinafter 2015 U.S. Transgender Survey], https://transequality.org/
sites/default/files/docs/usts/USTS--Executive-Summary-Dec17.pdf.
---------------------------------------------------------------------------
c. STUDENTS WHO DO REPORT CAMPUS SEXUAL ASSAULT ARE OFTEN IGNORED AND
SOMETIMES EVEN PUNISHED BY THEIR SCHOOLS
Unfortunately, students who do report to their schools too often
face hostility. Reliance on common rape myths that blame individuals
for the assault and other harassment they experience \29\ can lead
schools to minimize and discount sexual harassment reports. An
inaccurate perception that false accusations of sexual assault are
common \30\--despite the fact that men and boys are far more likely to
be victims of sexual assault than to be falsely accused of it \31\--can
also lead schools to dismiss reports of assault and assume that
complainants are being less than truthful. Indeed, students report that
after complaining to their schools about sexual assault, they faced
discipline, including for engaging in so-called ``consensual'' sexual
activity \32\ or premarital sex, \33\ for defending themselves against
their harassers, \34\ or for merely talking about their assault with
other students in violation of a school ``gag order'' or nondisclosure
agreement imposed by their school. \34\ The Center regularly receives
requests for legal assistance from student survivors across the country
who have been disciplined by their schools after reporting sexual
assault. \36\
\29\ See e.g., Bethonie Butler, Survivors of sexual assault
confront victim blaming on Twitter, WASH. POST (Mar. 13, 2014), https:/
/www.washingtonpost.com/blogs/she-the-people/wp/2014/03/13/survivors-
of-sexual-assault-confront-victim-blaming-on-twitter.
\30\ David Lisak et al., False Allegations of Sexual Assault: An
Analysis of Ten Years of Reported Cases, 16(12) VIOLENCE AGAINST WOMEN
1318-1334 (2010), available at https://doi.org/10.1177/
1077801210387747.
\31\ E.g., Tyler Kingkade, Males Are More Likely To Suffer Sexual
Assault Than To Be Falsely Accused Of It, HUFFINGTON POST (Dec. 8,
2014) [hereinafter Males Are More Likely to Suffer Sexual Assault]
[last updated Oct. 16, 2015], https://www.huffingtonpost.com/2014/12/
08/false-rape-accusations--n--6290380.html.
\32\ See, e.g., Brian Entin, Miami Gardens 9th-grader says she was
raped by 3 boys in school bathroom, WSVN-TV (Feb. 8, 2018), https://
wsvn.com/news/local/miami-gardens-9th-grader-says-she-was-raped-by-3-
boys-in-school-bathroom; Nora Caplan-Bricker, ``My School Punished
Me'', SLATE (Sept. 19, 2016), https://slate.com/human-interest/2016/09/
title-ix-sexual-assault-allegations-in-k-12-schools.html; Aviva Stahl,
'This Is an Epidemic': How NYC Public Schools Punish Girls for Being
Raped, VICE (June 8, 2016), https://broadly.vice.com/en--us/article/
59mz3x/this-is-an-epidemic-how-nyc-public-schools-punish-girls-for-
being-raped.
\33\ Sarah Brown, BYU Is Under Fire, Again, for Punishing Sex-
Assault Victims, CHRONICLE OF HIGHER EDUC. (Aug. 6, 2018), https://
www.chronicle.com/article/BYU-Is-Under-Fire-Again-for/244164.
\34\ NAACP Legal Defense and Educ. Fund, Inc. & Nat'l Women's Law
Ctr., Unlocking Opportunity for African American Girls: A Call to
Action for Educational Equity 25 (2014) [hereinafter Unlocking
Opportunity], https://nwlc.org/wp-content/uploads/2015/08/unlocking--
opportunity--for--african--american--girls--report.pdf.
\35\ See, e.g., Tyler Kingkade, When Colleges Threaten To Punish
Students Who Report Sexual Violence, HUFFINGTON POST (Sept. 9, 2015),
https://www.huffingtonpost.com/entry/sexual-assault-victims-
punishment--us--55ada33de4b0caf721b3b61c.
\36\ As of this writing, NWLC is litigating on behalf of three
student survivors who were punished or otherwise unfairly pushed out of
their high schools when they reported sexual harassment, including
sexual assault. Nat'l Women's Law Ctr., Miami School Board Pushed
Survivor of Multiple Sexual Assaults Out of School, Says NWLC (Jan. 15,
2019), https://nwlc.org/press-releases/miami-school-board-pushed-
survivor-of-multiple-sexual-assaults-out-of-school-says-nwlc; Nat'l
Women's Law Ctr., Pennridge School District Consistently Pushes
Survivors of Sex-Based Harassment Out of School, Says NWLC (Aug. 9,
2017), https://nwlc.org/press-releases/pennridge-school-district-
consistently-pushes-survivors-of-sex-based-harassment-out-of-school-
says-nwlc; Nat'l Women's Law Ctr., NWLC Files Lawsuit against PA School
District for Failing to Address Sexual Assault of High School Student
(May 31, 2017), https://nwlc.org/press-releases/nwlc-files-lawsuit-
against-pa-school-district-for-failing-to-address-sexual-assault-of-
high-school-student.
---------------------------------------------------------------------------
Women and girls of color, particularly Black women and girls,
already face discriminatory discipline due to race and sex stereotypes.
\37\ Schools are also more likely to ignore, blame, and punish women
and girls of color who report sexual harassment due to harmful race and
sex stereotypes that label them as ``promiscuous.'' \38\
\37\ Nat'l Women's Law Ctr., Let Her Learn: A Toolkit To Stop
School Pushout for Girls of Color 1 (2016) [hereinafter Let Her Learn:
Girls of Color], available at https://nwlc.org/resources/let-her-learn-
a-toolkit-to-stop-school-push-out-for-girls-of-color.
\38\ E.g., Nancy Chi Cantalupo, And Even More of Us Are Brave:
Intersectionality & Sexual Harassment of Women Students of Color, 42
HARVARD J.L. & GENDER 16, 24-29 (forthcoming) [hereinafter And Even
More of Us Are Brave], available at https://ssrn.com/abstract=3168909.
---------------------------------------------------------------------------
Similarly, LGBTQ students are less likely to be believed and more
likely to be blamed due to stereotypes that they are more
``promiscuous,'' ``hypersexual,'' ``deviant,'' or bring the
``attention'' upon themselves. \39\ Students with disabilities, too,
are less likely to be believed because of stereotypes about people with
disabilities being less credible \40\ and because they may have greater
difficulty describing or communicating about the harassment they
experienced, particularly if they have a cognitive or developmental
disability. \41\
\39\ See, e.g., Gillian R. Chadwick, Reorienting the Rules of
Evidence, 39 CARDOZO L. REV. 2115, 2118 (2018), http://
cardozolawreview.com/heterosexism-rules-evidence; Laura Dorwart, The
Hidden #MeToo Epidemic: Sexual Assault Against Bisexual Women, MEDIUM
(Dec. 3, 2017), https://medium.com/@lauramdorwart/the-hidden-metoo-
epidemic-sexual-assault-against-bisexual-women-95fe76c3330a.
\40\ The Arc, People with Intellectual Disabilities and Sexual
Violence 2 (Mar. 2011), available at https://www.thearc.org/
document.doc?id=3657.
\41\ E.g., Nat'l Inst. of Justice, Examining Criminal Justice
Responses to and Help-Seeking Patterns of Sexual Violence Survivors
with Disabilities 11, 14-15 (2016), available at https://www.nij.gov/
topics/crime/rape-sexual-violence/Pages/challenges-facing-sexual-
assault-survivors-with-disabilities.aspx.
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III. PREVENTION PROGRAMS ON CAMPUSES
Since the reauthorization of the Violence Against Women Act (VAWA)
in 2013 amended the Clery Act, campuses have been required to implement
prevention and awareness programs for incoming students and employees
on dating violence, domestic violence, sexual assault and stalking.
\42\ These prevention and awareness programs must include the
definition of consent, a description of safe and positive options for
bystander intervention, definitions of sexual assault, dating violence,
domestic violence, and stalking, and information on risk reduction.
\43\ The prevention programs include positive and healthy behaviors to
foster healthy relationships, programs that seek to change behavior and
social norms in healthy and safe manners, and programs to increase
understanding of domestic violence, dating violence, sexual assault,
and stalking. \44\ Clery specifies that these programs would be
``informed by research or assessed for value, effectiveness, or outcome
that are intended to stop dating violence, domestic violence, sexual
assault, and stalking before they occur.'' \45\ Since Clery was amended
and these changes went into effect in 2014, campuses have been
experimenting with promising prevention programs and should continue to
build to on this in addressing campus sexual assault.
\42\ 34 C.F.R. 668.46(j).
\43\ 34 C.F.R. 668.46(j)(1)(i).
\44\ 34 C.F.R. 668.46(j)(2)(iii) & (iv).
\45\ 34 C.F.R. 668.46(k)(2)(ii).
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Clery also requires that officials who conduct investigations
receive annual training on dating violence, domestic violence,
stalking, and sexual assault, and ``on how to conduct an investigation
and hearing process that protects the safety of victims and promotes
accountability.'' \46\ In addition to the Clery requirements, in
ensuring that trainings focus on ``protect[ing] the safety of victims
and promot[ing] accountability,'' these trainings, and trainings for
employees who respond to sexual assault generally on campuses, should
also should include practical ways to prevent and identify sexual
assault, including the behaviors that may lead to assault, the
attitudes of bystanders that may allow conduct to continue, the
potential for revictimization of survivors by employees responding to
and investigating sexual assault, trauma-informed methods for
responding to students who are sexually assaulted, including the use of
nonjudgmental language and an understanding of the neurobiology of
trauma.
\46\ 34 C.F.R. 668.46(j)(2)(iv).
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IV. CAMPUS PROCESSES NEED TO BE FAIR TO ALL STUDENTS
Since the Clery Act and Title IX already requires that schools
adopt and enforce procedures to address sexual assault that is prompt,
equitable, and impartial reauthorization of the Higher Education Act
should support and reaffirm the principles and requirements of both
Clery and Title IX, including ensuring that schools address sexual
harassment before it causes greater harm to a student's education and
create equitable processes that preserve and restore access to
education for survivors of sexual violence. \47\
\47\ 34 C.F.R. 106.8(b).
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However, recently, the Department of Education proposed changes to
its Title IX regulations i, which would impose upon the nearly 7,000
colleges and universities across the country, prescriptive and
confusing requirements. Under these rules, schools would be forced to
ignore sexual assault in many cases and create confusing, unfair, and
harmful grievance processes that would only deter survivors and
witnesses from participating in their schools' investigations. Title IX
protects all students from sex discrimination, including sexual
violence, and so any changes to the Department's Title IX rules will
necessarily have an impact on how colleges and universities respond to
sexual assault.
a. SCHOOLS MUST TAKE EFFECTIVE AND IMMEDIATE ACTION WHEN RESPONDING TO
SEXUAL ASSAULT AND OTHER FORMS OF HARASSMENT THAT SCHOOL EMPLOYEES KNOW
ABOUT OR REASONABLY SHOULD KNOW ABOUT
For the better part of two decades, the Department has used one
consistent standard to determine if a school violated Title IX by
failing to adequately address sexual assault or other forms of sexual
harassment. The Department's 2001 Guidance, which went through public
notice-and-comment and has been enforced in both Democratic and
Republican administrations, \48\ defines sexual harassment as
``unwelcome conduct of a sexual nature.'' \49\ This definition and the
obligation rightly charges schools with responding to harassment before
it escalates to a point that students suffer severe harm. The 2001
Guidance requires schools to address student-on-student harassment if
any employee ``knew, or in the exercise of reasonable care should have
known'' about the harassment. In the context of employee-on-student
harassment, the 2001 Guidance requires schools to address harassment
``whether or not the [school] has `notice' of the harassment.'' \50\
Under the 2001 Guidance, the Department would consider schools that
failed to ``take immediate and effective corrective action'' to be in
violation of Title IX. \51\ For years, these standards have
appropriately guided colleges in understanding their obligations around
responding to campus sexual assault.
\48\ These standards have been reaffirmed time and time again, in
2006 by the Bush Administration, in 2010, 2011, and 2014 in guidance
documents issued by the Obama administration, and even in the 2017
guidance document issued by the current Administration. U.S. Dep't of
Educ. Office for Civil Rights, Dear Colleague Letter: Sexual Harassment
(Jan. 25, 2006) [hereinafter 2006 Guidance], https://www2.ed.gov/about/
offices/list/ocr/letters/sexhar-2006.html; U.S. Dep't of Educ. Office
for Civil Rights, Dear Colleague Letter: Harassment and Bullying (Oct.
26, 2010) [hereinafter 2010 Guidance], https://ww2ed.gov/about/offices/
list/ocr/letters/colleague-201104.pdf; U.S. Dep't of Educ. Office of
Civil Rights, Dear Colleague Letter: Sexual Violence at 4, 6, 9, &16
(Apr. 4, 2011) [hereinafter 2011 Guidance], https://ww2ed.gov/about/
offices/list/ocr/letters/colleague-201104.pdf; U.S. Dep't of Educ.
Office for Civil Rights, Questions and Answers on Title IX and Sexual
Violence 1-2 (Apr. 29, 2014) [hereinafter 2014 Guidance], https://
www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf; U.S.
Dep't of Educ. Office for Civil Rights, Questions and Answers on Campus
Sexual Misconduct (Sept. 2017) [hereinafter 2017 Guidance], https://
www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf.
\49\ U.S. Dep't of Educ., Office for Civil Rights, Revised Sexual
Harassment Guidance: Harassment of Students by School Employees, Other
Students, or Third Parties (2001) [hereinafter 2001 Guidance], https://
www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf.
\50\ Id.
\51\ Id.
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This standard considers the reality that many students disclose
sexual abuse to employees who do not have the authority to institute
corrective measures, both because students seeking help turn to
whatever adult they trust the most, regardless of that adult's official
role, and because students are likely not informed about which
employees have authority to address the harassment. The 2001 Guidance
also requires schools to address all employee-on-student sexual
harassment, ``whether or not the [school] has `notice' of the
harassment.'' \52\ The 2001 Guidance recognized the particular harms of
students being preyed on by adults in positions of authority, and
students' vulnerability to pressure from adults to remain silent, and
accordingly acknowledged schools' heightened responsibilities to
address harassment by their employees.
\52\ Id. at 10.
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There are, however, some employees who would not be required to
report sexual assault of which it receives notice in confidential
settings--such as campus mental-health counselors, social workers,
psychologist, or other employees with a professional license requiring
confidentiality. It is important to ensure that these relationships
continued to exist in these settings so that students get the help that
they need and that these professionals are trained to understand when
they may keep a report confidential.
b. Complainants Must Be Afforded Non-Punitive Interim Measures to
Preserve and Restore Access to Educational Programs
Campuses should afford complainants non-punitive interim measures
that preserve and restore their access to educational programs. As the
Department appropriately noted in its 2001 guidance, schools ``should
take reasonable, timely, age-appropriate and effective corrective
action, including steps tailored to the specific situation.'' \53\
Schools should also take into account the severity or pervasiveness of
the alleged incident(s) and any continuing effects of the incident(s)
on the complainant.
\53\ Id. at 16.
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This means that in some instances, a school may need to transfer
the respondent to another class or dorm even if it may burden him.
Because the school should aim to restore and preserve access to the
school's programs for the victim, it would be inappropriate to force
the complainant to change all of her own classes and housing
assignments in order to avoid her harasser.
Schools should also use restorative supportive measures that are
often necessary to ensure a complainant's equal access to educational
opportunities. These include the ability to retake a class, to remove a
``Withdrawal'' or failing grade from the harassment victim's
transcript, or to obtain reimbursement of lost tuition after being
forced to withdraw and retake a course as a result of sexual assault.
Also, schools may need to review any disciplinary actions taken against
the complainant to ascertain if there is a causal connection between
the harassment and the misconduct that may result in disciplinary
action against the complainant (for example, a complainant may be
disciplined for skipping class, even though she skipped that class to
avoid seeing her perpetrator).
Schools also should make all necessary interim measures available
to all parties and at no cost to them. \54\ Examples of effective
interim measures include:
\54\ Know Your IX, Letter to Sec'y Arne Duncan & Asst. Sec'y
Catherine Lhamon 3-4 (Nov. 6, 2014), available at https://
www.knowyourix.org/wp-content/uploads/2017/01/2014-11-6-Know-Your-IX-
USSA-Letter-to-OCR-Redacted.pdf. See also TIXPA Sec. 4 (amending DEOA
by adding (d)(30)).
---------------------------------------------------------------------------
(1) health accommodations (e.g., counseling, other mental health
and substance abuse services, medical services not covered by health
insurance, disability services);
(2) safety accommodations (e.g., changes to academic,
extracurricular, housing, transportation, dining, and employment
assignments; no-contact orders; protection from retaliation; campus
escort services; housing assistance; increased security and
monitoring); and
(3) academic accommodations (e.g., academic support services;
homework extensions; exam retakes; excused absences; preserved
eligibility for grants, scholarships, and other activities or honors).
In addition, schools should never require a survivor to agree to a
mutual no-contact order. Such a requirement would be contrary to
decades of expert consensus that mutual no-contact orders are harmful
to victims, because it gives abusers an opportunity to manipulate their
victims into violating the mutual order, \55\ and allowing
perpetrators to potentially turn what was intended to be a protective
measure into a punitive measure against the survivor. Groups such as
the Association for Student Conduct Administration (ASCA) agree that
``[e]ffective interim measures, including . . . actions restricting the
accused, should be offered and used while cases are being resolved, as
well as without a formal complaint.'' \56\
\55\ E.g., Joan Zorza, What Is Wrong with Mutual Orders of
Protection? 4(5) DOMESTIC VIOLENCE REP. 67 (1999), available at https:/
/www.civicresearchinstitute.com/online/article.php?pid=18&iid=1005.
\56\ Ass'n for Student Conduct Admin., ASCA 2014 White Paper:
Student Conduct Administration & Title IX: Gold Standard Practices for
Resolution of Allegations of Sexual Misconduct on College Campuses 2
(2014) [hereinafter ASCA 2014 White Paper], https://www.theasca.org/
Files/Publications/ASCA%202014%20White%20Paper.pdf.
---------------------------------------------------------------------------
c. INVESTIGATIONS MUST BE EQUITABLE AND MUST NOT CREATE BARRIERS TO
PARTICIPATION
Institutions of higher education have worked to respond to sexual
assault in ways that are tailored to their campus community and
culture, size, location, resources, and state or local legal
requirements. There is no one-size-fits all model. As ASCA has noted,
``[w]ith different missions, resources, staffing models, funding
sources, system policies, and especially campus cultures and student
populations at postsecondary institutions across the United States,
each college or university must develop its own policies and
procedures.'' \57\ But there are effectively four types of hearing and
investigatory models for adjudicating campus sexual assault in place
now: the ``investigative model,'' the ``hearing model,'' the
``investigation and hearing hybrid,'' and the ``investigation and
deliberative panel hybrid.'' \58\ The investigative model relies on
skilled investigators gather evidence and interview the parties [] and
any other witness in separate, individual meetings, then write an
investigative report where they review the evidence and fact factual
findings.'' \59\ Sometimes, after the investigator completes the
investigation report, the report is forwarded to an adjudicator to
issue findings and sanctions. \60\ This model is common in the
employment context to address workplace discrimination, including
sexual harassment. \61\ The ``hearing model'' relies more on the
parties, rather than the investigator and the school, to gather and
present evidence to support their claims, to a hearing panel that does
not do their own investigation, but rather ``passively hear[s]
testimony and consider[s] evidence presented by all parties and
witnesses, then make factual findings based on that testimony and
evidence.'' \62\ The ``investigation and hearing hybrid'' combines both
and factual findings are made by a hearing panel based on the
investigative report and witness testimony. \63\ The investigation with
the deliberative panel requires the ``investigator to appear before the
panel to answer questions before the panel makes a final decision.''
\64\ Any of these models can be an appropriate response to sexual
assault and other forms of sexual harassment.
\57\ Id. at 1.
\58\ Nancy Chi Cantalupo, Comment Regarding Proposed Rule Sec.
106.45(b)(3) at 4, Filed in Response to the Notice of Proposed
Rulemaking regarding Nondiscrimination on the Basis of Sex in Education
Programs or Activities Receiving Federal Financial Assistance, Office
[for] Civil Rights, Department of Education, ED-2018-OCR-0064, RIN
1870-AA14 [hereinafter Cantalupo Comment].
\59\ Id.
\60\ ASCA 2014 White Paper, supra note 56 at 16.
\61\ Cantalupo Comment, supra note 58 at 4.
\62\ Id.
\63\ Id.
\64\ Id.
---------------------------------------------------------------------------
In one comment submitted by 24 private liberal arts colleges and
universities, the comment noted that the schools have different
policies, and that ``[t]he model chosen by each Institution is based on
careful consideration of many factors, including what has worked for
them in years of experience, what best fits their individual school's
mission, culture, and values, what is most sensible given the size and
unique organization of their administrations and programs, and what
kinds of sexual harassment cases they each most commonly face, which
can differ significantly in nature, scope, and quantity in ways that
may warrant significantly differing approaches.'' \65\ Representing 60
of the leading public and private research universities in the country,
the American Association of Universities noted in its comment that
``approaches [should] allow institutions to maintain, utilize, and
respect the different schools' values, student populations, community
resources, and educational philosophies. Student populations vary
widely in terms of the proportion of students residing on-campus or
off-campus, the mix of undergraduate and graduate/ professional
students, the presence of nontraditional students, and so on. Mandating
that all schools address these issues in the same way will limit their
ability to tailor their policies and procedures to their campus
community and implement their individual educational missions.'' \66\
Finally, the Association of Independent Colleges and Universities in
Massachusetts, which represents 55 colleges and universities, wrote in
its comment that ``[r]ather than prescribing highly specific, `one size
fits all' rules that would be rigidly applied to large research
universities, small colleges, commuter colleges, institutions that
feature experiential education, and others, the Department should limit
its concern to whether a school has adopted procedures that are
intended to provide fundamental fairness to the rights of all
parties.'' \67\
\65\ Letter from Pepper Hamilton to Sec'y Elisabeth DeVos at 2
(Jan. 30, 2019) [hereinafter Pepper Hamilton Comment], https://
www.pepperlaw.com/resource/35026/22G2, (submitted comment on behalf of
24 private, liberal arts colleges and universities throughout the
United States).
\66\ See Letter from Ass'n of Am. Univs. (AAU) to Brittany Bull at
2-3 (Jan. 24, 2019) [hereinafter AAU Letter], https://www.aau.edu/
sites/default/files/AAU-Files/Key-Issues/Higher-Education-Regulation/
AAU-Title-IX-Comments-1-24-19.pdf (discussing ``higher costs associated
with the regulation's prescribed quasi-court models'').
\67\ Letter from Ass'n of Indep. Colls. and Univs. (AICUM) to
Sec'y Elisabeth DeVos at 3 (Jan.23, 2019) [hereinafter AICUM Letter],
http://aicum.org/wp-content/uploads/2019/01/AICUM-public-comments-on-
Notice-of-Proposed-Rulemaking-E2-80-9CNPRM-E2-80-9D-amending-
regulations-implementing-Title-IX-of-the-Education-Amendments-of-1972-
Title-IX-E2-80-9D-Docket-ID-ED-2018-OCR-0064.pdf
---------------------------------------------------------------------------
While no one investigatory model fits all, whatever investigation
or hearing the school uses must be equitable--that is, fair to all
students. Under Title IX and Clery, schools are already required to
have proceedings for investigating sexual assault that are prompt and
equitable. In addition, no investigatory model should place the burden
on a student--whether complainant or respondent--to ``prove'' the case;
rather, institutions have their own independent interest in finding out
what happened in order to respond appropriate to ensure its campus
community is safe, which should not depend on the advocacy skills or
resources of student parties.
Fair processes also require that institutions train employees on
the policies addressing campus sexual assault, investigation
requirements and techniques, trauma-informed responses to sexual
assault, and resources and options for support; balance a survivor's
request for confidentiality with its obligation to its student body;
provide effective interim measures that preserve, and if necessary,
restore, equal access to education; designate reasonable timeframes for
each part of the investigation; provide timely and clear notice to the
parties in advance of any meeting or hearing concerning the
investigation, and of their rights and responsibilities under school
policy and law; use of the preponderance of the evidence standard for
investigations; allow parties an equal opportunity to produce witnesses
and other evidence, and an equal opportunity to respond to each other's
claims, evidence, or testimony (if applicable); eliminate direct
questioning or cross-examination of the parties and witnesses given
there are not corresponding safeguards; provide notice to the parties
of the outcome of the investigation; provide appropriate remedies that
would prevent recurrence of the sexual assault or harassment and
restore equal access to the complainant's education; and allow equal
appeal rights. These principles have also recognized by the Department
in earlier Title IX guidance \68\ and by ASCA. \69\
\68\ 2001 Guidance, supra note 49 at 20.
\69\ ASCA 2014 White Paper, supra note 56 at 2.
---------------------------------------------------------------------------
During an investigation, to the extent possible, a school should
only disclose information regarding allegations of sexual assault to
those who are responsible for handling the schools' response or
investigation. If a student requests that their name not be revealed to
the alleged perpetrator or asks the school to not take action or
investigate, the school should explain that its response will therefore
be limited, including pursuing any disciplinary action against the
alleged perpetrator. The school will also need to determine whether or
not they can still provide a safe educational environment by honoring
that request, considering for example, whether or not there would be an
increased risk of the alleged perpetrator committing additional acts of
sexual violence.
Ensuring an equitable process also means that the school must use
the preponderance-of-the-evidence standard. Resolving sexual harassment
reports using the preponderance of the evidence is necessary to assure
fairness and equality. Only that standard, the same one used in nearly
all civil actions, including civil rights claims, places both parties
on a level playing field, acknowledging that both students' educations
are equally important. \70\ For this reason, student conduct
professionals have long endorsed using the preponderance standard for
making determinations in all student misconduct investigations,
including sexual assault, and continue to do so. \71\ The standard that
places both parties on an equal footing is particularly necessary in
the case of disciplinary proceedings that implicate students' civil
rights--rights that demand universities protect and value those
students that have historically been systemically unprotected and
undervalued, excluded from education and public life.
\70\ See Deborah L. Brake, Fighting the Rape Culture Wars Through
the Preponderance of the Evidence Standard, 78 Mont. L. Rev. 109, 133-
37 (2017) [hereinafter Fighting the Rape Culture Wars] (arguing that
only the preponderance of the evidence standard holds in equipoise the
credibility of the parties and the relative interests at stake).
\71\ Id. at 128 (discussing an influential Model Student Conduct
Code published in 2004); Chris Loschiavo & Jennifer L. Waller,
Association for Student Conduct Administration, The Preponderance of
the Evidence Standard: Use in Higher Education Campus Conduct
Processes, http://www.theasca.org/files/The-20Preponderance-20of-
20Evidence-20Standard.pdf.
---------------------------------------------------------------------------
Requiring a heightened ``clear and convincing evidence'' of a
sexual assault before taking disciplinary or restorative action
prioritizes the educational interests and well-being of named
assailants over complainants and creates too much risk that sexual
assault complaints will be dismissed based on the very biases that have
long led to women and girls being disbelieved, belittled, and blamed
when they speak out about their experiences of sexual assault and other
forms of sexual harassment. \72\ A clear and convincing standard would
do the most harm to the students whose credibility is most likely to be
doubted, including and especially LGBTQ people and women of color. \73\
Most likely, administrators judging student complaints under such a
heightened standard would functionally reinstate the old, and long
discarded, common law corroborating witness requirement for sexual
assault, resulting in virtually automatic finding that no assault could
be substantiated in the large number of cases that lack a third-party
witness. (Of course, the lack of such a witness would not be
dispositive in a civil, or even a criminal, proceeding.) As a result,
complainants will be less likely to come forward under such a system,
knowing that the applicable standard will require administrators to
view their side of the story with a de facto presumption against their
veracity.
\72\ Fighting the Rape Culture Wars, supra note 70 at 131.
\73\ Id. at 137-39.
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d. LIVE-CROSS EXAMINATION WOULD DETER REPORTING OF CAMPUS SEXUAL
ASSAULT AND IS UNNECESSARY
The systems we build on campus to investigate and address student
reports of sexual harassment must both enable truth-seeking and avoid
perpetuating a hostile environment. Direct cross-examination of a
victim by his or her assailant or the assailant's representative in
campus misconduct proceeding is likely to result in the latter without
uniquely promoting the former. Being asked detailed, personal, and
humiliating questions often rooted in gender stereotypes and rape myths
that tend to blame victims for the assault they experienced \74\ would
understandably discourage many students--parties and witnesses--from
participating in the grievance process, chilling those who have
experienced or witnessed harassment from coming forward. \75\ This is
especially the case in student misconduct proceedings, where schools
are less likely to be equipped to apply general rules of evidence or
trial procedure or apply the procedural protections that witnesses have
during cross-examination in criminal or civil court proceedings \76\
and ensure that they are not subject to improper questions. Nor is
there a judge available to rule on objections. Any live cross-
examination requirement would also lead to sharp inequities, due
especially to the ``huge asymmetry'' that would arise when respondents
are able to afford attorneys and complainants cannot. \77\ According to
the president of Association of Title IX Administrators (ATIXA), the
live cross-examination provision alone--``even with accommodations like
questioning from a separate room--would lead to a 50 percent drop in
the reporting of misconduct.'' \78\
\74\ Zydervelt, S., Zajac, R., Kaladelfos, A. and Westera, N.,
Lawyers' Strategies for Cross-Examining Rape Complainants: Have we
Moved Beyond the 1950s?, BRITISH JOURNAL OF CRIMINOLOGY, 57(3), 551-569
(2016).
\75\ See, e.g., Eliza A. Lehner, Rape Process Templates: A Hidden
Cause of the Underreporting of Rape, 29 YALE J. OF LAW & FEMINISM 207
(2018) (``rape victims avoid or halt the investigatory process'' due to
fear of ``brutal cross-examination''); Michelle J. Anderson, Women Do
Not Report the Violence They Suffer: Violence Against Women and the
State Action Doctrine, 46 VILL. L. REV. 907, 932 936-37 (2001)
(decision not to report (or to drop complaints) is influenced by
repeated questioning and fear of cross-examination); As one defense
attorney recently acknowledged, ``Especially when the defense is
fabrication or consent as it often is in adult rape cases you have to
go at the witness. There is no way around this fact. Effective cross-
examination means exploiting every uncertainty, inconsistency, and
implausibility. More, it means attacking the witness's very
character.'' Abbe Smith, Representing Rapists: The Cruelty of Cross-
Examination and Other Challenges for a Feminist Criminal Defense
Lawyer, 53 AM. CRIM. L. REV. 255, 290 (2016).
\76\ The proposed rules impose only mild restrictions on what it
considers ``relevant'' evidence. See proposed Sec. 106.45(b)(3)(vi)
(excluding evidence ``of the complainant's sexual behavior or
predisposition, unless such evidence about the complainant's sexual
behavior is offered to prove that someone other than the respondent
committed the conduct alleged'' or to prove consent). The problems
inherent in the evidence restrictions the Department chooses to adopt
(and those it chooses not to) are discussed in Part IV.E.
\77\ Andrew Kreighbaum, New Uncertainty on Title IX, INSIDE HIGHER
EDUCATION (Nov. 20, 2018), https://www.insidehighered.com/news/2018/11/
20/title-ix-rules-cross-examination-would-make-colleges-act-courts-
lawyers-say.
\78\ Id.
---------------------------------------------------------------------------
Many advocates of live cross-examination in school grievance
procedures, assume that cross-examination will improve the reliability
of a decision-maker's determinations of responsibility and allow them
to discern ``truth.'' \79\ But the reality is much more complicated,
particularly in schools, where procedural protections against abusive,
misleading, confusing, irrelevant, or inappropriate tactics are largely
unavailable. Empirical studies show that adults give significantly more
inaccurate responses to questions that involve the features typical of
cross-examination, like relying on leading questions, compound or
complex questions, rapid-fire questions, closed (i.e., yes or no)
questions, questions that jump around from topic to topic, questions
with double negatives, and questions containing complex syntax or
complex vocabulary. \80\ While these common types of questions are
likely to confuse adults and result in inaccurate or misleading
answers, these problems are compounded and magnified when such
questions are targeted at young people and minors. \81\
\79\ See, e.g., 83 Fed. Reg. at 61476. The Department of Education
offers no evidence to support its assumption that live cross
examination will improve the reliability of schools' determinations
regarding sexual assault; it merely cites a case which relies on John
Wigmore's evidence treatise. See id. (citing California v. Green, 399
U.S. 149, 158 (1970) (quoting John H. Wigmore, 5 Evidence sec. 1367, at
29 (3d ed., Little, Brown & Co. 1940))).
\80\ Emily Henderson, Bigger Fish to Fry: Should the Reform of
Cross-Examination Be Expanded Beyond Vulnerable Witnesses, 19(2)
INTERNATIONAL J. OF EVIDENCE AND PROOF 83, 84-85 (2015) (collecting
studies of adults).
\81\ Saskia Righarts, Sarah O'Neill & Rachel Zajac, Addressing the
Negative Effect of Cross-Examination Questioning on Children's
Accuracy: Can We Intervene?, 37 (5) LAW AND HUMAN BEHAVIOR 354, 354
(2013) (``Cross-examination directly contravenes almost every principle
that has been established for eliciting accurate evidence from
children.'').
---------------------------------------------------------------------------
Neither the Constitution nor any other federal law requires live
cross-examination in public school conduct proceedings. The Supreme
Court has not required any form of cross-examination (live or indirect)
in disciplinary proceedings in public schools under the Due Process
clause. Instead, the Court has explicitly said that a 10-day suspension
does not require ``the opportunity . . . to confront and cross-examine
witnesses.'' \82\ The vast majority of courts that have reached the
issue have agreed that live cross-examination is not required in public
school disciplinary proceedings, as long as there is a meaningful
opportunity to have questions posed by a hearing examiner. \83\
Moreover, requiring cross-examination of both parties could put
respondents in the position of self-incrimination; if the school allows
a respondent to not be cross-examined in order to avoid self-
incrimination, but requires the complainant to be cross-examined, it
would create an inequity that at the very least would violate Title IX.
\82\ Goss v. Lopez, 419 U.S. 565, 583 (1975). Coplin v. Conejo
Valley Unified Sch. Dist., 903 F. Supp. 1377, 1383 (C.D. Cal. 1995);
Fellheimer v. Middlebury Coll., 869 F. Supp. 238, 247 (D. Vt. 1994).
\83\ The Department cites to one case, Doe v. Baum, 903 F.3d 575,
581 (6th Cir. 2018) to support its proposed cross-examination
requirement. However, Baum is anomalous. See e.g., Dixon, 294 F.2d at
158, cert. denied 368 U.S. 930 (1961) (expulsion does not require a
full-dress judicial hearing, with the right to cross-examine
witnesses.''); Osteen v. Henley, 13 F.3d 221, 225 (7th Cir. 1993)
(holding no due process violation in expulsion of college student
without providing him right to cross-examination); Winnick v. Manning,
460 F.2d 545, 549 (2d Cir. 1972) (``The right to cross-examine
witnesses generally has not been considered an essential requirement of
due process in school disciplinary proceedings.); Gorman v. Univ. of
Rhode Island, 837 F.2d 7, 16 (1st Cir. 1988) (a public institution need
not conduct a hearing which involves the right to confront or cross-
examine witnesses). See also Joanna L. Grossman & Deborah L. Brake, A
Sharp Backward Turn: Department of Education Proposes to Protect
Schools, Not Students, in Cases of Sexual Violence, VERDICT (Nov. 29,
2018) [hereinafter A Sharp Backward Turn], available at https://
verdict.justia.com/2018/11/29/a-sharp-backward-turn-department-of-
education-proposes-to-protect-schools-not-students-in-cases-of-sexual-
violence.
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While requiring cross-examination ``is problematic for all
institutions, regardless of size and resources available,'' \84\ it
would fall particularly heavily on community colleges, vocational
schools, online schools, and other educational institutions that lack
the resources of a traditional four-year college or university. The
difficulty and burden imposed by live cross-examination will also
likely ensure that proceedings to address sexual assault allegations
are consistently delayed, harming all who seek prompt resolution of
such matters and especially harming those who are depending on final
determinations to address and remedy sexual assault.
\84\ E.g., Letter from Liberty University to Sec'y Elisabeth DeVos
at 4 (Jan. 24, 2019) [hereinafter Liberty University Letter], http://
www.liberty.edu/media/1617/2019/jan/Title-IX-Public-Comments.pdf.
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Most fundamentally, any rule requiring institutions of higher
education to conduct live, quasi-criminal trials with live cross-
examination to address allegations of sexual harassment, when no such
requirement exists for addressing any other form of student or employee
misconduct at schools, communicates the message that those alleging
sexual assault or other forms of sexual harassment are uniquely
unreliable and untrustworthy. Implicit in requiring cross-examination
for complaints of sexual harassment, but not for complaints of other
types of student misconduct, is an extremely harmful, persistent, deep-
rooted, and misogynistic skepticism of sexual assault and other
harassment complaints. Sexual assault is already dramatically
underreported. This underreporting, which significantly harms schools'
ability to create safe and inclusive learning environments, will only
be exacerbated if any such reporting forces complainants into
traumatic, burdensome, and unnecessary procedures built around the
presumption that their allegations are false. This selective
requirement of cross-examination harms complainants and educational
institutions.
Unsurprisingly, Title IX experts, student conduct experts,
institutions of higher education, \85\ and mental health experts
overwhelmingly oppose live cross-examination. ATIXA, for example,
opposes live, adversarial cross-examination, instead recommending that
investigators ``solicit questions from the parties, and pose those
questions the investigators deem appropriate in the investigation
interviews.'' \86\ ASCA agrees that schools should ``limit[] advisors'
participation in student conduct proceedings.'' \87\ The American Bar
Association recommends that schools provide ``the opportunity for both
parties to ask questions through the hearing chair.'' \88\ The
Association of Independent Colleges and Universities in Massachusetts
(AICUM), representing 55 accredited, nonprofit institutions of higher
education, oppose the cross-examination requirement because it would
``deter complainants from coming forward, making it more difficult for
institutions to meet Title IX's very purpose, preventing discrimination
and harassment, stopping it when it does occur, and remedying its
effects.'' \89\ The Association of American Universities (AAU),
representing 60 leading public and private universities, oppose the
requirement because it can be ``traumatizing and humiliating'' and
``undermines other educational goals like teaching acceptance of
responsibility.'' \90\ And over 900 mental health experts who
specialize in trauma state that subjecting a survivor of sexual assault
to cross-examination in the school's investigation would ``almost
guarantee[] to aggravate their symptoms of post-traumatic stress,'' and
``is likely to cause serious to harm victims who complain and to deter
even more victims from coming forward.'' \91\
\85\ Pepper Hamilton Comment at 15 (``[A]dversarial cross-
examination will unnecessarily increase the anxiety of both parties
going through the process. For complainants in particular, this may
lead them to simply not come forward or utilize the school's process,
no matter how meritorious their claims may be. As a result, our
campuses will be less safe.''); Letter from Georgetown University to
Sec'y Elizabeth DeVos as 7 (Jan. 30. 2019), https://
georgetown.app.box.com/s/fwk978e3oai8i5hpq0wqa70cq9iml2re (``Mandatory
cross-examination by advisors will have a chilling effect on reporting
and therefore diminish accountability of perpetrators. We already know
that the majority of students who experience sexual misconduct never
proceed with a formal complaint. There is little doubt that the specter
of being cross-examined by a trained criminal defense attorney during a
school's grievance procedure would drive down the number of students
seeking redress through formal process even further.'').
\86\ ATIXA, ATIXA Position Statement on Cross-Examining: The Urge
to Transform College Conduct Proceedings into Courtrooms 1 (Oct. 5,
2018), available at https://atixa.org/wordpress/wp-content/uploads/
2018/10/ATIXA-Position-Statement--Cross-Examination-final.pdf.
\87\ ASCA 2014 White Paper, supra note 56 at 2.
\88\ Am. Bar Ass'n, ABA Criminal Justice Section Task Force On
College Due Process Rights and Victim Protections: Recommendations for
Colleges and Universities in Resolving Allegations of Campus Sexual
Misconduct 8-10 (June 2017) [hereinafter Am. Bar Ass'n Task Force].
\89\ AICUM Letter, supra note 67.
\90\ AAU Letter, supra note 66.
\91\ Letter from 903 Mental Health Professionals and Trauma
Specialists to Ass't Sec'y Kenneth L. Marcus at 3 (Jan. 30, 2019)
[hereinafter Mental Health Professionals Letter], https://nwlc.org/wp-
content/uploads/2019/01/Title-IX-Comment-from-Mental-Health-
Professionals.pdf.
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Instead of allowing for cross examination, colleges and
universities have developed creative systems that allow parties to
challenge each other's and witnesses' accounts. For example, some
schools allow parties to submit questions through a neutral and trained
school official, such as a hearing panel member, to ask questions on
their behalf and screen for abusive, irrelevant, and inappropriate
questions. \92\ Alternatively, under a ``single investigator model,''
students can be re-interviewed to dispute the other party's testimony.
\93\ Crucially, these models demonstrate that fair and effective
hearings need not, and affirmatively should not, replicate criminal
trials.
\92\ At Harvard Law School, for example, students can now submit
questions through a panel. HLS Sexual Harassment Resources and
Procedure for Students, Harvard Law School 3.4.1 (Dec. 2014), https://
hls.harvard.edu/content/uploads/2015/07/HLSTitleIXProcedures150629.pdf.
\93\ Djuna Perkins, Behind the headlines: An insider's guide to
Title IX and the student discipline process for campus sexual assaults,
Boston Bar Journal (July 8, 2015), https://bostonbarjournal.com/2015/
07/08/behind-the-headlines-an-insiders-guide-to-title-ix-and-the-
student-discipline-process-for-campus-sexual-assaults/.
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e. CAMPUSES MUST NOT ALLOW MEDIATION FOR SEXUAL ASSAULT
Mediation is a strategy often used in schools to resolve peer
conflict, where both sides must take responsibility for their actions
and come to a compromise. However, mediation is never appropriate for
resolving sexual assault, even on a voluntary basis, because of the
power differential between assailants and victims, the potential for
re-traumatization, and the implication that survivors somehow share
``partial'' responsibility for their own assault. It also is difficult
to ensure such programs are truly voluntary.
The dangers of mediation are also exacerbated at schools where
mediators are untrained in trauma and sexual assault and at some
religious schools, where mediators may be especially like to rely on
harmful rape myths, such as ``good girls forgive,'' that retraumatize
survivors. \94\ Furthermore, students with developmental disabilities--
both complainants and respondents--are vulnerable to being pressured or
manipulated into participating in mediation and agreeing to harmful
mediation outcomes, including outcomes that unfairly remove a
complainant or respondent with a disability from their current school
and instead push them into an alternative school.
\94\ E.g., Grace Watkins, Sexual Assault Survivor to Betsy DeVos:
Mediation Is Not a Viable Resolution, TIME (Oct. 2, 2017), http://
time.com/4957837/campus-sexual-assault-mediation.
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Experts also agree that mediation is inappropriate for resolving
sexual violence. For example, the National Association of Student
Personnel Administrators (NASPA), representing student affairs
administrators in higher education, stated in 2018 that it was
concerned about students being ``pressured into informal resolution
against their will.'' \95\ Mental health experts also oppose mediation
for sexual assault because it would ``perpetuate sexist prejudices that
blame the victim'' and ``can only result in further humiliation of the
victim.'' \96\
\95\ Nat'l Ass'n of Student Personnel Administrators (NASPA),
NASPA Priorities for Title IX: Sexual Violence Prevention & Response 1-
2 [hereinafter NASPA Title IX Priorities], available at https://
www.naspa.org/images/uploads/main/NASPA--Priorities--re--Title--IX--
Sexual--Assault--FINAL.pdf.
\96\ Mental Health Professionals Letter, supra note 91 at 3.
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In light of the many risks from informal processes, we recommend
the following safeguards be met for any informal resolution process:
such processes should not presume any shared responsibility for the
assault or pressure the complainant to ``forgive'' the respondent;
should be conducted by trained facilitators who understand the dynamics
of sexual assault, particularly on college campuses; should be trauma-
informed; should ensure that students fully understand what the process
entails before agreeing to participate in it; and should allow parties
to stop the informal process and start with the formal process at any
time.
f. CAMPUSES MUST NOT CONSIDER IRRELEVANT OR PREJUDICIAL EVIDENCE
In campus investigations of sexual assault, evidence should be
excluded if it is irrelevant, \97\ or if it is relevant but its
probative value is substantially outweighed by a danger of unfair
prejudice, confusing the issues, misleading the factfinder, undue
delay, wasting time, and/or needlessly presenting cumulative evidence.
\98\
\97\ See Fed. R. Evid. 401, 402.
\98\ See Fed. R. Evid. 403.
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Schools should not be allowed to improperly consider any evidence
related to the sexual history between the parties, even if it is
``offered to prove consent''-- if such evidence relies on victim-
blaming and ``slut-shaming'' myths that cause unfair prejudice to the
complainant, mislead the investigator(s) or decisionmaker(s), or render
the evidence entirely irrelevant to the investigation. Also, schools
should recognize that the fact that students have a current or previous
consensual dating relationship, it does not imply any consent.
g. CAMPUSES MUST PROVIDE REMEDIES TO PRESERVE OR RESTORE ACCESS TO
EDUCATION
Upon completing an investigation, schools should inform both sides
in writing at the same time of (1) whether the alleged sex-based
harassment occurred; (2) school-wide remedies to eliminate any hostile
environment that exists and to prevent its recurrence; \99\ and (3) the
parties' right to appeal, if any. Schools should also inform the
complainant of (4) any individual remedies available to the
complainant; and (5) (i) if non-physical sexual harassment occurred,
any sanctions on the respondent that directly affect complainant; \100\
or (ii) if sexual violence occurred, all sanctions on the respondent.
\101\ Finally, schools should also inform the respondent of (6) all
sanctions on the respondent; and (7) none of the individual remedies
offered to the complainant.
\99\ 34 C.F.R. 106.8(b) (requiring ``equitable'' procedures).
\100\ 20 U.S.C. Sec. 1221(d) (specifying that ``[n]othing in this
chapter,'' including the Family Educational Rights and Privacy Act
(FERPA), ``shall be construed to affect the applicability of . . .
[T]itle IX''). See also 2001 Guidance, supra note 49 at vii n.3.
\101\ FERPA, 20 U.S.C. Sec. 1232g(b)(6); 34 C.F.R. Sec.
668.46(k)(3)(iv).
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Examples of school-wide remedies include training students and
staff on identifying and responding to sex-based harassment or taking
additional steps to address the way a school handles its athletics
program. \102\ Individual remedies for the complainant include
extending any necessary interim measures and, where necessary to remedy
a hostile environment, the ability to withdraw from and retake classes
without financial penalties, extension of the complainant's eligibility
for grants and scholarships for any additional time needed to complete
their degree, and reimbursement of any lost tuition or student loan
interest. Sanctions on the respondent that directly affect the
complainant include no-contact orders, suspensions, expulsions, and
transfers. \103\
\102\ 2001 Guidance, supra note 49 at 16, 19.
\103\ See id. at vii n.3.
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h. CAMPUSES MUST HAVE EQUITABLE APPEAL RIGHTS
Experts and school leaders alike support equal appeal rights. While
the Department's proposed Title IX rules may require schools to provide
respondents appeal rights that they deny complainants, \104\ the
American Bar Association recommends that the grounds for appeal include
``a sanction disproportionate to the findings in the case (that is, too
lenient or too severe).'' \105\ Even the white paper by four Harvard
professors that is cited by the Department \106\ in support of it NPRM
recognizes that schools should allow ``[e]ach party (respondent and
complainant) [to] request an impartial appeal.'' \107\
\104\ Proposed Sec. Sec. 106.45(b)(1)(i), 106.45(b)(1)(vi),
106.45(b)(4)(ii)(E), 106.45(b)(5), and 106.45(b)(7)(i)(A) (Although
Secretary DeVos has claimed that the proposed rules make ``[a]ppeal
rights equally available to both parties,'' they may not in fact
provide equal grounds for appeal to both parties. In the proposed
rules, the Department's repeatedly draws a distinction between
``remedies'' and ``sanctions,'' implying that sanctions are not a
category of remedies. (Elisabeth DeVos, Betsy DeVos: It's time we
balance the scales of justice in our schools, WASH. POST (Nov. 20,
2018), https://www.washingtonpost.com/opinions/betsey-devos-its-time-
we-balance-the-scales-of-justice-in-our-schools/2018/11/20/8dc59348-
ecd6-11e8-9236-bb94154151d2--story.html)).
\105\ Am. Bar Ass'n Task Force, supra note 88 at 5.
\106\ 83 Fed. Reg. at 61464 n.2.
\107\ Elizabeth Bartholet, Nancy Gertner, Janet Halley & Jeannie
Suk Gersen, Fairness For All Students Under Title IX 5 (Aug. 21, 2017)
[hereinafter Fairness For All Students Under Title IX], https://
dash.harvard.edu/bitstream/handle/1/33789434/Fairness--20for--20All--
20Students.pdf.
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i. CAMPUSES MUST PROHIBIT RETALIATION AGAINST PARTIES AND WITNESSES
Schools should have explicit prohibitions against retaliation, not
only from the moment that a complaint is initiated, but prohibitions
against threats of retaliation made to discourage survivors from filing
complaints and to intimidate witnesses and complainants from
participating in the grievance process.
V. THE DEPARTMENT OF EDUCATION'S PROPOSED TITLE IX RULES, IF
FINALIZED, WOULD FORCE SCHOOLS TO IGNORE SEXUAL HARASSMENT AND TO
CREATE UNFAIR GRIEVANCE PROCEDURES
The Department of Education's proposed Title IX rules remove
significant protections for students and employees who experience
sexual assaults and other forms of sexual harassment, apparently
motivated by invidious sex stereotypes that women and girls are likely
to lie about sexual assault and other forms of sexual harassment and by
the perception that sexual assault and other forms of sexual harassment
have a relatively trivial impact on those who experience it.
As also described in NWLC's comment on the proposed rules, which is
appended to this testimony, proposed rules ignore the devastating
impact of sexual violence and other forms of sexual harassment in
schools. Instead of effectuating Title IX's purpose of protecting
students and school employees from sexual abuse and other forms of
sexual harassment, that is, from unlawful sex discrimination, they make
it harder for individuals to report abuse, allow (and sometimes
require) schools to ignore reports when they are made, and unfairly
tilt the investigation process in favor of respondents, to the direct
detriment of survivors.
a. THE DEPARTMENT'S PROPOSED RULES WOULD DISCOURAGE REPORTING AND
MANDATE DISMISSAL OF COMPLAINTS OF SEXUAL ASSAULT
Under the proposed rules, schools would not be required to address
any sexual harassment and assault unless one of a small subset of
school employees had ``actual knowledge'' of it. \108\ The proposed
rules also unjustifiably limits the set of school employees for whom
actual notice of sexual assault or other forms of harassment triggers
the school's Title IX duties. For example, under the proposed rules, if
a college or graduate student told their professor, residential
advisor, or teaching assistant that they had been raped by another
student or by a professor or other university employee, the university
would have no obligation to help them.
\108\ Proposed Sec. Sec. 106.30, 106.44.
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Under the Department's proposed rules, even when students find the
courage to talk to the adult school employees they trust, schools would
frequently have no obligation to respond. For example, if the proposed
rules had been in place, colleges like Michigan State and Penn State
would have had no responsibility to stop Larry Nassar and Jerry
Sandusky--even though their victims reported their experiences to at
least 14 school employees over a 20-year period--including athletic
trainers, coaches, counselors, and therapists \109\--because those
employees are not considered to be school officials who have the
``authority to institute corrective measures.'' \110\ These proposed
provisions would absolve some of the worst Title IX offenders of legal
liability.
\109\ Julie Mack & Emily Lawler, MSU doctor's alleged victims
talked for 20 years. Was anyone listening?, MLIVE (Feb. 8, 2017),
https://www.mlive.com/news/index.ssf/page/msu--doctor--alleged--
sexual--assault.html.
\110\ Proposed Sec. 106.30.
---------------------------------------------------------------------------
The Department's proposed rules would also require schools to
dismiss all complaints of off-campus or online sexual harassment that
happen outside of a school-sponsored program--even if the student is
forced to see their harasser at school every day and the harassment
directly impacts their education as a result. The proposed rules
conflict with Title IX's statutory language, which does not depend on
where the underlying conduct occurred but instead prohibits
discrimination that ``exclude[s a person] from participation in, . . .
denie[s a person] the benefits of, or . . . subject[s a person] to
discrimination under any education program or activity . . . .'' \111\
For almost two decades, the Department's guidance documents have agreed
that schools are responsible for addressing sexual harassment if it is
``sufficiently serious to deny or limit a student's ability to
participate in or benefit from the education program,'' \112\
regardless of where it occurs. \113\ No student who experiences out-of-
school harassment should be forced to wait until they are sexually
harassed again on school grounds or during a school activity in order
to receive help from their school. Nor should they be required to sit
in class next to their assailant with no recourse.
\111\ 20 U.S.C. Sec. 1681(a).
\112\ 2001 Guidance, supra note 49.
\113\ 2017 Guidance, supra note 48 at 1 n.3 (``Schools are
responsible for redressing a hostile environment that occurs on campus
even if it relates to off-campus activities''); 2014 Guidance (``a
school must process all complaints of sexual violence, regardless of
where the conduct occurred''); 2011 Guidance (``Schools may have an
obligation to respond to student-on-student sexual harassment that
initially occurred off school grounds, outside a school's education
program or activity''); 2010 Guidance at 2 (finding Title IX violation
where ``conduct is sufficiently severe, pervasive, or persistent so as
to interfere with or limit a student's ability to participate in or
benefit from the services, activities, or opportunities offered by a
school,'' regardless of location of harassment).
---------------------------------------------------------------------------
Sexual harassment and assault occur both on-campus and in off-
campus spaces closely associated with school. Nearly nine in ten
college students live off campus. \114\ According to a 2014 U.S.
Department of Justice report, 95 percent of sexual assaults of female
students ages 18-24 occur outside of school. \115\ Forty-one percent of
college sexual assaults involve off-campus parties \116\ and many
fraternity and sorority houses are located off campus. Students are
also far more likely to experience sexual assault if they are in a
sorority (nearly one and a half times more likely) or fraternity
(nearly three times more likely). \117\ But under the proposed rules,
if a college or graduate student is sexually assaulted by a classmate
in off-campus housing, their university would be required to dismiss
their complaint--even though almost nine in ten college students live
off campus. \118\ The proposed rules would also pose particular risks
to students at community colleges and vocational schools. Approximately
5.8 million students attend community college (out of 17.0 million
total undergraduate students), \119\ and 16 million students attend
vocational school. \120\ But because none of these students live on
campus, the harassment they experience by faculty or other students is
especially likely to occur outside of school, and therefore outside of
the protection of the proposed Title IX rules. Finally, proposed Sec.
106.8(d) would create a unique harm to the 10 percent of U.S.
undergraduate students who participate in study abroad programs. If any
of these students report experiencing sexual harassment during their
time abroad, including within their study abroad program, their schools
would be required to dismiss their complaints--even if they are forced
to see their harasser in the study abroad program every day, and even
if they continue to be put into close contact with their harasser when
they return to their home campus.
\114\ Rochelle Sharpe, How Much Does Living Off-Campus Cost? Who
Knows?, N.Y. TIMES (Aug. 5, 2016) [hereinafter How Much Does Living
Off-Campus Cost?], https://www.nytimes.com/2016/08/07/education/edlife/
how-much-does-living-off-campus-cost-who-knows.html (87 percent).
\115\ U.S. Dep't of Justice, Bureau of Justice Statistics, Rape
and Sexual Assault Victimization Among College-Age Females, 1995-2013
at 6 (Dec. 2014), https://www.bjs.gov/content/pub/pdf/rsavcaf9513.pdf.
\116\ United Educators, Facts From United Educators' Report -
Confronting Campus Sexual Assault: An Examination of Higher Education
Claims (2015), https://www.ue.org/sexual--assault--claims--study.
\117\ Jennifer J. Freyd, The UO Sexual Violence and Institutional
Betrayal Surveys: 2014, 2015, and 2015-2016 (Oct. 16, 2014), available
at https://www.uwire.com/2014/10/16/sexual-assault-more-prevalent-in-
fraternities-and-sororities-study-finds (finding that 48.1 percent of
females and 23.6 percent of males in Fraternity and Sorority Life (FSL)
have experienced non-consensual sexual contact, compared with 33.1
percent of females and 7.9 percent of males not in FSL).
\118\ How Much Does Living Off-Campus Cost?, supra note 114.
\119\ Statista, Community colleges in the United States -
Statistics & Facts, https://www.statista.com/topics/3468/community-
colleges-in-the-united-states; National Center for Education
Statistics, Fast Facts, https://nces.ed.gov/fastfacts/
display.asp?id=372 (about 17.0 million students enrolled in
undergraduate programs in fall 2018).
\120\ David A. Tomar, Trade Schools on the Rise, THE BEST SCHOOLS
(last visited Jan. 20, 2019), https://thebestschools.org/magazine/
trade-schools-rise-ashes-college-degree (an estimated 16 million
students were enrolled in vocational schools in 2014).
---------------------------------------------------------------------------
By forcing schools to dismiss complaints of out-of-school sexual
harassment, the proposed rules would ``unduly tie the hands of school
leaders who believe every child deserves a safe and healthy learning
environment.'' \121\ It would also require schools to single out
complaints of sexual assault and other forms of harassment by treating
them differently from other types of student misconduct that occur off-
campus, perpetuating the pernicious notion that sexual assault is
somehow less significant than other types of misconduct and making
schools vulnerable to litigation by students claiming unfairness or
discrimination in their school's policies treating harassment based on
sex differently from other forms of misconduct.
\121\ Letter from The School Superintendents Ass'n (AASA) to Sec'y
Elisabeth DeVos at 5 Jan. 22, 2019) [hereinafter AASA Letter], http://
aasa.org/uploadedFiles/AASA--Blog(1)/AASA Title IX Comments Final.pdf
---------------------------------------------------------------------------
b. THE PROPOSED DEFINITION OF SEXUAL HARASSMENT IMPROPERLY PREVENTS
SCHOOLS FROM PROVIDING A SAFE LEARNING ENVIRONMENT
The Department's proposed rules would also require schools to
dismiss all complaints of sexual harassment that do not meet its
proposed narrow definition. The proposed rules \122\ define sexual
harassment as (1) ``[a]n employee of the recipient conditioning the
provision of an aid, benefit, or service of the recipient on an
individual's participation in unwelcome sexual conduct''; (2)
``[u]nwelcome conduct on the basis of sex that is so severe, pervasive,
and objectively offensive that it effectively denies a person equal
access to the [school's] education program or activity''; or (3)
``[s]exual assault, as defined in 34 CFR 668.46(a).'' The proposed
rules mandate dismissal of all complaints of harassment that do not
meet this standard. Thus, if a complaint did not allege quid pro quo
harassment or sexual assault, a school would be required to dismiss a
student's Title IX complaint if the harassment has not yet advanced to
a point that it is actively harming a student's education. A school
would be required to dismiss such a complaint even if it involved
harassment by a teacher or other school employee. A school would be
required to dismiss such a complaint even if the school would typically
take action to address behavior that was not based on sex but was
similarly harassing, disruptive, or intimidating. The Department's
proposed definition is out of line with Title IX purposes and
precedent, discourages reporting, unjustifiably creates a higher
standard for sexual harassment than other types of harassment and
misconduct, and excludes many forms of sexual harassment that interfere
with equal access to educational opportunities.
\122\ Sec. Sec. 106.30 and 106.45(b)(3).
---------------------------------------------------------------------------
The Department does not provide a persuasive justification to
change the definition of sexual harassment from that in the 2001
Guidance, which defines sexual harassment as ``unwelcome conduct of a
sexual nature.'' \123\ The current definition rightly charges schools
with responding to harassment before it escalates to a point that
students suffer severe harm. But under the Department's proposed,
narrower definition of harassment, students would be forced to endure
repeated and escalating levels of abuse, from a student or professor,
before their schools would be permitted to take steps to investigate
and stop the harassment.
\123\ Id.
---------------------------------------------------------------------------
In addition, the proposed rules are inconsistent with the Supreme
Court's liability standard for money damages, which holds schools
liable for sexual harassment that, inter alia, ``effectively denie[s]
[a person] equal access to an institution's resources and
opportunities'' or its ``opportunities or benefits.'' \124\ Setting
aside for a moment the fact that agency enforcement standards need
not--and should not--be as demanding as litigation standards for money
damages, the proposed rule is nonetheless still more burdensome than
the Supreme Court's standard because denial of equal access to a
school's ``program'' or ``activity'' is a more burdensome threshold
than denial of equal access to a school's ``resources,''
``opportunities,'' and ``benefits.''
\124\ Davis, 526 U.S. at 631 (emphasis added).
---------------------------------------------------------------------------
The Department's proposed definition is also vague and complicated.
Administrators, employees, and students would struggle to understand
which complaints meet the standard. These difficulties would be
significantly compounded for students with developmental disabilities.
Students confronted with this lengthy, complicated definition of sexual
harassment would have a hard time understanding whether the harassment
they endured meets the Department's narrow standard. How would these
students know what allegations and information to put in their formal
complaint in order to avoid mandatory dismissal? A student may believe
that she suffered harassment that was both severe and pervasive, but
does she know whether it was also ``objectively offensive'' and whether
it ``effectively denied'' her of ``equal access'' to a ``program or
activity?''
The Department's proposed definition would discourage students from
reporting sexual harassment. Already, the most commonly cited reason
for students not reporting sexual harassment is the fear that it is
``insufficiently severe'' to yield a response. \125\ Moreover, if a
student is turned away by her school after reporting sexual harassment
because it does not meet the proposed narrow definition of sexual
harassment, the student is even more unlikely to report a second time
when the harassment escalates. Similarly, if a student knows of a
friend or classmate who was turned away after reporting sexual
harassment, the student is unlikely to make even a first report. By the
time a student reports sexual harassment that the school can or must
respond to, it may already be too late: because of the impact of the
harassment, the student might already be ineligible for an important AP
course, disqualified from applying to a dream college, or derailed from
graduating altogether.
\125\ Kathryn J. Holland & Lilia M. Cortina, ``It Happens to Girls
All the Time'': Examining Sexual Assault Survivors' Reasons for Not
Using Campus Supports'', 59 AM. J. COMMUNITY PSYCHOL. 50, 61 (2017),
available at https://doi.org/10.1002/ajcp.12126.
---------------------------------------------------------------------------
In addition, the proposed definition excludes many forms of sexual
harassment, including some that schools are required to report under
the Clery Act's requirements. Under the proposed rules, schools would
be required to dismiss some complaints of stalking, dating violence,
and domestic violence, while also being required to report those
complaints to the Department under Clery. \126\ These inconsistent
requirements would cause confusion among school administrators
struggling to make sense of their obligations under federal law and
demonstrate the perverse nature of sharply limiting schools' ability to
respond to harassment complaints.
\126\ See 20 U.S.C. Sec. 1092(f)(6)(iii); 20 U.S.C Sec.
1092(f)(6)(iv)); 34 C.F.R. Sec. 668.46(a)).
---------------------------------------------------------------------------
Finally, the Department's harassment definition and mandatory
dismissal requirement would create inconsistent rules for sexual
harassment as compared to other misconduct. Harassment based on race or
disability, for example, would continue to be governed by the more
inclusive ``severe or pervasive'' standard for creating a hostile
educational environment. \127\ And schools could address harassment
that was not sexual in nature even if that harassment was not ``severe
and pervasive'' while, at the same time, being required to dismiss
complaints of similar conduct if it is deemed sexual. This would create
inconsistent and confusing rules for schools in addressing different
forms of harassment. It would send a message that sexual harassment is
less deserving of response than other types of harassment and that
victims of sexual harassment are inherently less deserving of
assistance than victims of other forms of harassment. It would also
force students who experience multiple and intersecting forms of
harassment to slice and dice their requests for help from their schools
in order to maximize the possibility that the school might respond,
carefully excluding reference to sexual taunts and only reporting
racial slurs by a harasser, for example. \128\ Further, it would also
make schools vulnerable to litigation by students who rightfully claim
that being subjected to more burdensome requirements in order to get
help for sexual harassment than their peers who experience other forms
of student misconduct, is discrimination based on their sex, in direct
violation of Title IX. In other words, schools would be hard-pressed to
figure out how to comply with Title IX when they are instructed to
follow a new set of rules that demands responses that violate Title IX.
\127\ See e.g., National R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 116 (2002) (applying ``severe or pervasive'' standard to racial
discrimination hostile work environment claim).
\128\ See A Sharp Backward Turn, supra note 83.
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c. THE PROPOSED DELIBERATE INDIFFERENCE STANDARD WOULD ALLOW SCHOOLS TO
DO VIRTUALLY NOTING IN RESPONSE TO COMPLAINTS OF SEXUAL ASSAULT AND
OTHER FORMS OF SEXUAL HARASSMENT
Under the proposed rules, schools would simply have to not be
deliberately indifferent \129\ to sexual harassment and assault; in
other words, their response to harassment would be deemed to comply
with Title IX as long as it was not clearly unreasonable. The
deliberate indifference standard is a much more lax standard than that
set out by the current Department guidance, which requires schools to
act ``reasonably'' and ``take immediate and effective corrective
action'' to resolve harassment complaints. \130\
\129\ Proposed 34 C.F.R. Sec. 106.44(a).
\130\ 2001 Guidance, supra note 49.
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The Department's proposed ``safe harbors'' within this deliberate
indifference standard weaken it still further, allowing schools to
avoid liability even if they unreasonably handled a Title IX complaint.
As long as a school follows the requirements set out in the proposed
rules, \131\ the school's response to harassment complaints could not
be challenged, effectively insulating them from any review. \132\ And
by codifying the rule that the Department would not find a school
deliberately indifferent based on a school's erroneous determination
regarding responsibility, the Department further provides a safe harbor
for schools that erroneously determine that sexual harassment did not
occur, but does not provide a corresponding rule protecting schools
from liability if they erroneously decide that sexual harassment did
occur. \133\ This means it would always be safer for a school to make a
finding of non-responsibility for sexual harassment. Indeed, such a
rubber stamp finding would be completely permissible under the proposed
rules as long as the school went through the motions of even a weak
required process.
\131\ Proposed Sec. 106.45.
\132\ See proposed Sec. 106.44(b)(2) (``If the Title IX
Coordinator files a formal complaint in response to the reports, and
the recipient follows procedures (including implementing any
appropriate remedy as required) consistent with proposed Sec. 106.45
in response to the formal complaint, the recipient's response to the
reports is not deliberately indifferent.'').
\133\ See proposed Sec. 106.44(b)(5), 83 Fed. Reg. at 61471
(explaining that proposed Sec. 106.44(b)(5) is meant to clarify that
OCR will not ``conduct a de novo review of the recipient's
investigation and determination of responsibility for a particular
respondent'').
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The practical effects of this proposed rule would shield schools
from any accountability under Title IX, even if a school mishandles a
complaint, fails to provide effective supports for survivors and other
harassment victims, and wrongly determines against the weight of the
evidence that no sexual assault or harassment occurred.
d. THE DEPARTMENT'S PROPOSED RULES CREATE INCONSISTENT AND UNFAIR
STANDARDS
The Department's longstanding interpretation of Title IX requires
that schools use a ``preponderance of the evidence'' standard, which
means ``more likely than not''.to decide whether sexual assault or
other forms of harassment occurred. \134\ The proposed rules \135\
depart from that practice, and establishes a system where schools could
elect to use the more demanding ``clear and convincing evidence''
standard in sexual harassment matters, while allowing all other student
or employee misconduct investigations to be governed by the
preponderance of the evidence standard, even if they carry the same
maximum penalties. \136\ Indeed in some instances, the proposed rules
would require that schools utilize the ``clear and convincing
evidence'' standard. \137\
\134\ The Department has required schools to use the preponderance
standard in Title IX investigations since as early as 1995 and
throughout both Republican and Democratic administrations. For example,
its April 1995 letter to Evergreen State College concluded that its use
of the clear and convincing standard ``adhere[d] to a heavier burden of
proof than that which is required under Title IX'' and that the College
was ``not in compliance with Title IX.'' U.S. Dep't of Educ., Office
for Civil Rights, Letter from Gary Jackson, Regional Civil Rights
Director, Region X, to Jane Jervis, President, The Evergreen State
College (Apr. 4, 1995), at 8, http://www2.ed.gov/policy/gen/leg/foia/
misc-docs/ed--ehd--1995.pdf. Similarly, the Department's October 2003
letter to Georgetown University reiterated that ``in order for a
recipient's sexual harassment grievance procedures to be consistent
with Title IX standards, the recipient must . . . us[e] a preponderance
of the evidence standard.'' U.S. Dep't of Educ., Office for Civil
Rights, Letter from Howard Kallem, Chief Attorney, D.C. Enforcement
Office, to Jane E. Genster, Vice President and General Counsel,
Georgetown University (Oct. 16, 2003), at 1, http://www.ncherm.org/
documents/202-GeorgetownUniversity--110302017Genster.pdf.
\135\ Proposed Sec. 106.45(b)(4)(i).
\136\ Proposed Sec. 106.45(b)(4)(i) would permit schools to use
the preponderance standard only if it uses that standard for all other
student misconduct cases that carry the same maximum sanction and for
all cases against employees. This is a one-way ratchet: a school would
be permitted to use the higher clear and convincing evidence standard
in sexual assault cases, while using a lower standard in all other
cases.
\137\ Proposed Sec. 106.45(b)(4)(i) (explaining that the clear
and convincing evidence standard must be used if schools use that
standard for complaints against employees, and whenever a school uses
clear and convincing evidence for any other case of student
misconduct).
---------------------------------------------------------------------------
The Department's decision to allow schools to impose a more
burdensome standard in sexual harassment matters than in any other
investigations of student or employee misconduct appears to rely on the
stereotype and false assumption that those who report sexual assault
and other forms of sexual harassment (mostly women) are more likely to
lie than those who report physical assault, plagiarism, or the wide
range of other school disciplinary violations and employee misconduct.
When this unwarranted skepticism of sexual assault and other harassment
allegations, grounded in gender stereotypes, infect sexual misconduct
proceedings, even the preponderance standard ``could end up operating
as a clear-and-convincing or even a beyond-a-reasonable-doubt standard
in practice.'' \138\ Previous Department guidance recognized that,
given these pervasive stereotypes, the preponderance standard was
required to ensure that the playing field, at least on paper, was as
even as possible. The Department now ignores the reality of these
harmful stereotypes by imposing a standard of evidence that encourages,
rather than dispels, the stereotype that women and girls lie about
sexual assault and other harassment, a result that is contrary to Title
IX.
\138\ Michael C. Dorf, Further Questions About the Scope of the
Dep't of Education's Authority Under Title IX, DORF ON LAW (Dec. 3,
2018), https://dorfonlaw.org/2018/12/further-questions-about-scope-of-
dept.html#more.
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The preponderance standard is used for nearly all civil cases,
including where the conduct at issue could also be the basis for a
criminal prosecution. \139\ The preponderance standard is also used for
people facing more severe deprivations than suspension, expulsion or
other school discipline, or termination of employment or other
workplace discipline, including in proceedings to determine paternity,
\140\ competency to stand trial, \141\ enhancement of prison sentences,
\142\ and civil commitment of defendants acquitted by the insanity
defense. \143\ The Supreme Court has only required something higher
than the preponderance standard in a narrow handful of civil cases ``to
protect particularly important individual interests,'' \144\ where
consequences far more severe than suspension, expulsion, or firing are
threatened, such as termination of parental rights, \145\ civil
commitment for mental illness, \146\ deportation, \147\
denaturalization, \148\ and juvenile delinquency with the ``possibility
of institutional confinement.'' \149\ In all of these cases,
incarceration or a permanent loss of a profound liberty interest was a
possible outcome--unlike in school sexual harassment proceedings.
Moreover, in all of these cases, the government and its vast power and
resources was in conflict with an individual--in contrast to school
harassment investigations involving two students with roughly equal
resources and equal stakes in their education, two employees who are
also similarly situated, or a student and employee, where any power
imbalance would tend to favor the employee respondent rather than the
student complainant. \150\ Preponderance is the only standard of proof
that treats both sides equally and is consistent with Title IX's
requirement that grievance procedures be ``equitable.'' \151\
\139\ To take one famous example, O.J. Simpson was found
responsible for wrongful death in civil court under the preponderance
standard after he was found not guilty for murder in criminal court
under the beyond-a-reasonable-doubt standard. See B. Drummond Ayres,
Jr., Jury Decides Simpson Must Pay $25 Million in Punitive Award, N.Y.
TIMES (Feb. 11, 1997), https://www.nytimes.com/1997/02/11/us/jury-
decides-simpson-must-pay-25-million-in-punitive-award.html.
\140\ Rivera v. Minnich, 483 U.S. 574, 581 (1987).
\141\ Cooper v. Oklahoma, 517 U.S. 348, 368 (1996).
\142\ McMillan v. Pennsylvania, 477 U.S. 79, 91-92 (1986).
\143\ Jones v. United States, 463 U.S. 354, 368 (1983).
\144\ Addington v. Texas, 441 U.S. 418, 424 (1979) (civil
commitment).
\145\ Santosky v. Kramer, 455 U.S. 745, 758 (1982).
\146\ Addington, 441 U.S. at 432.
\147\ Woodby v. INS, 385 U.S. 276, 286 (1966).
\148\ Chaunt v. United States, 364 U.S. 350, 353 (1960);
Schneiderman v. United States, 320 U.S. 118, 125 (1943).
\149\ In re Winship, 397 U.S. 358, 367-68 (1970).
\150\ Despite overwhelming Supreme Court and other case law in
support of the preponderance standard, the Department cites just two
state court cases and one federal court district court case to argue
for the clear and convincing standard. 83 Fed. Reg. at 61477. The
Department claims that expulsion is similar to loss of a professional
license and that held that the clear and convincing standard is
required in cases where a person may lose their professional license
Id. However, even assuming expulsion is analogous to loss of a
professional license, which is certainly debatable as it is usually far
easier to enroll in a new school than to enter a new profession, this
is a weak argument, as there are numerous state and federal cases that
have held that the preponderance standard is the correct standard to
apply when a person is at risk of losing their professional license.
See, e.g., In re Barach, 540 F.3d 82, 85 (1st Cir. 2008); Granek v.
Texas State Bd. of Med. Examiners, 172 S.W. 3d 761, 777 (Tex. Ct. App.
2005). As an example, the Department cites to Nguyen v. Washington
State Dep't of Health, 144 Wash.2d 516 (Wash. 2001), cert. denied 535
U.S. 904 (2002) for the contention that courts ``often'' employ a clear
and convincing evidence standard to civil administrative proceedings.
In that case, the court required clear and convincing evidence in a
case where a physician's license was revoked after allegations of
sexual misconduct. But that case is an anomaly; a study commissioned by
the U.S. Department of Health and Human Services found that two-thirds
of the states use the preponderance of the evidence standard in
physician misconduct cases. See Randall R. Bovbjerg et al., State
Discipline of Physicians 14-15 (2006),https://aspe.hhs.gov/sites/
default/files/pdf/74616/stdiscp.pdf. See also Kidder, William,
(En)forcing a Foolish Consistency?: A Critique and Comparative Analysis
of the Trump administration's Proposed Standard of Evidence Regulation
for Campus Title IX Proceedings (January 27, 2019), available at http:/
/ssrn.com/abstract=3323982 (providing an in depth comparative analysis
of the many instances in which the preponderance standard is used
instead of the clear and convincing evidence standard).
\151\ The Department's bizarre claim that the preponderance
standard is the ``lowest possible standard of evidence'' (83 Fed. Reg.
at 61464) is simply wrong as a matter of law. Courts routinely apply
lower standard of proof in traffic stops (``reasonable suspicion'') and
conducting searches (``probable cause''). Terry v. Ohio, 392 U.S. 1
(1968) (traffic stops); U.S. Const. amend. IV (searches).
---------------------------------------------------------------------------
For this reason, Title IX experts and school leaders alike support
the preponderance standard, which is used to address harassment
complaints at over 80 percent of colleges. \152\ The National Center
for Higher Education Risk Management (NCHERM) Group, whose white paper
Due Process and the Sex Police was cited by the Department, \153\ has
promulgated materials that require schools to use the preponderance
standard, because ``[w]e believe higher education can acquit fairness
without higher standards of proof.'' \154\ And even the Department
admits it is ``reasonable'' for a school to use the preponderance
standard. \155\
\152\ Heather M. Karjane, et al., Campus Sexual Assault: How
America's Institutions of Higher Education Respond 120 (Oct. 2002),
https://www.ncjrs.gov/pdffiles1/nij/grants/196676.pdf.
\153\ 83 Fed. Reg. at 61464 n.2.
\154\ The NCHERM Group, Due Process and the Sex Police 2, 17-18
(Apr. 2017), available at https://www.ncherm.org/wp-content/uploads/
2017/04/TNG-Whitepaper-Final-Electronic-Version.pdf.
\155\ 83 Fed. Reg. at 61477.
---------------------------------------------------------------------------
By permitting and sometimes mandating the clear and convincing
evidence standard in sexual harassment proceedings, the Department
treats sexual harassment differently from other types of school
disciplinary violations and employee misconduct, uniquely targeting and
disfavoring sexual harassment complainants. First, the Department
argues that Title IX harassment investigations are different from civil
cases, and therefore may appropriately require a more burdensome
standard of proof, because many Title IX harassment investigations do
not use full courtroom procedures, such as active participation by
lawyers, rules of evidence, and full discovery. \156\ However, the
Department does not exhibit this concern for the lack of full-blown
judicial proceedings to address other types of student or employee
misconduct, including other examples of student or employee misconduct
implicating the civil rights laws enforced by the Department. Schools
have not, as a general rule, imposed higher evidentiary standards in
other misconduct matters, nor have employers more generally in employee
misconduct matters, to compensate for the proceedings' failure to be
full-blown judicial trials, and the Department does not explain why
such a standard is appropriate in this context alone.
\156\ Id.
---------------------------------------------------------------------------
Second, although the proposed rules would require schools to use
the ``clear and convincing'' standard for sexual harassment
investigations if they use it for any other student or employee
misconduct investigations with the same maximum sanction, \157\ and
would require that it be used in student harassment investigations if
it is used in any employee harassment investigations, the proposed
rules would not prohibit schools from using the clear and convincing
standard in sexual harassment proceedings even if they use a lower
proof standard for all other student conduct violations. \158\ School
leaders agree that requiring different standards for sexual misconduct
as opposed to other misconduct is inequitable.
\157\ Proposed Sec. 106.45(b)(4)(i).
\158\ See A Sharp Backward Turn, supra note 83 (``It is a one-way
ratchet.'').
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Further, many school employees have bargained for contracts that
require using a more demanding standard of evidence than the
preponderance standard for employee misconduct investigations. \159\
The proposed rules would force those schools to either (1) impose the
same evidentiary for all cases of misconduct that carry the same
maximum sanction as Title IX proceedings \160\ or (2) maintain the
clear and convincing evidence standard for only employee misconduct and
student sexual misconduct proceedings. The latter choice would leave
schools vulnerable to liability for sex discrimination, as schools
cannot defend specifically disfavoring sexual harassment
investigations, which is a form of sex discrimination, by pointing to
collective bargaining agreements or other contractual agreements for
employees that require a higher standard. \161\
\159\ See id. (clear and convincing evidence is ``the standard the
[American Association of University Professors] has urged on colleges
and universities for faculty discipline and which some unionized
institutions have incorporated in collective bargaining agreements with
institutions'').
\160\ Although the Department claims that it wants to give schools
``flexibility'' in choosing their standard of proof,160 Proposed Sec.
106.45(b)(4)(i) would effectively force schools to use ``clear and
convincing evidence'' for student sexual harassment investigations if
``clear and convincing evidence'' is used by that school in employee
sexual harassment investigations. Given that most schools already use
the preponderance standard in student Title IX proceedings, many of
them would be forced to change their procedures--hardly the
``flexibility'' that the Department claims it wishes to provide.
\161\ See 34 C.F.R. Sec. 106.51 (``A recipient shall not enter
into a contractual or other relationship which directly or indirectly
has the effect of subjecting employees or students to discrimination .
. . .).
---------------------------------------------------------------------------
e. THE DEPARTMENT'S PROPOSED RULES WOULD CREATE UNFAIR GRIEVANCE
PROCESSES
Current Title IX regulations require schools to ``adopt and publish
grievance procedures that provide for a prompt and equitable resolution
of student and employee complaints'' of sexual misconduct. \162\ The
proposed rules \163\ purports to require ``equitable'' processes as
well. However, the proposed rules are also riddled with language that
would require schools to conduct their grievance procedures in a
fundamentally inequitable way that favors respondents. In so doing, it
distorts the very fundamental notions of due process it claims to
protect.
\162\ 34 C.F.R. Sec. 106.8(b).
\163\ Proposed Sec. 106.8(c).
---------------------------------------------------------------------------
A 2018 report studying more than 1,000 reports of sexual misconduct
in institutions of higher education found that ``[f]ew incidents
reported to Title IX Coordinators resulted in a formal Title IX
complaint, and fewer still resulted in a finding of responsibility or
suspension/expulsion of the responsible student.'' \164\ Despite the
Department's unsubstantiated concern for respondents, the study found
that ``[t]he primary outcome of reports were victim services, not
perpetrator punishments.'' \165\ The Department's due process arguments
totally ignore the complainants who are still treated unfairly in
violation of Title IX and are often pushed out of schools from
inadequate and unfair responses to their reports.
\164\ Tara N. Richards, No Evidence of ``Weaponized Title IX''
Here: An Empirical Assessment of Sexual Misconduct Reporting, Case
Processing, and Outcomes, L. & HUMAN BEHAVIOR (2018), available at
http://dx.doi.org/10.1037/lhb0000316.
\165\ Id.
---------------------------------------------------------------------------
While the Department repeatedly cites the purported need to
increase protections of respondents' ``due process rights'' to justify
weakening Title IX protections for complainants, current Title IX
regulations already provide more rigorous due process protections than
are required under the Constitution. The Supreme Court has held that
students facing short-term suspensions from public schools \166\
require only ``some kind of'' ``oral or written notice'' and ``some
kind of hearing.'' \167\ The Court has explicitly said that a 10-day
suspension does not require ``the opportunity to secure counsel, to
confront and cross-examine witnesses supporting the charge, or to call
his own witnesses to verify his version of the incident.'' \168\
However, the proposed rule's flat prohibition on reliance on testimony
that is not subject to cross-examination \169\ would force survivors to
a ``Hobson's choice'' between being revictimized by their assailant's
advisor or having their testimony completely disregarded, and would
prohibit schools from simply ``factoring in the victim's level of
participation in [its] assessment of witness credibility.'' \170\ It
would also make no allowance for the unavailability of a witness and
would not allow any reliance at all on previous statements, regardless
of whether those statements have other indicia of reliability, such as
being made under oath or against a party's own interest. This would
require schools to disregard relevant evidence in a variety of
situations in a manner that could pose harms to both parties and would
hinder the school's ability to ensure that their findings concerning
responsibility are not erroneous.
\166\ Constitutional due process requirements do not apply to
private institutions.
\167\ Goss v. Lopez, 419 U.S. 565, 566, 579 (1975).
\168\ Id. at 583. See also Gomes v. Univ. of Maine Sys., 365 F.
Supp. 2d 6, 23 (D. Me. 2005); B.S. v. Bd. of Sch. Trs., 255 F. Supp. 2d
891, 899 (N.D. Ind. 2003); Coplin v. Conejo Valley Unified Sch. Dist.,
903 F. Supp. 1377, 1383 (C.D. Cal. 1995); Fellheimer v. Middlebury
Coll., 869 F. Supp. 238, 247 (D. Vt. 1994).
\169\ See proposed Sec. 106.45(b)(3)(vii) (``If a party or
witness does not submit to cross-examination at the hearing, the
decision-maker must not rely on any statement of that party or witness
in reaching a determination regarding responsibility.'').
\170\ Liberty University Letter, supra note 84 at 5.
---------------------------------------------------------------------------
Under the proposed rules, \171\ schools would be required to
presume that the reported harassment did not occur, which would ensure
partiality to the respondent. This presumption would also exacerbate
the rape myth upon which many of the proposed rules are based--namely,
the myth that women and girls often lie about sexual assault. \172\ The
presumption of innocence is a criminal law principle, inappropriately
imported into this context. \173\ Criminal defendants are presumed
innocent until proven guilty because their very liberty is at stake:
criminal defendants go to prison if they are found guilty. There is no
such principle in civil proceedings generally or civil rights
proceedings specifically.
\171\ Proposed Sec. 106.45(b)(1)(iv).
\172\ Indeed, the data shows that men and boys are far more likely
to be victims of sexual assault than to be falsely accused of it. See,
e.g., Males Are More Likely to Suffer Sexual Assault, supra note 31.
\173\ See also the Department's reference to ``inculpatory and
exculpatory evidence'' (proposed Sec. 106.45(b)(1)(ii)), the
Department's assertion that ``guilt [should] not [be] predetermined''
(83 Fed. Reg. at 61464), and Secretary DeVos's discussion of the
``presumption of innocence'' (Elisabeth DeVos, Betsy DeVos: It's time
we balance the scales of justice in our schools, WASH. POST (Nov. 20,
2018), https://www.washingtonpost.com/opinions/betsey-devos-its-time-
we-balance-the-scales-of-justice-in-our-schools/2018/11/20/8dc59348-
ecd6-11e8-9236-bb94154151d2--story.html.
---------------------------------------------------------------------------
The proposed non-responsibility presumption is inconsistent with
the Department's own explanation of why it is proposed. The Department
explains that the requirement ``is added to ensure impartiality by the
recipient until a determination is made,'' but requiring a presumption
against the complainant's account that harassment occurred is anything
but impartial. In fact, the presumption ensures partiality to the named
harasser, particularly because officials in this Administration have
spread false narratives about survivors and other harassment victims
being untruthful and about the ``pendulum swinging too far'' in school
grievance proceedings against named harassers. This undoubtedly will
influence schools to conclude this proposed rule means that a higher
burden should be placed on complainants. The presumption of non-
responsibility may also discourage schools from providing crucial
supportive measures to complainants, in order to avoid being perceived
as punishing respondents. \174\ This proposed rule \175\ would also
only encourage schools to ignore or punish historically marginalized
groups that report sexual harassment for ``lying'' about it. \176\
\174\ See Michael C. Dorf, What Does a Presumption of Non-
Responsibility Mean in a Civil Context, DORF ON LAW (Nov. 28, 2018),
https://dorfonlaw.org/2018/11/what-does-presumption-of-non.html.
\175\ Proposed Sec. 106.45(b)(1)(iv).
\176\ See, e.g., Males Are More Likely to Suffer Sexual Assault,
supra note 31.
---------------------------------------------------------------------------
Finally, the changes to Title IX enforcement that ED proposes must
be considered against the backdrop of underreporting and a pervasive
culture in which those who do report sexual harassment, including
sexual assault, are likely to be blamed and disbelieved. Unfortunately,
and as explained in great detail throughout this comment, rather than
seeking to remedy that culture, ED's proposed rule reinforces false and
harmful stereotypes about those who experience sexual harassment and
proposes rules that would further discourage reporting and make it
harder for schools to adequately respond to complaints.
VI. CAMPUS RESPONSES TO SEXUAL ASSAULT SHOULD BE CONSISTENT WITH THE
CLERY ACT
A number of the Department's proposed rules are inconsistent with
the Clery Act, which the Department also enforces, and which also
addresses the obligation of institutions of higher education to respond
to sexual assault and other behaviors that may constitute sexual
harassment, including dating violence, domestic violence, and stalking.
First, the proposed rules prohibiting schools from investigating off-
campus and online sexual harassment conflict with Clery's notice and
reporting requirements. The Clery Act requires institutions of higher
education to notify all students who report sexual assault, stalking,
dating violence, and domestic violence of their rights, regardless of
``whether the offense occurred on or off campus.'' \177\ The Clery Act
also requires institutions of higher education to report all sexual
assault, stalking, dating violence, and domestic violence that occur on
``Clery geography,'' which includes all property controlled by a
school-recognized student organization (such as an off-campus
fraternity); nearby ``public property''; and ``areas within the patrol
jurisdiction of the campus police or the campus security department.''
\178\ The proposed rules would undermine Clery's mandate and create a
perverse system in which schools would be required to report instances
of sexual assault that occur off-campus to the Department, yet would
also be required by the Department to dismiss these complaints instead
of investigating them.
\177\ 20 U.S.C. Sec. 1092(f)(8)(C).
\178\ 20 U.S.C. Sec. 1092(f)(6)(iii); 20 U.S.C Sec.
1092(f)(6)(iv)); 34 C.F.R. Sec. 668.46(a)).
---------------------------------------------------------------------------
Second, the Department's definition of ``supportive measures'' is
inconsistent with Clery, which requires institutions of higher
education to provide ``accommodations'' and ``protective measures'' if
``reasonably available'' to students who report sexual assault, dating
violence, domestic violence, and stalking. \179\ The Clery Act does not
prohibit accommodations or protective measures that are ``punitive,''
``disciplinary,'' or ``unreasonably burden[] the other party.'' Third,
the proposed rules' unequal appeal rights conflict with the preamble to
the Department's Clery rules stating that institutions of higher
education are required to provide ``an equal right to appeal if appeals
are available,'' which would necessarily include the right to appeal a
sanction. \180\
\179\ 20 U.S.C. Sec. 1092(f)(8)(B)(vii); 34 C.F.R. Sec.
668.46(b)(11)(v).
\180\ U.S. Dep't of Educ.; Violence Against Women Act; Final Rule,
79 Fed. Reg. at 62752, 62778 (Oct. 20, 2014) (codified at 36 C.F.R. Pt.
668), https://www.gpo.gov/fdsys/pkg/FR-2014-10-20/pdf/2014-24284.pdf.
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Finally, the proposed rules' indefinite timeframe for
investigations conflicts with Clery's mandate that investigations be
prompt. \181\ And the many proposed rules discussed above that tilt
investigation procedures in favor of the respondent are anything but
fair and impartial.
\181\ 20 U.S.C. Sec. 1092(f)(8)(b)(iv)(I)(aa).
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Although the Department acknowledges that Title IX and the Clery
Act's ``jurisdictional schemes--may overlap in certain situations,''
\182\ it fails to explain how institutions of higher education should
resolve the conflicts between two different sets of rules when
addressing sexual harassment. These different sets of rules would
likely create widespread confusion for schools.
\182\ 83 Fed. Reg. at 61468.
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With careful consideration of the needs of students to be able to
learn, thrive, and feel safe on campus, the procedures required to make
campus processes fair and equitable to all parties, and the various
ways that schools can appropriately respond to campus sexual assault
that takes into account their student body, size, resources, culture,
location, and state and local requirements, reauthorization of the
Higher Education Act should reaffirm the principles of Title IX and
Clery to ensure that campuses everywhere are safe places for students.
______
[summary statement of fatima goss graves]
While we have made major strides to address campus sexual assault
over the past few years, too many colleges and universities still fail
to make appropriate efforts to support survivors' opportunities to
learn in the wake of sexual violence. Any reauthorization of the Higher
Education Act should take this into account, as well as the principles
and requirements of the Clery Act and Title IX, which already require
schools to adopt and enforce procedures to address sexual assault that
is prompt, equitable, and impartial. Through prevention and awareness
programs for incoming students and employees and addressing sexual
harassment, under these laws, schools have been charged with addressing
behaviors leading up to and including sexual assault, before they cause
greater harm to students' education.
Campus sexual assault is pervasive, underreported, and survivors
are still being punished by their schools when they report: Students in
college experience high rates of sexual harassment and sexual assault.
During college, 62 percent of women and 61 percent of men experience
sexual harassment, and more than one in five women and nearly one in 18
men are sexually assaulted. Nearly one in four transgender and gender-
nonconforming students are sexually assaulted during college.
Unfortunately, campus sexual assault is still consistently and vastly
underreported and when students do report campus sexual assault, they
are often ignored and sometimes even punished by their schools.
Campus processes need to be fair to all students: Schools must take
effective and immediate action when responding to sexual assault and
other forms of harassment that school employees know about or
reasonably should know about. When schools respond, complainants must
be afforded non-punitive interim measures to preserve and restore
access to educational programs, and investigations must be equitable
and not create barriers to reporting. This means that live-cross
examination should not be allowed as it is an unnecessary measure that
would deter reporting of campus sexual assault. Campuses should also
not allow mediation to resolve sexual assault complaints, must not
consider irrelevant or prejudicial evidence, and must provide parties
with remedies to preserve or restore access to education. Campuses must
also have equitable appeal rights and must prohibit retaliation against
parties and witnesses.
Unfortunately, the Department of Education (ED) recently proposed
changes to Title IX that, if finalized, would force schools to ignore
sexual harassment and create unfair grievance processes. ED's proposed
rules would only discourage reporting of sexual assault and improperly
prevent schools from providing a safe learning environment by mandating
dismissal of many complaints of sexual assault and harassment. By
imposing the deliberate indifference, schools would be allowed to do
virtually nothing in response to complaints of sexual assault and other
forms of sexual harassment. The proposed rules would also force schools
into using inappropriate and inequitable standards and create other
unfairness in the grievance process, including mandating live cross-
examination and allowing mediation for sexual assault.
______
The Chairman. Thank you, Ms. Goss Graves. Thank you for
coming today.
Ms. Gersen, glad you got here. Thank you for coming.
STATEMENT OF JEANNIE SUK GERSEN, JOHN H. WATSON, JR., PROFESSOR
OF LAW, HARVARD LAW SCHOOL, CAMBRIDGE, MA
Ms. Gersen. Chairman Alexander, Ranking Member Murray, and
Members of the Committee, thank you for the opportunity to
testify. I am Jeannie Suk Gersen. I am a professor of law at
Harvard Law School. I will address two questions of fairness
and campus sexual assault, discipline, how schools should
define the prohibited contact, and what elements are essential
to a fair process of investigation and adjudication.
First, discipline can only be fair if the definitions of
prohibited conduct are clear. We often use terms like sexual
harassment and sexual assault, but they mean so many different
things. They have their criminal definition, civil definitions,
colloquial uses, and often it is very confusing. Sometimes
schools adopt over broad definitions because what they want to
do is to communicate to the student body the aspirations and
desired norms of the community. But for the purpose of campus
discipline, some of these very broad definitions are improper.
Sometimes they cover too much and make accusations that arise
under these rules seem arbitrary, and that is unfair to all
parties, both complainants and respondents, and it harms
legitimacy of efforts to address the harm of sexual assault.
The Federal Government should provide a basic definition
that anchors schools to the definition of hostile environments
sexual harassment that the Supreme Court has provided in
Meritor Savings Bank v. Vinson. That is, unwelcome conduct of a
sexual nature that is sufficiently severe or pervasive that it
impairs a person's access to a protected activity. Here we are
talking about education. This is broader than the definition
that is proposed in the current Education Department's Title IX
rules, and it is narrower than many schools' current
definitions of sexual harassment. Sexual harassment, of course,
includes sexual assault but the term sexual assault refers to
many different kinds of standards, and its use causes great
ambiguity, and it should defined.
The Federal Government should provide a definition of
sexual assault to guide schools, and they in turn will give
schools clear and fair notice about the line between prohibited
conduct and permitted conduct. It should set expectations that
are administrable, realistic, and tethered to a person's access
to equal educational opportunity, as Title IX requires. I now
turn to disciplinary procedures, the procedures used by schools
to respond to allegations that sex discrimination has occurred.
Campus discipline is not criminal justice, but the basic
elements of fair process must be present to ensure integrity,
accuracy, and lack of bias. Both the complainant and the
accused must be treated equally and fairly. The elements of
fair process in this context should include the following basic
requirements.
First, notice. Parties have to be provided the written
complaint and informed of all of the factual basis of the
complaint. Evidence. Parties should be given full and fair
access to all of the evidence gathered that is directly related
to the allegation, and also to the identities of the witnesses
and all of their statements. There should be neutral and
independent decisionmakers. Schools must separate the functions
of the investigator, the adjudicator, and the appellant body,
rather than combining all of those roles into one, or any two
of them into one person.
There should be a live hearing and an opportunity for the
parties to be heard before the decisionmaker. The live hearing
need not involve direct cross-examination, but there should be
a meaningful opportunity for each side to pose questions to the
other side or to witnesses, and that can be done in a variety
of ways. One of them is to pass questions to a neutral
decisionmaker who will then post the questions to the people
who are testifying, and then have opportunities for some
reasonable amount of follow-up questions.
There should be a presumption of innocence and any accused
individual should have a presumption of innocence on any kind
of accusation whether it is a sexual harassment accusation,
racial harassment, or any other kind of accusation. The
standard of evidence should be equalized among sexual and non-
sexual accusations. So, if you use one standard for racial
harassment, it should be the same standard for sexual
harassment. And finally, there should be some opportunity for
informal resolution of complaints. Whether it is through
restorative justice or mediation, there should be an option
that schools can offer for people who want to have an informal
resolution rather than a formal one.
In closing, I would like to emphasize that the two
portions, the clearly defining prohibited conduct and a fair
process to investigate complaints, are very closely related. No
matter how unambiguously conduct is defined, no one can have
faith in a process that does not use fair procedures to
investigate complaints. And even the fairest adjudicatory
procedures cannot remedy the basic injustice of ill-defined,
vague, and over broad, or under inclusive categories of
conduct.
I want to close by thanking you, and I look forward to your
questions.
[The prepared statement of Ms. Gersen follows:]
prepared statement of jeannie suk gersen
Chairman Alexander, Ranking Member Murray, and Members of the
Committee, I am Jeannie Suk Gersen, the John H. Watson, Jr. Professor
of Law at Harvard Law School. I have taught courses on Criminal Law,
Criminal Adjudication, Constitutional Law, and Regulating Sex on
Campus. My research and writing have considered the problems of
equality and fairness in legal and institutional responses to sexual
assault and harassment, including in the context of Title IX and campus
discipline. \1\ As an attorney, I have represented multiple students
and faculty who have been parties in campus cases about sexual assault,
sexual harassment, and sex discrimination. I was a signatory to the
statement of twenty-eight Harvard Law School professors who, in October
2014, criticized Harvard University's then newly adopted sexual
misconduct policy as ``unfairly staked against the accused,'' and ``in
no way required by Title IX law or regulation.'' \2\ I serve on the
American Law Institute's Project on the Model Penal Code: Sexual
Assault and Related Offenses, as an Advisor, and on the organization's
Project on Sexual and Gender-Based Misconduct on Campus: Procedural
Frameworks and Analysis, as part of the Members' Consultative Group.
\1\ See, e.g., Jacob E. Gersen & Jeannie Suk, The Sex Bureaucracy,
104 Cal. L. Rev. 881 (2016), adapted in Jacob Gersen & Jeannie Suk
Gersen, The College Sex Bureaucracy, Chron. Higher Educ., Jan. 17,
2017; Jeannie Suk Gersen, The Socratic Method in the Age of Trauma, 130
Harv. L. Rev. 2320 (2017); Jacob E. Gersen & Jeannie Suk, Timing of
Consent, in The Timing of Lawmaking 149 (Frank Fagan & Saul Levmore
eds., 2017). I have also written the following analyses on campus
sexual misconduct discipline, in The New Yorker: Assessing Betsy
DeVos's Proposed Rules on Title IX and Sexual Assault, Feb. 1, 2019,
https://www.newyorker.com/news/our-columnists/assessing-betsy-devos-
proposed-rules-on-title-ix-and-sexual-assault; Deborah Ramirez's
Allegation Against Brett Kavanaugh Raises Classic Questions of Campus
Assault Cases, Sept. 25, 2018, https://www.newyorker.com/news/our-
columnists/deborah-ramirezs-allegation-against-brett-kavanaugh-raises-
classic-questions-of-campus-assault-cases; The Transformation of Sexual
Harassment Law Will Be Double-Faced, Dec. 20, 2017, https://
www.newyorker.com/news/news-desk/the-transformation-of-sexual-
harassment-law-will-be-double-faced; Betsy DeVos, Title IX, and the
``Both Sides'' Approach to Sexual Assault, Sept. 8, 2017, https://
www.newyorker.com/news/news-desk/betsy-devos-title-ix-and-the-both-
sides-approach-to-sexual-assault; The Trump administration's Fraught
Attempt to Address Campus Sexual Assault, July 15, 2017, https://
www.newyorker.com/news/news-desk/the-trump-administrations-fraught-
attempt-to-address-campus-sexual-assault; College Students Go To Court
Over Sexual Assault, Aug. 5, 2016, https://www.newyorker.com/news/news-
desk/colleges-go-to-court-over-sexual-assault.
\2\ Elizabeth Bartholet et al., Rethink Harvard's Sexual
Harassment Policy, Bos. Globe, Oct. 15, 2014, https://
www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-
harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html.
---------------------------------------------------------------------------
Thank you for the opportunity to testify about the response to
sexual assault on college campuses. In addition to my own research, my
testimony today draws on past public comments, submitted to the
Department of Education, that I co-authored with my Harvard colleagues,
Elizabeth Bartholet, Nancy Gertner, and Janet Halley, as feminist law
professors who have been concerned about fairness in campus discipline
processes. \3\
\3\ Elizabeth Bartholet, Nancy Gertner, Janet Halley & Jeannie Suk
Gersen, Fairness for All Students Under Title IX, Aug. 21, 2017,
https://dash.harvard.edu/bitstream/handle/1/33789434/Fairness--20for--
20All--20Students.pdf?sequence=1; Jeannie Suk Gersen, Nancy Gertner &
Janet Halley, Comment on Proposed Title IX Rulemaking, Jan. 30, 2019,
https://perma.cc/3F9K-PZSB.
---------------------------------------------------------------------------
In the past decade, we have seen many colleges and universities
recognize their past approaches to sexual misconduct to be inadequate,
and undertake to adopt new policies and procedures, inspired by
pressure from the federal government. In the same period, we have also
seen the rise of an unfortunately common notion that effectively
addressing sexual assault and advocating for due process are
politically opposed sides of a debate. I appreciate that a premise of
this hearing is to reject that false choice in the endeavor to
understand what fairness for all parties would look like in rigorous
and legitimate measures to address sexual assault.
The two broad questions in campus sexual assault discipline are how
prohibited conduct should be defined, and what elements are essential
to a fair process of investigation and adjudication. I will address
them in turn.
Definitions of Prohibited Sexual Conduct
Title IX prohibits schools that receive federal funding from
discriminating on the basis of sex, and in the past decades, it has
become clear in court decisions and agency rules that sex
discrimination includes sexual harassment, which in turn includes
sexual assault. Schools therefore understand that they are legally
obligated to take measures to address, remedy, and prevent sex
discrimination, sexual harassment, and sexual assault in their
communities. But they often face uncertainty and contention about the
exact contours of the conduct that they ought to prohibit, both as a
matter of their responsibilities under federal law, and as a matter of
values and norms they would wish to promote in their communities. The
problem of definitions is especially challenging at a time when sexual
norms and ideas of acceptable behavior are rapidly changing, especially
among young people who are the beating heart of college campuses.
Discipline that affects any party's access to education can be fair
only if definitions of prohibited conduct are clear, understandable,
and not excessively under-inclusive or over-inclusive. Standard legal
definitions of sexual harassment include both quid-pro-quo sexual
harassment and hostile-environment sexual harassment. The standard
definition of hostile-environment sexual harassment comes from the
Supreme Court in Meritor Savings Bank v. Vinson: unwelcome conduct of a
sexual nature that is sufficiently severe or pervasive that it impairs
a person's access to a protected activity to a protected activity to a
protected activity. \4\ According to the Court, the elements of a
hostile environment must not only subjectively experienced but also
objectively reasonable. The definition allows consideration of the
complainant's subjective experience, while also providing a
reasonableness check against arbitrary accusations. The definition is
clear, and when used in the context o schools, has a nexus to equal
access to educational opportunity.
\4\ 477 U.S. 57, 67 (1986) (``For sexual harassment to be
actionable, it must be sufficiently severe or pervasive `to alter the
conditions of [the victim's] employment and create an abusive working
environment.''').
---------------------------------------------------------------------------
But some schools currently use overbroad definitions of prohibited
conduct that go far beyond legal definitions of sexual harassment. They
may simply prohibit unwelcome conduct, even if it does not create a
hostile environment, and even if a reasonable person would not have
reason to know that the conduct was unwelcome. At many schools, sexual
conduct is considered unwelcome or non-consensual if either party did
not provide verbal consent to each act within a sexual encounter. Even
those who are proponents of verbal affirmative consent standards must
admit that, realistically, the definition effectively renders most
subjectively and mutually desired sex that occurs a technical violation
of the campus rules. While perhaps appealing as an aspirational norm or
a way to avoid misunderstanding during sex, verbal affirmative consent
definitions are overbroad for distinct purpose of campus discipline.
They classify almost all sexual conduct as a violation of the rules.
Therefore they are unhelpful for clearly distinguishing wrongful
conduct from conduct that is mutually wanted and voluntary on both
sides. If almost everyone is technically violating an overly broad rule
that covers most sex that is voluntarily engaged in, the accusations
that arise under the rule may be arbitrary. That is unfair to all
parties and erodes the legitimacy of efforts to combat sexual assault.
Federal efforts to guide schools in defining prohibited conduct
should be anchored to the Supreme Court's definition of hostile-
environment sexual harassment in Meritor. The definition should
prohibit unwelcome conduct of a sexual nature that is so severe or
pervasive as to impair equal access to education, and it should require
that hostile environment claims be objectively reasonable.
The Department of Education's current Proposed Title IX Rule,
however, defines hostile-environment sexual harassment more narrowly,
as unwelcome conduct that is ``so severe, pervasive, or objectively
offensive that it effectively denies a person equal access to [a
school's] educational program or activity.'' \5\ That definition is too
narrow and under-inclusive, because it would not cover conduct that is
severe but not pervasive (such as a single act of rape), or pervasive
but not severe (such as multiple, repeated, unwelcome comments on
someone's appearance). Both of these types of conduct are important for
schools to address in order to preserve equal access to education.
\5\ This language is from the Title IX case, Davis v. Monroe
County Board of Education, 526 U.S. 629, 650-2 (1999), in which the
Supreme Court created a narrowing definition of sexual harassment for
the specific purpose of limiting private parties' access to civil
lawsuits against school boards for money damages. Citing Meritor, the
Court in Davis recognized that the standard legal definition of sexual
harassment is broader than the one it was adopting for that specific
purpose. Id. at 651.
---------------------------------------------------------------------------
While hostile-environment sexual harassment is supposed to
encompass sexual assault, the term ``sexual assault'' refers to so many
different and conflicting kinds of criminal, civil, and colloquial
standards that its use currently causes tremendous ambiguity and
uncertainty about what is prohibited and permitted. Someone may use
``sexual assault'' to refer to an unwelcome touching of an arm or a
shoulder, while another may mean a digital penetration without
affirmative verbal permission, and yet another may believe it means
nothing short of a forcible act of rape. Similarly, the term
``consent'' can mean anything from explicit verbal permission for each
act within a sexual encounter, to willing acquiescence, to absence of
physical resistance.
It would be beneficial for the federal government to provide a
definition of sexual assault that guides schools for the purposes of
campus discipline, so they may give clear and fair notice to all
parties about the line between prohibited and permitted sexual
activity. I propose the following definition, as it includes the most
important elements:
Sexual assault is the penetration or touching of another's
genitalia, buttocks, anus, breasts, or mouth without consent.
A person acts without consent when, in the context of all the
circumstances, he or she should reasonably be aware of a
substantial risk that the other person is not voluntarily and
willingly engaging in the conduct at the time of the conduct.
This definition clearly specifies the relevant body parts as
sexual, and what constitutes consent in a way that accords with most
legal and conventional understandings of sexually wrongful conduct. It
gives clear notice to parties about what conduct is prohibited, it sets
realistic expectations, and it is administrable.
The federal government should define prohibited sexual conduct for
the purpose of campus discipline in a manner that is grounded in law
and tethered to access to educational opportunity. In sum, the
prohibited conduct consists of sexual harassment of three kinds: quid-
pro-quo sexual harassment; hostile-environment sexual harassment
(defined in keeping with the Supreme Court's definition in Meritor);
and sexual assault (defined as proposed above) that effectively denies
a person equal access to education.
A school's responsibilities to address the prohibited conduct
should be tied to the impact of the conduct on equal access to the
school's educational programs and activities. That means that its
responsibilities to address a violation should extend to off-campus
conduct that is not connected to any official program or activity of
the school, if the effects of the violation produce a discriminatory
impact on a victim's access to education, such as when both the victim
and the perpetrator are both enrolled at the school. The focus should
be on access to education, and that turns on concrete impairment to
educational access due to the discriminatory conduct of the school's
students, staff, or faculty.
Finally, schools should be considered in violation of Title IX if
they behave unreasonably--that is, when they should have known of a
substantial risk of sexual misconduct and failed to act to address it.
The Department of Education's current Proposed Title IX Rule instead
would hold schools responsible only if they knew of sexual-misconduct
allegations and were deliberately indifferent to them. That standard
sets an inappropriately low expectation for schools. It should be
enough to show that a school reacted unreasonably.
Discipline Procedures for Sexual Misconduct
While sexual misconduct on campus may sometimes overlap with
criminal conduct, campus disciplinary processes are not criminal
processes. While serious, the stakes, deprivation of access to
education rather than criminal penalties, are different and less
severe. Criminal investigation and adjudication process with all of its
protections of defendants' rights are not the precise benchmark for
campus discipline processes. But basic elements of fair process must be
present, to ensure integrity, accuracy, and lack of bias. When a
complaint of sexual misconduct is made, both the complainant and the
accused must be treated fairly and equally in the process of
investigation and adjudication of the complaint. The elements of fair
process in this context should include the following requirements:
Notice. Parties should be provided the written complaint and
informed of the factual basis of the complaint.
Evidence. Parties should be given equal and full access to all of
the evidence gathered that is directly related to the allegations, and
to the identities and statements of all the witnesses.
Division of Roles Among Neutral and Independent Decisionmakers.
Schools should separate the functions of investigator, adjudicator, and
appellate body, rather than combining any of those roles.
Decisionmakers at different stages of the process should be independent
of each other and not be invested in reinforcing the outcomes of
previous stages. The separation provides accountability and checks, and
discourages bias and error. The role of advocate or counseling, for
complainant or respondent, should be divided completely from the roles
of investigation and adjudication of the complaint. The role of Title
IX Coordinator should be limited to coordinating the process and
separated from the neutral and independent investigation and
adjudication. The Title IX Coordinator should not be placed in the
roles of conducting investigations, making factual findings, deciding
on responsibility, assigns sanctions, or hearing appeals.
Live Hearing. Schools should provide a live hearing before the
decisionmaker, during which the parties can have the opportunity to be
heard, hear testimony of witnesses in real time, and offer amendments,
interpretations, and challenges to the evidence and to the witnesses'
accounts.
Counsel. Parties should be permitted to bring counsel to any
interviews and hearings, and counsel should be allowed to speak to
assert the parties' rights.
Asking Questions. Parties should be allowed to ask questions of
other parties and witnesses in a meaningful way. This does not require
cross-examination. It is sufficient, perhaps even optimal, to have
parties instead submit questions to the presiding decision-maker, who
should then ask all questions submitted unless they are irrelevant,
excluded by a rule of evidence clearly adopted in advance, harassing,
or duplicative. This submitted-questions procedure, if administered
fairly to serve the truth-seeking function, provides ample opportunity
for parties to probe each other's and witnesses' credibility and
consistency such that direct cross-examination is not needed.
Presumption of Innocence. Any accused individual in a campus
disciplinary matter concerning any kind of allegation should have a
presumption of innocence. The rise of ``trauma-informed training'' for
investigators and adjudicators can lead to biased process insofar as it
induces a working presumption that problems in the evidence such as
inconsistencies in the complainant's account supports the conclusion
that the complainant has been traumatized by the accused party. This
circular approach to evaluating evidence is inconsistent with the
presumption of innocence and, more fundamentally, is incompatible with
basic fair process.
Burdens of Proof and of Production. The school should bear the
burdens of proof and of production, and should not place them on either
complainant or respondent.
Standard of Evidence. The ``preponderance of evidence'' standard is
now the commonly used standard of evidence in campus sexual misconduct
discipline, because it was described as mandatory under the Obama
administration's Title IX guidance. When combined with other fair
procedures that treat the parties equally and fairly, the preponderance
standard is a fair standard. Any higher evidentiary standard is tilted
in favor of the accused. But the higher ``clear and convincing
evidence'' standard is also plausibly appropriate and not unfair,
because it may reflect the possible seriousness of the sanction of the
accused. Schools should have discretion to use the preponderance or the
clear and convincing evidence standard, assuming that the other
surrounding processes are fair and equal. But if a school chooses
preponderance for sexual misconduct, it should adopt the same standard
for non-sexual misconduct as well, because there is no good
justification for using a lower or higher evidentiary standard for
sexual harassment than, for example, racial harassment.
Written Reports. Parties should be provided copies of written
reports that detail the evidence gathered by investigators and explain
the reasoning and conclusions reached by decisionmakers.
Informal Resolution Methods. Schools should be permitted to offer
mediation or restorative justice approaches to accusations of sexual
misconduct, in addition to the formal process of investigation and
adjudication. An exclusively disciplinary or punitive approach
needlessly deprives victims of options that they may believe will
benefit them in the pursuit of equal educational opportunity. Some
complainants desire a process focused on having the other party
understand the harm caused, but may not pursue a complaint if they know
that the only option is a full formal process leading to possibly
severe punishment for the respondent. Some respondents may be prepared
to confess, apologize, and take responsibility, but may be deterred
from recognizing their harmful actions, because the formal and
punitive-seeming framework pushes them to adopt an adversarial posture
of denial. If both parties wish to explore alternatives to formal
adjudication, schools should not be prohibited from providing the
option of a structured and guided means for parties to settle the
conflict, through an informal process that is less adversarial than the
formal investigation and adjudication process.
Racial Impact. The Department of Education's Office for Civil
Rights has acknowledged a serious risk of race discrimination in
general student discipline in elementary and secondary schools, noting
that African-American students ``are more than three times as likely as
their white peers'' to be expelled or suspended, and those substantial
racial disparities ``are not explained by more frequent or more serious
misbehavior by students of color.'' The race of the parties in sexual-
misconduct cases is not included in existing federal reporting
requirements, so the issue is difficult to study and understand.
Schools may interpret their obligations under student privacy rules as
preventing the release of such data, if they even compile such data.
But among administrators, lawyers, and faculty members involved in
sexual misconduct cases, stories and experiences of disproportionate
racial impact are common. It is important for colleges and universities
to study and address the potential for race discrimination in sexual-
assault allegations, affecting either respondents or complainants. That
risk must be transparently analyzed as part of the project of enforcing
sex discrimination law. And concerns about fair procedures that afford
equal treatment complainants and respondents as outlined in this
section are all the more important where there is a risk of racially
disproportionate impact. Schools should include questions about racial
and other demographic information in the sexual climate surveys they
administer to the student body. The federal government should promote
the rigorous gathering of knowledge about the racial impact, on both
complainants and respondents in the campus disciplinary process.
Thank you for the opportunity to discuss these issues with the
Committee.
______
[summary statement of jeannie suk gersen]
In my testimony I address two broad questions in campus sexual
assault discipline: how prohibited conduct should be defined, and what
elements are essential to a fair process of investigation and
adjudication.
Definitions of Prohibited Sexual Conduct
Discipline that affects any party's access to education can be fair
only if definitions of prohibited conduct are clear, understandable,
and not excessively under-inclusive or over-inclusive. Some schools
currently use overbroad definitions of prohibited conduct that are
unfair to all parties. Overly expansive definitions tend to undermine
efforts to combat sexual assault. Overly narrow definitions may be
under-inclusive of conduct that impairs access to education. The
federal government should define prohibited sexual conduct for the
purpose of campus discipline in a manner that is grounded in law,
particularly the Supreme Court's definition of hostile-environment
sexual harassment as unwelcome conduct of a sexual nature that is so
severe or pervasive that it impairs a person's access to the protected
activity, here, education. Schools' definitions of prohibited conduct
should always be tethered to the concrete impact of the conduct on
access to equal educational opportunity.
Discipline Procedures for Sexual Misconduct
For campus discipline to be legitimate, basic elements of fair
process must be present, to ensure integrity, accuracy, and lack of
bias. Both the complainant and the accused must be treated fairly and
equally in the process of investigation and adjudication of the
complaint. The most important elements of fair process include: giving
the parties notice of and information about the factual basis of the
complaint, and full access to evidence gathered; separation of the
functions of investigator, adjudicator, and appellate body, to insure
independence; separation between the Title IX coordinator and those
conducting the investigation, adjudication, or appeal, to insure
neutrality; a live hearings before the decisionmaker, during which the
parties can have the opportunity to be heard and hear testimony in real
time; permission to have counsel for parties attend interviews and
hearings; opportunity for parties to put questions to parties and
witnesses; a presumption of innocence; and the use of either a
preponderance of the evidence or a clear and convincing standard of
evidence.
______
The Chairman. Thank you, Ms. Gersen for being here today.
Ms. Meehan, welcome.
STATEMENT OF ANNE MEEHAN, DIRECTOR, GOVERNMENT AND PUBLIC
AFFAIRS, AMERICAN COUNCIL ON EDUCATION, WASHINGTON, DC
Ms. Meehan. Mr. Chairman, Ranking Member Murray, and
Members of the Committee, thank you for inviting me to speak
with you today. My name is Anne Meehan and I am Director of
Government Relations at the American Council on Education. I am
testifying here today on behalf of ACE and the higher education
associations listed at the end of my written testimony.
Campus sexual assault is one of the most important and
serious issues facing colleges and universities today. Federal
law requires colleges and universities to address sexual
assault on their campuses, and institutions take complying with
these and all applicable laws very seriously. Institutions are
committed to maintaining safe and supportive campus
environments that allow students to benefit from the widest
possible array of educational opportunities.
Unfortunately, campus sexual assault cases can be extremely
difficult to resolve. They may involve different accounts of
what happened, few if any witnesses, little or no physical
evidence, conduct and recollections impaired by alcohol or drug
use, and sometimes understandably, a time lapse between the
event and the filing of a report. The central issue often is
whether consent has been given, and this can be very difficult
to determine. For these and other reasons, law enforcement
authorities often decline to pursue these cases, but campuses
must address them through their disciplinary processes,
independent of whether criminal charges are filed.
In our efforts to address campus sexual assault, colleges
and universities have three overarching goals. First, we want
to support the survivor. Second, we want processes that are
fair to both parties. And third, while clarity of Federal
expectations is helpful, we also need flexibility to address
these difficult cases compassionately, and effectively, and in
a way that makes sense for a particular campus community.
Campus disciplinary processes vary significantly from
institution to institution. Based on, among other things, the
institution's mission, size, student population, resources, and
community values.
I provided examples of this in my written testimony, but
regardless of the specific campus disciplinary process used, it
must be fair. Both the Clery Act and Title IX require it. Clery
statute and regulation set out the basic requirements of a fair
process. For example, under Clery, campus disciplinary
processes must, one, be conducted by officials who received
training on sexual assault. Two, allow the parties to have an
advisor of their choosing present. Three, be conducted by
individuals who are free from conflicts of interest or biased.
And four, provide timely and equal access to any information
that will be used.
Fundamentally, we think the Clery fairness framework is a
good one, and one that works well across a variety of
institutions and campus disciplinary processes. As Congress
considers whether to build on this framework, please keep in
mind the five following observations. First, colleges and
universities are not courts nor should they be. Efforts to
impose court-like procedures and terminology are misguided and
likely to create unintended consequences. The recent Title IX
NPRM's requirement that all institutions provide a live hearing
with direct cross-examination by a party's advisor is one such
example. Second, campuses and their disciplinary processes are
diverse.
Highly prescriptive one-size-fits-all requirements may
undermine the goals of supporting survivors and being fair to
both parties. Congress should set guardrails for what a fair
process requires, and then provide flexibility for institutions
to meet these requirements in a way that makes sense for their
campus. Third, institutions are subject to a variety of Federal
and state laws on this topic, as well judicial decisions and
institutional policies. When adding new requirements to the
law, be mindful not to create overlapping, confusing, and
possibly conflicting obligations.
Fourth, preserve institutions' ability to address sexual
assault affecting their community, even if it is beyond what
they are required to address under law. For example, campuses
want and need to be able to address sexual assault even if it
occurs off-campus. And finally, as important as it is to ensure
fair disciplinary processes, we should not forget that our
ultimate goal is to prevent sexual assault from occurring in
the first place.
My written testimony contains examples of some of the
prevention work our campuses are doing. Additional Federal
support for these efforts would be welcomed.
Thank you for inviting me to testify. I would be happy to
answer any questions.
[The prepared statement of Ms. Meehan follows:]
prepared statement of anne meehan
Mr. Chairman, Senator Murray, and Members of the Committee, thank
you for inviting me to speak with you today. My name is Anne Meehan and
I am the Director of Government Relations at the American Council on
Education (ACE). ACE represents more than 1,700 public and private,
two- and four-year colleges and universities and related higher
education associations. I submit this testimony on behalf of ACE and
the higher education associations listed at the end of my testimony.
As Congress works to reauthorize the Higher Education Act, we
appreciate the Committee holding this hearing on addressing campus
sexual assault and ensuring student safety and rights. I have been
asked here today to talk about the variety of campus disciplinary
processes used by colleges and universities to respond to allegations
of sexual misconduct involving students, and ways to help ensure these
processes are fair to both the survivor and the accused. My comments
will focus on sexual assault between students because this has been an
important emphasis of institutions and policymakers in recent years.
Two federal laws--the Clery Act and Title IX--require colleges and
universities to address sexual assault on their campuses (Clery via
statute and regulations and Title IX via regulations and guidance).
Although different in scope, these laws also contain important
requirements for campus disciplinary processes used to address sexual
assault, including that these processes must be fair. Campuses take
complying with these, and all applicable laws, very seriously. In
addition to wanting to fulfill their legal obligations in this area,
colleges and universities want to do the right thing. College and
universities are committed to maintaining campus environments that are
safe, supportive, and responsive so all students can benefit from the
widest possible array of educational opportunities.
Unfortunately, campus sexual assault cases can be extremely
difficult to resolve. They may involve differing accounts about what
happened; few if any witnesses; little or no physical evidence; conduct
and recollections impaired by alcohol or drug use; and, perhaps,
understandably, a significant, but understandable, time lapse between
the event and the filing of a report. The central issue in most of
these cases is whether consent has been given, and this can be very
difficult to determine based on the evidence available. For these and
other reasons, law enforcement authorities often decline to pursue
these cases through the criminal justice system, although campuses need
to consider these situations in the context of their student conduct
codes and disciplinary processes, independent of whether criminal
charges are filed.
It is important to remember that while sexual assault is a serious
crime, colleges and universities are not courts. Campus disciplinary
processes are designed to determine whether an individual has violated
an institution's specific code of conduct--not whether someone is
guilty of a crime.
In addressing campus sexual assault, colleges and universities have
three overarching goals. First, we want to support the survivor.
Second, we want processes that are fair to both parties. And third,
while we appreciate clarity about what is expected of us, we also need
flexibility to address these difficult cases in a compassionate and
effective way for the individuals involved and for the campus
communities in which they arise. Today, our discussion will focus on
this second goal--ensuring a fair process for both parties.
Finally, when considering potential legislation on this topic, the
long view is important. Sadly, the scourge of sexual assault is
unlikely to be eradicated in this country or on our campuses anytime
soon, although colleges and universities continue to strive toward that
goal. Campuses will continue to adapt, evolve and improve their
prevention and awareness programs, as well as their support services
and disciplinary processes to address sexual assault when it does
occur. We encourage policymakers to be cautious about locking
requirements into statute that could limit institutions' ability to
incorporate the latest understandings, research, and state of the art
techniques designed to address this serious problem.
Campus Disciplinary Processes Vary
It is critical to understand that campus disciplinary processes
vary significantly from institution to institution, based on, among
other things, the institution's mission, student populations, its
culture, resources, and staffing of the campus. Although it can be
difficult to generalize across more than 4,000 degree-granting
institutions, processes generally fall into either a ``hearing'' or
``non-hearing'' model, with significant variation within these models,
between different institutions, and even across units within the same
institution.
Under a common version of a non-hearing model, a complainant
reports sexual misconduct and indicates he or she would like to begin a
formal disciplinary process. A trained sexual assault investigator is
assigned to conduct a preliminary investigation to determine whether
the allegations, if true, would be sufficient to constitute a violation
of campus conduct standards. Assuming there is a sufficient basis, the
investigator then notifies the complainant and respondent of the intent
to proceed with a formal investigation and sets up time to interview
the parties. The parties are interviewed, often multiple times, and are
given the opportunity to identify evidence to pursue, witnesses to
interview, and questions to ask the other party, in addition to
information independently identified by the investigator. In deciding
what questions to ask, the investigator relies not only upon clarifying
questions suggested by the parties, but also on their own experience
and prerogative to inquire thoroughly and seek clarification of
inconsistencies, to promote fairness to both parties. This approach can
effectively replicate the cross-examination approach used in some
hearing-based models.
The investigator then prepares a draft report that contains the
parties' statement, witness statements and a summary of any other
evidence gathered during the investigation. Both parties would be
presented with the draft, given an opportunity to respond, challenge
any evidence, suggest additional areas for investigation, or provide
new evidence now available. After incorporating this feedback, the
investigator finalizes the investigative report. If additional evidence
has been gathered, the parties are again given an opportunity to
provide a response, which is added to the final report, and the final
report is then submitted to the decisionmaker.
The decisionmaker may be a single individual or a panel. In a non-
hearing model, the decision maker reviews the report and determines
whether the evidence supports a finding of responsibility. The decision
maker may also direct the investigator to go back and collect
additional information regarding an issue before making a final
decision. The decision maker may agree or disagree with the
investigator's conclusions or weighing of the evidence--however, the
decisionmaker's finding must be based on the information in the report
and parties' responses.
Among non-hearing models, one model that has been the subject of
recent discussion is the so-called ``single-investigator'' model. Most
typically, this term is used to refer to a model where one individual,
usually highly trained in investigating sexual assault cases, both
investigates the matter and decides whether a violation of campus
conduct rules has occurred.
Like non-hearing models, hearing models also come in many
variations. The investigative phase is similar to a non-hearing model.
However, at the conclusion of the investigation, the summary report,
investigative file, and responding statements of the parties will be
presented for review to a hearing officer or a hearing panel. (If the
facts are not in dispute, some institutions will allow the students to
mutually agree to opt for a summary disposition, instead of a full
hearing.) The information presented to the hearing panel will also be
presented to the parties with sufficient time for them to prepare, and
a hearing date will be set. At the hearing, the investigator often
presents an oral summary of the investigation and is available to
answer questions posed by the panel. The hearing panel will ask
questions of the parties and witnesses based on the information
collected during the investigation. While the parties may be in the
same room for the hearing, an option is often available to enable them
to be in separate rooms with one party permitted to watch the other
party on a live video feed. While some institutions do allow for direct
cross--examination by one party (or the party's representative) of the
other party and any other witnesses, many do not. Where direct cross is
not permitted, institutions often allow the parties to test the
credibility of the other party and any witnesses by submitting written
questions to a hearing panel, which reviews the questions to determine
their appropriateness, and then poses them directly to the party or
witness.
Regardless of the model used, after a finding of responsibility or
non-responsibility is made, institutional processes determine whether
an appeal is permitted, and the grounds on which a party may appeal.
When there is a finding of responsibility, institutions differ on
whether the same decision maker determines the sanction or whether
another campus official or panel determines the sanction.
``Fairness'' Requirements in Title IX and Clery
Title IX is a civil rights law. It says, ``No person . . . shall,
on the basis of sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance.'' While the
statute does not specifically mention either ``sexual assault'' or
``campus disciplinary processes,'' Title IX regulations, guidance, and
case law determine institutions' obligations. In November 2018, the
Department of Education proposed new regulations for Title IX, which
have proven controversial, generating more than 100,000 comments in
response. While there is much debate about what the final regulations
should entail, there are important Title IX obligations that are well-
settled and not in dispute. Among them is that sexual harassment, which
includes sexual assault, is a prohibited form of sex discrimination
under Title IX. When allegations of sexual assault arise, institutions
must take prompt action to eliminate the harassment, remedy its effect,
and prevent its recurrence. It is also well-accepted law that when
resolving allegations of sexual assault, campus disciplinary processes
must be ``prompt and equitable.''
The Clery Act is the part of the Higher Education Act designed
specifically to address campus safety issues--it requires institutions
to report crimes that occur on campus and certain related property and
it requires institutions to have a number of policies and practices
related to safety. Clery, through statute and regulation, also provides
a framework of requirements designed to ensure fairness in campus
disciplinary processes involving sexual assault. Clery requires, among
other things, that campus disciplinary processes must:
1. Provide for a ``prompt, fair and impartial investigation and
resolution.''
2. Be conducted by officials who receive annual training on
issues related to sexual assault and how to conduct an
investigation and hearing process that ``protects the safety of
victims and promotes accountability.''
3. Permit the complainant and the respondent to be accompanied
by an ``advisor of their choice'' during the institutional
disciplinary process, or any related meeting or proceeding.
4. Be completed within reasonably prompt timeframes designated
by an institution's policy, including a process that allows for
extension for good cause with written notice to the complainant
and respondent.
5. Be conducted in a manner consistent with institutional
polices and transparent to the parties.
6. Include timely notice of meetings at which the complainant
or respondent, or both, may be present.
7. Provide ``timely and equal access'' to ``any information
that will be used during informal and formal disciplinary
meetings and hearings.''
8. Be ``conducted by officials who do not have a conflict of
interest or bias'' against either party.
These requirements and others--the result of Violence Against Women
Act (VAWA) amendments enacted in 2013--provide fundamental building
blocks of what fair campus disciplinary processes should include. To
the extent campus disciplinary processes did not include these features
at the time of VAWA's passage (although most did), they have been
readily incorporated. These elements are consistent with institutions'
overarching goal of ensuring a fair process for both parties. They are
also sufficiently high level as to give campuses the flexibility to
meet these requirements in a way that makes sense for their
institution.
Given this existing framework, we do not believe that additional
changes in this area are necessary. However, if Congress feels the need
to do more, it could consider the following:
Some of the Clery requirements I mentioned are
embodied in regulation and not in statute. If they are of
fundamental importance to Congress, and Congress would like to
insulate them from change through a regulatory process,
Congress could consider incorporating them into the statutory
language. For example, the regulatory requirement for ``timely
and equal access'' to information that will be used during the
campus disciplinary process could be explicitly stated in
statute.
Congress could consider whether campuses should be
required to provide the parties notice of an intent to proceed
with a formal campus disciplinary process, and the allegation.
We believe most institutions already do this, but it could be
explicitly referenced in statute. If Congress wants to do this,
it should take care to ensure that the language is flexible to
accommodate cases where it is appropriate to do so. For
example, local police might ask the university to hold off
initiating a disciplinary process to avoid alerting the subject
of a criminal investigation. Similarly, the time when a victim
of dating/domestic violence comes forward to report is often
viewed as the most dangerous time for that individual--so there
would need to be a safety plan in place before notifying the
respondent of a formal disciplinary process.
Another element of a fair disciplinary process is
the ability to respond to evidence gathered in order to
challenge adverse information, and to test the credibility of a
party or witnesses. In speaking with member institutions,
campuses do provide this opportunity, both in hearing and non-
hearing disciplinary models. Congress could consider whether
there are ways to ensure campus disciplinary processes reflect
this principle, while again avoiding the pitfalls of overly-
prescriptive, one-size-fits-all requirements. While ACE would
be very concerned about a requirement that all institutions
provide for direct cross-examination in a live hearing setting,
flexible language that allows one party to propose questions to
be asked of the other party--through an investigator, or some
other process--could be considered and would be consistent with
many existing institutional practices.
General Observations for Policymakers
In determining whether these or other changes are necessary or
appropriate, we urge Congress to proceed cautiously, keeping the
following observations in mind:
1. Colleges and universities are not courts, nor should they
be. We do not have the resources, personnel, or expertise of
the criminal and civil justice system. We do not have subpoena
powers, rules of evidence, or the ability to hold an attorney
in contempt. Efforts that attempt to turn us into quasi-courts,
or to impose court-like procedures and terminology, are
misguided and likely to result in unintended consequences.
For example, the recent Title IX NPRM would require all
institutions to provide a live hearing with direct cross-
examination by an advisor of a party's choice. Colleges and
universities have grave concerns with this proposal, which
could undermine efforts to encourage survivors to come forward,
as well as efforts to be fair to both parties, turn our
disciplinary processes into courtrooms, and create a cottage
industry of legal advisors. The use of direct cross-
examination, and the exclusion of statements from any party who
is unwilling to be subject to direct cross, is likely to result
in a highly adversarial process where attorney advisors attempt
to break down the survivor, the accused, or witnesses to the
events--in an effort to have their statements excluded from
consideration. This proposal also raises equity concerns, when
one student has the financial resources to hire an expensive
and aggressive litigator, and the other student does not. If a
respondent is facing a possible parallel criminal proceeding, a
respondent's lawyer may advise the student not to participate
in a live hearing with direct cross-examination, even though
the respondent's lawyer would allow the student to participate
in non-live hearing process. If a live hearing is required, the
respondent's lack of participation is more likely to result in
a finding of responsibility.
There are many ways campuses allow parties to respond to
allegations, challenge evidence, seek clarification, and test
credibility of witnesses that do not involve a live hearing and
do not require direct cross-examination. There are many reasons
why a particular survivor or accused student might not
``present'' well in a live setting: cultural differences,
implicit bias, the effects of trauma or extreme stress, a low-
income student may not have the same level of support as a
wealthier student to prepare for a live hearing format,
differences in age and verbal skills of the participants, etc.
There may be a benefit to giving students additional time to
process a question and form their response outside of a live-
hearing format. An assumption that the search for the truth of
the matter in a disciplinary process can be achieved only
through live, face-to face observation of the parties under
direct cross-examination is a flawed one.
As another example, the NPRM, and some legislative proposals,
have inappropriately imported the phrase ``due process'' when
attempting to describe the need for fair processes for both
parties.
``Due process'' is a term most commonly associated with
protections provided by law enforcement and the judicial system
for criminal defendants where an accused individual's life or
liberty is at risk. Indeed, Black's Law Dictionary defines
``due process'' in the context of criminal law: ``Embodied in
the due process concept are the basic rights of a defendant in
criminal proceedings and the requisites for a fair trial.''
While public institutions are required to provide certain due
process protections under the Fourteenth Amendment to the U.S.
Constitution, private institutions are not, and the type and
amount of process required of public institutions in these
situations is far less than the process due in a criminal
trial. Campus disciplinary hearings are neither ``criminal
proceedings'' nor ``trials.''
Words matter. The use of the phrase ``due process'' in federal
law contributes to a faulty perception that federal criminal
trial-like constitutional due process protections must be
provided on all campuses, public and private, for sexual
assault proceedings, and is likely to result in substantially
more civil litigation. We strongly support a process that is
fair to both respondents and complainants, that is carefully
designed to be even-handed, and that does not disadvantage
either party. However, when incorporating this concept in
federal statute or regulation, we recommend using ``fair
process'' or ``procedural fairness'' instead.
2. Colleges and universities are highly diverse--in
institutional-type, in the populations they serve, and in their
educational missions. Not all institutions are residential. Not
all have athletic programs. Some are small, faith-based
institutions. Some are graduate-level only. Some serve adult
students who commute. The standards institutions set for their
campus communities, as reflected through their policies and
codes of conduct also vary significantly, as do their campus
disciplinary processes. While it is perfectly appropriate for
Congress to set the guardrails about what a fair process
entails, it should give institutions flexibility in how they
meet this goal. Highly prescriptive, one-size-fits--all federal
requirements are unlikely to work well and may actually
undermine efforts to be fair to both parties. The problems I
described regarding a live hearing with a direct cross-
examination requirement for all institutions is just one
illustration of why this rigid approach is both unnecessary and
unwise. Campuses have many different processes that can be used
to fairly determine whether a student is responsible for a
conduct code violation. New hearing models and state of the art
techniques may arise that will provide even better processes,
which is another reason policy makers should avoid dictating a
particular process.
3. Be aware of the many different sources of obligations on
institutions in this area--in addition to the federal laws
already discussed, there are other federal laws, state and
local laws, judicial decisions regarding process requirements,
and institutional policies. In one state, at least four pieces
of campus sexual assault-related legislation are currently
pending--state legislation on this topic has been passed or is
pending in many others. Adding more federal requirements on top
of the multitude of existing requirements is likely to result
in confusing, overlapping, and potentially conflicting
obligations. There has been significant churn in this area of
the law, which makes it difficult for even the most-committed
and well-resourced campuses to keep up with various
requirements. Remember that changes will require revision of
policies and practices and new trainings for staff. As one
Title IX official for a major university campus described it,
``No matter how knowledgeable about this area you are, no
matter how hard you work, no matter how much you are committed
and how much you care, it is hard to know if you are meeting
all the different legal requirements.'' If this is challenging
for a major university, imagine what it is like for small,
less-resourced institutions to sort out all the various
requirements, particularly when the majority of institutions in
this country do not have a dedicated general counsel on staff.
4. When considering policy in this area, institutions must have
the ability to address conduct that violates their community
standards, even if it occurs ``off-campus'' or otherwise falls
outside what the law requires campuses to do. This was another
concern raised by the recent NPRM, which is unclear on this
point and appears to force institutions to ``dismiss'' a
complaint that falls outside the Title IX definition, or
outside an ``education program or activity,'' even if that
conduct is antithetical to campus values and prohibited under
our conduct codes. While the preamble of the NPRM suggests that
institutions would have the discretion to pursue these cases,
preamble language does not have the force of law. Given the
fundamental importance of this issue to colleges, campuses must
have clear and unambiguous authority to pursue cases beyond
what the law requires.
For example, an institution receives a report of a sexual
assault involving two students that occurs in an off-campus
house owned by a fraternity, where that fraternity is not
recognized or sponsored by the institution. It is unclear
whether under this scenario, the location of the assault would
place it outside the NPRM's definition of an ``education
program or activity.'' But regardless, the alleged conduct
would be a serious violation of the institution's code of
conduct and one that the school would feel compelled to address
in order to maintain a safe campus. Similarly, a university
learns that a student has been accused of sexually assaulting
another student while both are home on summer break.
While far removed from the university's programs, the campus
general counsels I speak with tell me they would absolutely
address this conduct through a disciplinary process, especially
given that the students are likely to encounter one another
when they return to campus. Many campus codes explicitly state
that their expectations for student conduct apply regardless of
whether the conduct occurs on or off campus. This is also
important from a risk management perspective--if an institution
has reason to believe a student poses a safety risk to other
students, it needs to be able to investigate, assess, and, if
necessary, discipline and remove that student from its
community.
We believe that when sexual misconduct violates campus
community standards, institutions must continue to have the
right to pursue these matters through their disciplinary
processes, regardless of whether the incident falls within the
scope of Title IX. The campus general counsels I have spoken
with tell me they absolutely want the ability to pursue these
cases, and federal law should make clear that they may do so.
5. Finally, while we appreciate the focus of today's hearing is
on how to improve campus disciplinary processes, we also
encourage the Committee to consider ways the federal government
can help support campuses in their prevention efforts. No
matter how effective and fair our campus disciplinary processes
are, our ultimate goal is to prevent sexual assault from
occurring in the first place.
The Clery Act requires institutions to provide primary and
ongoing sexual assault education and prevention programs for
students and employees. Institutions have invested significant
resources in expanded and innovative programming, with
bystander prevention and consent education at the core of these
efforts. I would like to highlight just a few of the efforts
currently underway:
` NASPA--Student Affairs Administrators in Higher Education's
``Culture of Respect'' initiative builds the capacity of
institutions to end sexual violence through ongoing, expansive
organizational change. NASPA has created a ``prevention
programming matrix'' which provides a curated list of more than
30 different theory-driven and evidence-based sexual violence
prevention programs to help institutions identify the program
that best meets their needs.
` The University of Washington incorporates a program called
``Green Dot,'' which is popular on many campuses. The Green Dot
strategy aims to shift campus culture by tapping the power of
peer influencers (campus leaders, student-athletes) to increase
proactive, preventative behavior. Every choice to be proactive
as a bystander is categorized as a ``new behavior'' and thus a
``Green Dot.'' Individual decisions (green dots) group together
to create larger change.
` Vanderbilt University employs a variety of prevention
strategies, targeted specifically to the needs of its
community. For example, after survey data indicated that a
significant number of students had experienced dating violence
prior to coming to college, Vanderbilt enhanced its dating
violence prevention programming by adding additional modules on
this topic. Vanderbilt's programming also includes a theater-
based program called True Life, which takes place during
students' freshman orientation week. Through a series of skits,
performed by Vanderbilt students and based on actual situations
experienced by the students, the program addresses topics such
as sexual assault, dating violence, and substance abuse, among
others.
While many promising practices have emerged, additional federal
support, possibly through grants, could help institutions evaluate the
effectiveness of various approaches, share and scale best practices,
and tailor programming to the particular needs of an institution.
Efforts to educate students about healthy relationships and respect for
others while still in high school and before they come to college is
another piece of the prevention puzzle. While colleges and universities
continue to ramp up efforts in this area, there is still work to be
done and additional federal resources to support these efforts would be
welcome.
Conclusion
Thank you for inviting me to testify on this important topic. I
would be happy to answer any questions you have.
On behalf of:
ACPA--College Student Educators International
American Association of Collegiate Registrars and Admissions
Officers
American Association of Community Colleges
American Association of State Colleges and Universities
American College Health Association
American Dental Education Association
American Indian Higher Education Consortium
APPA, Leadership in Educational Facilities
Association of American Colleges & Universities
Association of American Medical Colleges
Association of American Universities
Association of Catholic Colleges and Universities
Association of Community College Trustees
Association of Governing Boards of Universities and Colleges
Association of Jesuit Colleges and Universities
Association of Public and Land-grant Universities
Association of Research Libraries
College and University Professional Association for Human Resources
Consortium of Universities of the Washington Metropolitan Area
Council for Advancement and Support of Education
Council for Christian Colleges & Universities
Council for Higher Education Accreditation
Council of Graduate Schools
Council of Independent Colleges
EDUCAUSE
Hispanic Association of Colleges and Universities
NAFSA: Association of International Educators
NASPA - Students Affairs Administrators in Higher Education
National Association of College and University Business Officers
National Association of Independent Colleges and Universities
______
[summary statement of anne meehan]
Campus sexual assault is one of the most important and serious
issues facing colleges and universities today. Federal law requires
colleges and universities to address sexual assault on their campuses,
and institutions take complying with these, and all applicable laws,
very seriously. Institutions are committed to maintaining safe and
supportive campus environments that allow students to benefit from the
widest possible array of educational opportunities.
Unfortunately, campus sexual assault cases can be extremely
difficult to resolve. They may involve differing accounts about what
happened; few if any witnesses; little or no physical evidence; conduct
and recollections impaired by alcohol or drug use; and, perhaps,
understandably, a time lapse between the event and the filing of a
report. The central issue often is whether consent has been given, and
this can be very difficult to determine. For these and other reasons,
law enforcement authorities often decline to pursue these cases. But
campuses must address them through their disciplinary processes,
independent of whether criminal charges are filed.
In our efforts to address campus sexual assault, colleges and
universities have three overarching goals. First, we want to support
the survivor. Second, we want processes that are fair to both parties.
And third, while clarity of federal expectations is helpful, we also
need flexibility to address these difficult cases compassionately and
effectively, and in a way that makes sense for a particular campus.
Campus disciplinary processes vary significantly from institution
to institution and even within units of the same institutions, based
on, among other things, the institution's mission, size, student
population, resources, and community values. In general, these
processes can be grouped into ``hearing'' and ``non-hearing'' models.
But regardless of the specific campus disciplinary process used, it
must be fair -both Title IX and the Clery Act require it.
Clery statute and regulations set out the basic requirements of a
fair process. Among them are that campus disciplinary processes must:
(1) be conducted by officials who receive training on sexual assault;
(2) allow the parties to have an advisor of their choosing present; (3)
be conducted by individuals who are free from conflicts of interest or
bias against the parties; and (4) provide timely access to available
evidence. Fundamentally, we think the Clery ``fairness'' framework is a
good one. As Congress considers whether to build on this framework, I
recommend keeping the following five observations in mind:
1. Colleges and universities are not courts, nor should they
be. We do not have the resources, personnel, or expertise of
the criminal and civil justice system. Efforts that attempt to
impose court-like procedures are misguided and likely to create
unintended consequences. The recent Title IX NPRM's requirement
that all institutions provide a live hearing with direct cross-
examination is one such example.
2. Campuses and their disciplinary processes are diverse--
highly prescriptive, one-size fits all requirements are
unlikely to work across all campuses and may undermine the
goals of supporting survivors and being fair to both parties.
3. Institutions are subject to a variety of federal and state
laws on this topic, as well judicial decisions and
institutional policies. When adding new requirements to the
law, be mindful not to create overlapping, confusing, and
possibly conflicting obligations.
4. Preserve institutions' ability to address sexual assault
affecting their community, even if it is beyond what they are
required to address under the law. For example, campuses want
and need to be able to address sexual assault even if it occurs
``off-campus.''
5. As important as it is to ensure fair disciplinary processes,
we should not forget that our ultimate goal is to prevent
sexual assault from occurring in the first place. Campuses have
many prevention efforts underway and additional federal support
for these efforts would be welcome.
______
The Chairman. Thank you, Ms. Meehan.
Dr. Howard, welcome.
STATEMENT OF JEFF HOWARD, ASSOCIATE VICE PRESIDENT FOR STUDENT
LIFE AND ENROLLMENT, EAST TENNESSEE STATE UNIVERSITY, JOHNSON
CITY, TN
Dr. Howard. Thank you, Chairman Alexander and Ranking
Member Murray. I appreciate the opportunity to be here today to
give a little bit of information about one institution's
perspective on responding to sexual misconduct and things we do
to support and provide resource during that process. Over the
past two decades, I have served at three different institutions
as the Dean of Students of the University of Virginia's College
at Wise, as the Dean of Students at East Tennessee State
University, which is also my alma mater where I currently
serve.
At ETSU, we strive to maintain a community of care that is
embedded with a commitment to a fair and equitable process for
all parties involved in any student conduct matter. We have
three separate and distinct steps for any sexual misconduct
review. Those include an intake, an investigation, and a
hearing. The three steps and their staff members involved in
each step are kept distinctly separate. At the intake, a
trained staff member meets with the complainant and the
respondent individually. At this meeting, we share options and
resources and information the student needs to make informed
decisions. The staff member completing the intake will serve as
a resource to the student throughout the investigation and
during any contact hearing that might follow.
An important part of the intake is that ETSU student is
made aware of interim support measures that can be taken to
assist in supporting their health and well-being and their
continued enrollment. Those can include counseling, health
services, changes in housing, class, or on-campus work
assignments. In all but the most severe sexual assault cases,
the complainant and respondent will be offered the opportunity
to meet with the trained mediator to reach a mutually agreed
conclusion to the matter in lieu of an investigation. That
mediation process is predicated on a restorative justice model
and is only implemented when both parties agree to do so.
Should an investigation proceed, then two trained investigators
are assigned to review the complaint the complainant. The
complainant and respondent are given the opportunity to supply
investigators with a written statement and any additional
information they wish to provide. ETSU investigators receive
annual training that is comprehensive and includes information
on trauma-informed care. The investigators offer an in-person
meeting to the complaint, to the respondent, and to any
witnesses, along with an advisor of each person's choosing.
Following that interview, the investigators provide the
individual with a written account of the meeting notes for
review.
In addition to interviews, the investigators may review
other information that is provided or which they request, which
could include their ID card usage, phone or text messages,
social media postings, video camera footage, etc. Following
completion of the investigation, a report is submitted for
review through our Title IX coordinator or university counsel,
and finally for review and adoption by our university
President. It is then shared in its entirety with the
complainant and respondent, and both parties have the
opportunity to review and to appeal the investigators'
findings. Based on the final recommendations of the report and
following any appeals, the next step will mean one of two
outcomes.
Based on a preponderance of evidence standard, a standard
that we use in all student conduct matters, the investigators
find that a policy was or was not violated. If no policy
violation was found, the matter is concluded. If a policy
violation was found, then the respondent will face a hearing
and charges of the institutional disciplinary rules, commonly
called the code of conduct. At a hearing where the code of
conduct charges are reviewed--and I will mention our code of
conduct is in effect on and off-campus for members of our
community and that it spells out expectations of members of the
community for their own behaviors and governs their
interactions with each other. The code also outlines due
process rights, the membership of our board, possible
violations, as well as sanctions.
As an institution of higher education, it is important to
note, the goal of the code of conduct and student conduct
process is to be educational in nature. Those involved in such
processes are stills students and members of our community. Out
initial aim is to change the behavior and hold students
accountable for their actions. However, that outcome might need
to include suspension or expulsion from the university
community, such sanctions that are never taken lightly. Charges
for violating the code of conduct are placed by our Dean of
Students Office and a hearing is scheduled. The parties are
reminded of their due process rights. Details such a screening
the complainant responded from viewing one another in the
hearing room is arranged in advance.
Both parties can see and hear the board and witnesses and
are able to directly question each other or to offer questions
through the board. Many of the questions is submitted verbally
or in writing to the board chair, and the response is given in
a light manner. Each case is different as is each party's
comfort level with questioning or answering one another
directly. The board and the board chair has much leeway to make
sure that all parties are able to actively participate in the
manner in which they are most comfortable.
If the charges are of such a nature that suspension or
expulsion are possible sanctions, then the respondent is also
offered an option to choose the Tennessee UAPA, or Uniform
Administrative Procedures Act, which Senator Alexander
mentioned earlier. We do not find that the UAPA is selected
often, and the overwhelming majority of cases proceed with the
university judicial board. The board receives ongoing training
on student conduct, due process, as well as sexual misconduct
matters.
We annually review and continually review policy and
process to ensure the individual rights, a fair process, and
institutional compliance with state, Federal law, and such
things as the recent decisions by the Sixth Circuit of the U.S.
Court of Appeals. I will mention briefly because I realize I am
running out of time, we offer a tremendous amount of
educational prevention and support resources on our campus.
In addition to maintaining a strong commitment to student
rights and institutional compliance in an equitable and fair
process, ETSU works daily to provide strong education
prevention and support efforts. We have structures in place to
offer online training to nearly 3,000 new students each year--
--
The Chairman. You need to wrap up your time.
Dr. Howard. I sure will. We also offer sexual assault nurse
examiner programming, a counseling center that offers access to
counselors 24 hours a day, and various other Title IX programs
that happen throughout the year. I thank the Committee for your
staff to share a brief overview of one institution's processes
and efforts related to education and support.
Thank you.
[The prepared statement of Dr. Howard follows:]
prepared statement of jeff howard
Over the past two decades, I served students at three
institutions--Carson Newman University in Tennessee, The University of
Virginia's College at Wise, and at my own alma mater, East Tennessee
State University (ETSU) in Johnson City, Tennessee.
I serve ETSU as the Associate Vice President for Student Life and
Enrollment under Vice President, Dr. Joe Sherlin, who leads the
Division and its 25 departments with a daily mission of promoting
student success. As our President, Dr. Brian Noland, reminds us often,
the institution was founded over 108 years ago with a singular purpose,
to improve the lives of the people of the region.
Through our processes and campus partnerships, we strive to
maintain a community of care on our campus. Embedded in that community
is a commitment to a fair and equitable process to all parties involved
in any student conduct matter.
We have three separate and distinct steps for any sexual harassment
or misconduct review. Those include an intake, investigation, and
hearing. The three steps and those staff members involved in each step
are kept distinctively separate.
Intake
At the initial intake, a trained staff member meets with the
complainant and the respondent individually. At this meeting, options,
resources, and information each student needs to make informed
decisions is shared. The staff member completing the intake will serve
as a resource to the student throughout the process of an investigation
and possible conduct hearing.
An important part of the intake is that each student is made aware
of interim support measures that can be taken to assist in supporting
their health, well-being, and continued enrollment. Those can include
counseling, changing housing, class, and on campus work assignments.
In all but the most severe sexual assault cases, the complainant
and respondent will be offered the opportunity to meet with a trained
mediator to reach a mutually agreed conclusion to the matter in lieu of
an investigation. That mediation process is predicated on a restorative
justice model and is only implemented with both parties agree to do so.
(See Appendix A--Title IX Intake Form)
Investigation
If mediation is not an option, then two trained investigators are
assigned to review the complaint. The complainant and respondent are
given the opportunity to supply investigators with a written statement
and any additional information they wish to provide.
ETSU has two full time trained investigators in our Compliance
Office and an additional pool of fifteen trained professional staff
members who assist with student complaints. Training is comprehensive,
conducted annually, and includes information on trauma informed care.
The investigators offer in person meetings to the complainant,
respondent, and any witnesses along with an advisor of their choosing.
Following the interview, the investigators will provide the
individual with a written account of the meeting notes for review. In
addition to interviews, the investigators may review other information
provided or requested as part of the review that can be as varied as
police reports, phone and text messages, student ID card usage, social
media postings, video or security camera footage, and other evidence
that may be relevant to their review.
Following completion of the investigation, a report is submitted
for review through the Title IX Coordinator, University Counsel, and
finally for review and adoption by the University President before
being shared with the complainant and respondent. Both parties have the
opportunity to appeal the investigators' findings with the President.
Based on the final recommendation of the report and following any
appeals, the next step will mean one of two outcomes. Based on a
preponderance of the evidence standard, the investigators find that
University policy was or was not violated. If no policy violation was
found, the matter is concluded. If a policy violation was found then
the respondent will face a hearing and charges of the Institutional
Disciplinary Rules, commonly called the Code of Conduct.
(See Appendix B--Investigation Flow Chart)
Hearing
The Code of Conduct is in effect on and off campus. The Code spells
out expectations of members of the ETSU community for their own
behaviors and governs their interactions with one another.
The Code outlines due process rights, board membership, possible
violations or offenses, as well as possible sanctions. As an
institution of higher education, it is important to note the goal of
the Code of Conduct and Student Conduct process is to be educational in
nature. Those involved in such process are still students and members
of our community. Our initial aim is to change the behavior and hold
students accountable for their actions. However, that outcome might
need to include suspension or expulsion from the University community.
Such sanctions are never considered lightly.
Charges for violating the Code of Conduct are placed by the Dean of
Students Office and a hearing is scheduled with the University Judicial
Board. The parties are reminded of their due process rights including
ample and advanced notice of when and where the hearing will be held,
copies of all materials that will be provided and reviewed by the
Board, the ability to question one another and to call and question
witnesses in a live hearing, and the ability to have an advisor of
their own choosing. Details such as screening the complainant and
respondent from viewing one another in the hearing room are arranged in
advance.
Both parties can see and hear the board and witnesses and are able
to directly question each person or offer questions through the board.
Meaning the question is submitted verbally or in writing to the board
chair and the response is given in a like manner. Each case is
different as is each parties' comfort level with questioning/answering
one another directly. The Board and the Board chair has leeway to make
sure that all parties are able to actively participate in the manner in
which they are most comfortable.
If the charges are of such a nature that suspension or expulsion
are possible sanctions, then the respondent is also offered the option
of selecting a Tennessee UAPA.
The Uniform Administrative Procedures Act (UAPA) from Tennessee
Code Annotated Title 4 Chapter 5 is a more legalistic and lengthy
process involving legal representation and an administrative law judge.
We do not find that the UAPA is selected often and the overwhelming
majority of cases proceed with the University Judicial Board. That
Board is comprised of faculty, staff, and students who each receive
ongoing training on student conduct, due process, as well as sexual
misconduct matters.
ETSU continually reviews policy and processes to ensure individual
rights, a fair process, and institutional compliance per state and
federal law and decisions by the 6th Circuit of the US Court of
Appeals.
Educational, Prevention, and Support Resources
In addition to maintaining a strong commitment to student rights
and institutional compliance in an equitable and fair process, ETSU
works daily to provide strong education, prevention, and support
efforts and resources to the campus community.
The key to success within these efforts and been campus
collaboration and partnerships.
ETSU has created certain structure's to support our efforts
including the Sexual Misconduct Leadership Team (SMLT) and a Title IX
Committee. Each group meets quarterly.
The Division of Student Life and Enrollment manages the Violence
Free ETSU website to serve as an online, one stop shop resource for
students. Online training for new students is coordinated by the
Division. In 2017-2018 there were 2780 undergraduate, graduate, and
professional students who completed the Sexual Assault Prevention
program.
Educational efforts and resources is embedded in the online
orientation (LAUNCH) and on ground new student orientation for students
and for their parents, family, and guests. During our extended
orientation Preview experience peer education and dialogue follows a
performance of the Risque Business skit.
We continually offer passive informational posters about resources
(BucsCARE) and bystander intervention tips (Buccaneer Bystander
Intervention and Let's Be Clear campaigns) throughout both our physical
campus spaces and in the virtual world.
Major programming efforts are coordinated by the Counseling Center
and their Outreach and Advocacy, Sexuality Information for Students
(OASIS) component. This includes Take Back the Night events, Walk a
Mile in Her Shoes, and Sober Sex education efforts.
BucsPress2 is a service coordinated by the Counseling Center and is
available 24 hours a day, seven days a week. A student may call to talk
to a counselor at any time.
Housing and Residence Life offers a residential curriculum that
includes a focus on personal and community safety, healthy
relationships, bystander affects, and sexual assault prevention.
Public Safety coordinates SafeVoyage campus escort service and Rape
Aggression Defense (RAD) training which provides a 12-hour program
teaching women realistic defenses and building confidence.
The College of Nursing operates an on campus Sexual Assault Nurse
Examiner (SANE) program in the University Health Center. One of a
handful of on campus SANE programs in the country.
The ETSU Office of Professional Development hosts an annual,
regional conference entitled ``Escape from Rape: A Cultural Change''
which brings together campus and community partners to share
information and bring awareness to issues involving sexual assault and
community resources.
In person Title IX trainings are hosted on campus each year
including by the Basler Center for Physical Activity, Intercollegiate
Athletics, Fraternity and Sorority Life as part of Greek 101 training
for all new members, and the School of Graduate Studies as part of the
graduate student orientation.
These are some but not all of the programming and resources
available to ETSU's faculty, staff, and students.
______
[summary statement of jeff howard]
Over the past two decades, I served students at three
institutions--Carson Newman University in Tennessee, The University of
Virginia's College at Wise, and at my own alma mater, East Tennessee
State University (ETSU) in Johnson City, Tennessee.
I serve ETSU as the Associate Vice President for Student Life and
Enrollment under Vice President, Dr. Joe Sherlin, who leads the
Division and its 25 departments with a daily mission of promoting
student success. As our President, Dr. Brian Noland, reminds us often,
the institution was founded over 108 years ago with a singular purpose,
to improve the lives of the people of the region.
Through our processes and campus partnerships, we strive to
maintain a community of care on our campus. Embedded in that community
is a commitment to a fair and equitable process to all parties involved
in any student conduct matter.
We have three separate and distinct steps for any sexual harassment
or misconduct review. Those include an intake, investigation, and
hearing. The three steps and those staff members involved in each step
are kept distinctively separate.
Intake
At the initial intake, a trained staff member meets with the
complainant and the respondent individually. At this meeting, options,
resources, and information each student needs to make informed
decisions is shared. The staff member completing the intake will serve
as a resource to the student throughout the process of an investigation
and possible conduct hearing.
An important part of the intake is that each student is made aware
of interim support measures that can be taken to assist in supporting
their health, well-being, and continued enrollment. Those can include
counseling, changing housing, class, and on campus work assignments.
In all but the most severe sexual assault cases, the complainant
and respondent will be offered the opportunity to meet with a trained
mediator to reach a mutually agreed conclusion to the matter in lieu of
an investigation. That mediation process is predicated on a restorative
justice model and is only implemented with both parties agree to do so.
(See Appendix A--Title IX Intake Form)
Investigation
If mediation is not an option, then two trained investigators are
assigned to review the complaint. The complainant and respondent are
given the opportunity to supply investigators with a written statement
and any additional information they wish to provide.
ETSU has two full time trained investigators in our Compliance
Office and an additional pool of fifteen trained professional staff
members who assist with student complaints. Training is comprehensive,
conducted annually, and includes information on trauma informed care.
The investigators offer in person meetings to the complainant,
respondent, and any witnesses along with an advisor of their choosing.
Following the interview, the investigators will provide the
individual with a written account of the meeting notes for review. In
addition to interviews, the investigators may review other information
provided or requested as part of the review that can be as varied as
police reports, phone and text messages, student ID card usage, social
media postings, video or security camera footage, and other evidence
that may be relevant to their review.
Following completion of the investigation, a report is submitted
for review through the Title IX Coordinator, University Counsel, and
finally for review and adoption by the University President before
being shared with the complainant and respondent. Both parties have the
opportunity to appeal the investigators' findings with the President.
Based on the final recommendation of the report and following any
appeals, the next step will mean one of two outcomes. Based on a
preponderance of the evidence standard, the investigators find that
University policy was or was not violated. If no policy violation was
found, the matter is concluded. If a policy violation was found then
the respondent will face a hearing and charges of the Institutional
Disciplinary Rules, commonly called the Code of Conduct.
(See Appendix B--Investigation Flow Chart)
Hearing
The Code of Conduct is in effect on and off campus. The Code spells
out expectations of members of the ETSU community for their own
behaviors and governs their interactions with one another.
The Code outlines due process rights, board membership, possible
violations or offenses, as well as possible sanctions. As an
institution of higher education, it is important to note the goal of
the Code of Conduct and Student Conduct process is to be educational in
nature. Those involved in such process are still students and members
of our community. Our initial aim is to change the behavior and hold
students accountable for their actions. However, that outcome might
need to include suspension or expulsion from the University community.
Such sanctions are never considered lightly.
Charges for violating the Code of Conduct are placed by the Dean of
Students Office and a hearing is scheduled with the University Judicial
Board. The parties are reminded of their due process rights including
ample and advanced notice of when and where the hearing will be held,
copies of all materials that will be provided and reviewed by the
Board, the ability to question one another and to call and question
witnesses in a live hearing, and the ability to have an advisor of
their own choosing. Details such as screening the complainant and
respondent from viewing one another in the hearing room are arranged in
advance.
Both parties can see and hear the board and witnesses and are able
to directly question each person or offer questions through the board.
Meaning the question is submitted verbally or in writing to the board
chair and the response is given in a like manner. Each case is
different as is each parties' comfort level with questioning/answering
one another directly. The Board and the Board chair has leeway to make
sure that all parties are able to actively participate in the manner in
which they are most comfortable.
If the charges are of such a nature that suspension or expulsion
are possible sanctions, then the respondent is also offered the option
of selecting a Tennessee UAPA.
The Uniform Administrative Procedures Act (UAPA) from Tennessee
Code Annotated Title 4 Chapter 5 is a more legalistic and lengthy
process involving legal representation and an administrative law judge.
We do not find that the UAPA is selected often and the overwhelming
majority of cases proceed with the University Judicial Board. That
Board is comprised of faculty, staff, and students who each receive
ongoing training on student conduct, due process, as well as sexual
misconduct matters.
ETSU continually reviews policy and processes to ensure individual
rights, a fair process, and institutional compliance per state and
federal law and decisions by the 6th Circuit of the US Court of
Appeals.
Educational, Prevention, and Support Resources
In addition to maintaining a strong commitment to student rights
and institutional compliance in an equitable and fair process, ETSU
works daily to provide strong education, prevention, and support
efforts and resources to the campus community.
The key to success within these efforts and been campus
collaboration and partnerships.
ETSU has created certain structure's to support our efforts
including the Sexual Misconduct Leadership Team (SMLT) and a Title IX
Committee. Each group meets quarterly.
The Division of Student Life and Enrollment manages the Violence
Free ETSU website to serve as an online, one stop shop resource for
students. Online training for new students is coordinated by the
Division. In 2017-2018 there were 2780 undergraduate, graduate, and
professional students who completed the Sexual Assault Prevention
program.
Educational efforts and resources is embedded in the online
orientation (LAUNCH) and on ground new student orientation for students
and for their parents, family, and guests. During our extended
orientation Preview experience peer education and dialogue follows a
performance of the Risque Business skit.
We continually offer passive informational posters about resources
(BucsCARE) and bystander intervention tips (Buccaneer Bystander
Intervention and Let's Be Clear campaigns) throughout both our physical
campus spaces and in the virtual world.
Major programming efforts are coordinated by the Counseling Center
and their Outreach and Advocacy, Sexuality Information for Students
(OASIS) component. This includes Take Back the Night events, Walk a
Mile in Her Shoes, and Sober Sex education efforts.
BucsPress2 is a service coordinated by the Counseling Center and is
available 24 hours a day, seven days a week. A student may call to talk
to a counselor at any time.
Housing and Residence Life offers a residential curriculum that
includes a focus on personal and community safety, healthy
relationships, bystander affects, and sexual assault prevention.
Public Safety coordinates SafeVoyage campus escort service and Rape
Aggression Defense (RAD) training which provides a 12-hour program
teaching women realistic defenses and building confidence.
The College of Nursing operates an on campus Sexual Assault Nurse
Examiner (SANE) program in the University Health Center. One of a
handful of on campus SANE programs in the country.
The ETSU Office of Professional Development hosts an annual,
regional conference entitled ``Escape from Rape: A Cultural Change''
which brings together campus and community partners to share
information and bring awareness to issues involving sexual assault and
community resources.
In person Title IX trainings are hosted on campus each year
including by the Basler Center for Physical Activity, Intercollegiate
Athletics, Fraternity and Sorority Life as part of Greek 101 training
for all new members, and the School of Graduate Studies as part of the
graduate student orientation.
These are some but not all of the programming and resources
available to ETSU's faculty, staff, and students.
______
The Chairman. Thank you very much to the witnesses for
excellent testimony, and again, for being here. We have a lot
of interest on the Committee. We will now begin a 5-minute
round of questions, and what I will say to the Senators is I am
going to try to keep everybody within 5 minutes on questions
and answers, and if necessary, we will come back to a second
round, and there can be written questions afterwards.
Ms. Gersen, so I understood you, did you say that in terms
of definition of sexual harassment that you would recommend the
Supreme Court decision that interpreted the Title VII case, and
use that definition for Title IX case instead of the definition
in the proposed rule?
Ms. Gersen. Yes, that is what I said, Senator Alexander.
And the reason is that definition in Meritor, which is the
Title VII case, that the hostile environment sexual harassment
definition has been understood for the past several decades as
the sexual harassment definition that the Federal Government
has adopted for Title IX as well. It is, in fact, quite new to
think that the standard should be drawn from the Supreme Court
case of Davis, which is what the proposed rule now proposes.
The Chairman. Thank you. Let me keep moving within my 5
minutes because I have several questions. I have another one
for you.
Ms. Gersen. I understand.
The Chairman. I want to make sure I understood what you
said about the standard of evidence. You said that the standard
of evidence that should be used in a sexual assault case,
harassment case, should be the same standard of evidence that
is used in other cases on campus. Which other cases?
Ms. Gersen. There are many cases on campus that do not have
to do with sexual matters. There could be racial harassment
cases. There could be just cases that allege wrongdoing of any
other kind. There could be theft. There could be plagiarism.
And I think that the preponderance of the evidence is now the
common standard, and it is, I think, important for all of the
standards to be equalized among the different kinds of offenses
that schools deal with. I do not--I agree with Ms. Goss Graves
that there should not be a uniquely higher standard for sexual
matters, nor should there be a lower one.
The Chairman. Okay. Ms. Hamill, I think it is clear that
the law says there has to be a proceeding. It has to be fair,
prompt. We have had discussions about vagueness, about notice.
It is clear that the Clery Act requires that a student may have
an advisor, and of the student's choice, both of them, and that
could be a lawyer. The question then becomes, what is a fair
proceeding? The Sixth Circuit Court of Appeals said, the
university must give the accused student or his agent an
opportunity to cross-examine the accuser and adverse witnesses
in the presence of a neutral fact finder. Others, including Ms.
Goss Grave, say that is not necessary.
Let me ask you first, could evidence adduced in a hearing
about sexual assault on campus be then used in a state court
criminal case against the student who is accused?
Ms. Hamill. Yes, Chairman. Absolutely. Any statements that
are given in the course of a Title IX proceeding could be
subpoenaed for law enforcement purposes and used in criminal
proceedings.
The Chairman. If you were representing an accused person in
a campus case, your advice to that student would consider the
fact that he or she might put themselves at risk in a state
criminal court by what they say or do not say?
Ms. Hamill. That is correct, Chairman. But also, I think
that is a small percentage of the matters that come through a
Title IX process have definite criminal implications. There is
always a specter but there is not always a parallel
proceeding----
The Chairman. Well, what--then in a minute or so, what
would be the minimum requirements for a cross-examination that
the Sixth Circuit requires? By minimum I mean that would
guarantee your client, if it is an accused person, fairness but
at the same time not putting unnecessary administrative burden
on the 6,000 universities we have, some of which are very
small, some of which are large.
Ms. Hamill. I believe that direct questioning, and by the
way it should be very respectful. We are not here to harass
witnesses who come into these Title IX proceedings, but it
should be direct questioning. Handing out questions in written
form to a neutral person to ask the questions is not true
cross-examination and it is very difficult. Cross-examination
by its nature flows. You may change the order in which you have
asked things. You may need to clarify, and it is much better,
and it is a better driver at truth, and for the decisionmakers
to be able to evaluate the demeanor of witnesses if it is a
much more of a given and take.
The Chairman. Thank you. Senator Murray.
Senator Murray. Thank you to all of our witnesses. As I
have said, and I think many of us agree, it is critical that
schools do have a fair, impartial process to address sexual
violence and harassment. It is also important to remember that
in most cases we are dealing with students at school, not
victims and defendants in a court of law. Which is why I have
been frankly shocked at some of the proposals including the
proposal from Secretary DeVos that Title IX, which at its core
protects students from sex discrimination at school, would
require survivors, witnesses, and respondents students to
undergo live direct cross-examination in order for a school to
investigate issues of sexual violence, or harassment, and
discrimination on campus.
To be clear, the proposed DeVos rule would require
survivors and even witnesses to submit to direct cross-
examination by the accused assaulter or their advocate, and I
am really deeply concerned about the negative consequences of
requiring schools to use direct cross-examination, including
the potential to re-traumatize survivors and discourage
survivors and witnesses from coming forward.
I would like to hear from several of you about whether you
think direct cross-examination is required for a fair process.
Ms. Graves if I--or Professor Gersen, let us start with you and
then Ms. Graves, and then a few others. In your opinion, does a
fair process require survivors and respondent students to
undergo direct cross-examination?
Ms. Gersen. Thank you. In my opinion, what is required is
the opportunity to ask questions, and I do not think that the
essential part of that is the opportunity to do it in a direct
fashion so that either your lawyer or the party themselves
would be able to do it personally. I think that as long as
there is an opportunity to put questions to witnesses and to
the other side through a neutral party, that is enough. That
actually gets some of the search for truth and I think that we
have to make compromises here. We cannot have--it may be that
cross-examination is the ideal vehicle for getting at the truth
in some context, but in this context there are other
considerations. And so, I think that strikes an appropriate
balance.
Senator Murray. Ms. Graves.
Ms. Goss Graves. Just to build on what Professor Gersen
said, I completely agree that it is not an ideal method of
getting at the truth, which is what I think schools are trying
to do here. And I also think the model that makes a lot of
sense is what workplaces typically use. They routinely
investigate complaints of discrimination and harassment without
having live trials and direct cross-examination. Sort of an
unusual model to have institutions put in live trials when the
question that they are answering is whether or not you violated
the school or the institution's rules.
If I could just add one point about the Baum case that was
just discussed out of the Sixth Circuit. It is a bit of an
outlier case and so looking at it closely I think it is
important. The University of Michigan had decided that they
were going to have mini trials, including cross-examination for
most things except for sexual assault. And there I think the
court struggled with that. If you are a university that is
determined that you were equipped to do that, why can't you do
that here. Now, I can think of lots of reasons why they may
have determined that they cannot do that here, and that the
issue was serious enough so that they did not want to test
their model in this case, but I do not think that it is similar
to the systems that most universities are employing. They are
not having live trials to address all student misconduct.
Senator Murray. Okay. Ms. Meehan, let me ask you, do the
majority of ACE schools require all students to undergo a live
cross-examination, or do they use other methods?
Ms. Meehan. I do not have a good way to determine exactly
what processes all of the different schools use, but I will say
that our members had substantial concern about the procedure
laid out in the NPRM. And speaking with----
The Chairman. What do you mean----
Senator Murray. From Secretary DeVos's proposed rule.
The Chairman. Yes, don't do these initials.
[Laughter.]
Ms. Meehan. I am sorry.
The Chairman. We are--with initials.
Ms. Meehan. Apologies, yes. And we had concerns about the
chilling effect----
The Chairman. About the proposed rule?
Ms. Meehan. About the proposed rule. We had concerns about
the chilling effect that could have in the willingness of
survivors to come forward and participate. The rule also
excludes the testimony of any witness or party who refuses to
participate in that live hearing with direct cross-examination,
and that also raised a lot of concerns for us.
Senator Murray. Yes. I just have a few seconds, but can you
tell me any examples where schools have found ways to access
credibility without a live cross-examination?
Ms. Meehan. Absolutely. There are many ways to do it.
Written questions is one way. Posting questions indirectly to
the hearing officer, and that the hearing officer then asks
them. So, I think there is a lot of options to get at the truth
of the matter that do not require that method.
Senator Murray. Okay. Thank you. Thank you very much.
The Chairman. Thank you, Senator Murray. Senator Isakson.
Senator Isakson. Mr. Chairman, I am very happy to be here
because I have dealt with this subject a lot in my lifetime. I
am sorry I have but it is probably the most important thing we
will talk about this year, thanks to our country, thanks to our
children, thanks for our marriages, etc. I am happily married
for 51 years to a lovely lady who has taught me a lot. Most
things, I will tell you now, that I have done this right
because she has taught it to me. She was a teacher and a good
teacher. But I have also had a lot of experiences.
I was chairman of the State Board of Education for the
eighth largest state in the country, and I dealt with teachers'
certification and employment. And sexual harassment was a
common problem, either a student versus teacher, or teacher
versus student, more often than not, which is a shame. I went
to a large Southern university myself. I was member of a
fraternity, which I will not name them. I am not going to name
any names. But my freshman year in 1962 which was not that hate
Ashby years, this was back when we did not even know what
marijuana was and did not drink beer too much. And really
behaved pretty normally, unlike today. And a young man or a
senior in my fraternity had sex with a girl in his room, a
woman, in his room on the second floor of the fraternity house
in 1962. And we kicked him out of the fraternity for good. That
is a pretty harsh punishment. You would not think that would
happen today, and it probably would not happen today, but back
then our standards were stronger.
Our standards as a culture have gone down since 1962. That
is one of the--you as teachers or responsible person are put in
a position of making judgments you really should not have to
make. Kids ought to be raised better than they are, but we have
not done that as well, so you have to confront some very
difficult situations. I ran a company with a thousand women.
They worked for the company. It was a sales organization.
Sexual harassment was a tool that buyers and sellers and
people involved in a sales transaction and others would take
advantage of it if they thought it could help them make a sell,
not make a sell, do etc., etc. So, I have dealt with it in
classrooms as a parent, fraternity houses as a member of the
fraternity, my own household as a father of three and married
to wonderful woman, and every place in between, and I just want
to offer you a few--one, I think everybody on this panel has
been terrific. And I am not going to name anybody over others,
but I will tell you this, Ms. Graves had a great point, Ms.
Hamill did so. I appreciate the openness of everybody's
testimony. I appreciate yours, Ms. Meehan, Dr. Howard, and Ms.
Gersen, all of you. But I want to tell you a couple things.
You should not turn the university into a courtroom, but
you should absolutely quickly, and I use that definition
respectfully, quickly when you are given a complaint against a
student for sexual harassment, apply your procedures to that
sexual harassment immediately. Too many cases get put away. Our
businesses love to put off equal opportunity in cases because
EEOC will not let you drag them out until you finally write
them a $500 check and they go away. I know how that works. I
was in business for a long time. You cannot allow that. Timing
is everything, and on sexual harassment, people do not report
them as quickly as they should sometimes. That makes it
difficult to prove, again. You should have a culture in a
university that encourages immediate accusal or presentation of
evidence if somebody thinks they were a victim of sexual
harassment. But not so good that it is used as a vindictive
tool for something to get a point across.
I have seen that happen in my job in education from time to
time where one student wants to get another student, so she
says or he says or somebody says, somebody did x. And the fact
that they charged him with it and it got out--it was a tool, a
social tool, not really a responsible tool, which is why you
have got to be very careful with what we are playing with right
here. And third, you have to have the person who is accused
come before the responsible persons at the institution and talk
about the issue.
I do not think you have to have a trial and I do not think
you have to have a public display, but you absolutely have to
have a culture in your company that requires the manager or the
person responsible for that individual and that individual to
meet on the policies of that company that you think have been
violated or they have been accused of violating. And you will 9
times out of 10 figure out what is going on. But it has go to
quick, it has got to be decisive, and you have got to make that
person who is most in contact with the accused, like their
supervisor or their teacher in a room or whatever, to be the
person that does it. Do not--everybody wants to split this up.
College professors hate this. They do not anymore want to talk
about sexual harassment. They fly to the moon. They run away
from that responsibility. Well, everything does. I do not like
it either and I have had to do it.
I had to let the best employee in my company, in sales, go
many years ago because of something she did that was just
inexcusable, and it came out. It came out because I confronted
her with it in a respectful way hoping it was wrong, and it was
right. And she thought I would never fire her because of how
much she did in business, and I did. So, the pressures are all
over the place. They are not just between the accused and the
person doing the accusing, but they are with everybody. So,
speed is absolutely essential but not so fast that you overlook
facts. Filing quickly ought to be--you out to have a statute of
limitations. I personally think, Mr. Chair. If something is
going to file, I know a lot of you do not like those because
the Lilly Ledbetter case and things like that, but this is not
Lilly Ledbetter. This is accusing somebody of a terrible, awful
thing and if somebody did it, they ought to be called,
complained when they did it, and company will call it out
quickly. And institutions need to deal with them in an
expeditious manner.
I have used all my time talking myself and I did not want
to do that, but I wanted you to know, there is no easy answer
to this subject. But there are a few things that I can tell you
in my 35 years in public life and business, that have helped
me. And that is what I have tried to suggest to you. Do not--we
cannot as a Committee run away from this issue. You cannot run
away from us while we are deciding it. The Chairman is doing a
great job and the vice chairman is doing a great job of getting
the facts out on the table and I am going to stay in this to
the bitter end. But I hope when I leave I can say this is one
of our achievements. For everybody who went to a college or
university and everybody that was employed by somebody knew
what was right and was wrong and knew there was going to be
consequences if they did not behave. It is really that simple.
It is not as complicating as everybody makes it.
The last thing I would say is, I read Ms. Ginsburg's
opinions on a lot of things and on sexual harassment, I learned
more from what she wrote than anybody. And I had to depend on
that in certain cases. So, I commend her to you. I was layman
not a lawyer, reading something I needed to learn. Her writings
were very good, are very good job, and she does a good job.
Thank you, Mr. Chairman. I have talked too much. I yield
back the floor.
The Chairman. Thank you, Senator Isakson.
Senator Hassan.
Senator Hassan. Well, thank you, Mr. Chair and Ranking
Member Murray, and thank you to the witnesses for being here. I
am really pleased to be here to talk about campus safety
because obviously students? success and students? safety go
hand in hand, and as we work to reauthorize the Higher Ed Act,
we have to find ways to protect students from harm. And today
this hearing is about campus sexual assault, obviously a very
important issue, but I just, before I start asking questions,
want to take a moment to recognize a couple of other issues we
have to consider during the reauthorization process.
One is substance misuse on campus, and the other is mental
health issues on campus. On substance misuse, Senator Tester
and I introduced a bill last Congress to ensure that campuses
with high rates of substance misuse are able to provide
impacted students with the treatment and support that they
need. And on mental health, I recently heard from the
University of New Hampshire's Chief of Police that there is no
greater challenge that he sees on campus than issues related to
the mental health of students. They have transported 63
students, since the beginning of the school year in our
flagship campus, to a psychiatric facility. It is stunning.
That is why last Congress I helped introduce the Higher
Education Mental Health Commission Act that take steps to
better meet the needs of students facing mental health issues.
So, I look forward to focusing on those issues among others
during our ongoing discussion about the Higher Ed Act. Ms. Goss
Graves, I wanted to follow-up a little bit on what Senator
Murray was asking about because one of my overarching concerns
with the Title IX proposed rule is the potential harmful impact
of requiring live cross-examination of survivors who come
forward with allegations.
If you can try to be quick in your answers just because I
am, like everybody else, trying to move through 5 minutes. Does
a live hearing that includes cross-examination have the
potential to re-traumatize survivors?
Ms. Goss Graves. It absolutely does. The first thing that
we should think about is that because these are not courtrooms
and because the Clery rule says an advisor of your choice, it
could be your fraternity brother, a parent, a teammate who is
asking these questions. There aren't rules that ensure that it
is not a traumatizing----
Senator Hassan. So just, I am assuming from some things I
have read and kind of from my own experience that just being
asked to relive a traumatic experience in itself is traumatic,
and you are saying then without rules and guardrails, it can be
even worse?
Ms. Goss Graves. It is precisely why in other settings
there is a lot of work to put guardrails in place, in actual
courtrooms, in police interviews. There is a lot of work to
make sure that they are less traumatizing.
Senator Hassan. So that is important for us to understand.
I also want to take a moment here to discuss traumatic memories
because that is another issue. There is extensive research that
demonstrates that traumatic memories, like those resulting from
an assault, are often distorted and result in fragmented and
disorganized memories that are missing details. So, can you
explain how cross-examination in these cases could result in
inaccurate information?
Ms. Goss Graves. That is right. Recalling experiences of
sexual violence is not necessarily linear, right, and one of
the things that we have learned is that some things come back
in fragments, sometimes the ability to tell the story in a way
that sounds--that allows the person who is asking the question
to have the precise answer is not what you are going to get,
but that also does not mean that it did not happen and it does
not mean that you are absolutely getting to the truth. That is
why you have experts who are trained in engaging people who
have experienced this type of trauma. It is the best course.
Senator Hassan. Okay. Well, thank you for that. I will
submit additional questions to the record about other
techniques for getting at the truth in situations like these,
but I did want to turn just briefly to the economic impact of
campus sexual violence on our campuses. Researchers at the
University of New Hampshire's Prevention Innovations Research
Center have looked at these long-term implications of campus
sexual assault. Research shows that roughly one-third of
survivors leave their studies having long-term earning and
career implications for them and our entire economy. Today
happens to be equal pay day, the day that marks how far into a
new year women have to work to earn what men have already
earned in the previous year. In your opinion, do you think
that, Ms. Graves, do you think that campus sexual assault has
long-term implications to many survivors' future economic
potential?
Ms. Goss Graves. There is no question. We have had clients
who have not finished college. We have had clients who have
dropped out and become homeless. The specific short-term impact
is there, but it is also a long-term impact. It means people
are not taking the majors that they want to have just avoid the
person who attacked them.
Senator Hassan. Well, thank you for that. And Mr. Chair, I
will also submit to the record questions about the particular
circumstance of students on campus who experience disabilities
because they are disproportionately subjected to sexual
violence. Senator Casey and I, this morning, are putting in the
SECURE Act, again, to focus on how to make sure campus
processes are particularly suited and adjusted for students who
experience disabilities. And I will submit further questions
about that for the record. Thank you.
The Chairman. Thank you, Senator Hassan.
Senator Smith.
Senator Smith. Thank you, Chair Alexander and also Ranking
Member Murray, and I am so grateful for this hearing and for
all of you being here today to testify. I am interested in
honing in on this question of geography, which is part of the
way that this proposed rule is written. Secretary DeVos's
proposed rule would significantly alter the scope of Title X
enforcement when it comes to geography, and it would
essentially say, it exactly says, that a college would be
required to dismiss a complaint about allegations if that
allegation occurs off-campus and is not part of an
institution's program or activity. I want to just understand
this a little bit.
Let me start with you Professors Gersen. Under this
guidance, if the student was sexually assaulted at an off-
campus house party, at a private residence say by classmate,
would the school be required to dismiss that complaint under
the proposed rule?
Ms. Gersen. Under the proposed rule, unless that off-campus
place had some connection to the school's program or activity,
that would not fall within the jurisdiction of the school.
Senator Smith. What if for example that off-campus party or
residence, a student in undergrad was assaulted by a graduate
student, like a TA, for example. Would the proposed rule in
that case require that allegation be dismissed?
Ms. Gersen. The proposed rule would require a dismissal of
that allegation regardless of who it was that was--who it was,
the perpetrator. So even if it was two fellow students at an
off-campus location.
Senator Smith. Okay. So, I am trying to understand what due
process rights are protected by this narrowing of the scope of
Title X enforcement as it relates to geography. I mean what is
the--why would you do that? I would love to hear from Professor
Gersen, anybody.
Ms. Gersen. I think there have risen some concerns about
having jurisdiction be absolutely everywhere, and so there are
actually legitimate concerns about let us say 25 year old
allegations of incidents that may have happened off-campus,
maybe even hundreds of miles away. And we are seeing some
schools actually taking jurisdictions over those kinds of
cases. So, this is about statute of limitations and it is about
how do you limit the scope. I think that the proposed rule has
gone too far and does not include enough, but there clearly is
some kind of balance that should be struck.
Ms. Goss Graves. If I could just add. The Department of
Justice's recent study said that 95 percent of sexual assaults
occur off-campus. So really the way that I see this proposed
rule is limiting the liability of schools in limiting the types
of things that they would have to respond to, but it is not
good for schools, of course, because they want to know if they
have a problem on their campus. The other thing is the
relationship between what happens on campus and then what
happens the next day on campus is so interrelated.
If there is an assault off-campus, and you are sitting next
to the person in class the next day, that harm is continuing,
or if you are harassed online constantly that may--I mean with
our phones, that may happen while you are on campus or while
you are off-campus. So, the way that they have defined this has
done nothing but really narrow it to very few incidents that
actually a school would be responsible for.
Senator Smith. Title IX protects a person's right to
educational opportunity, and if that right is infringed on
because of what happens to you off-campus, for example over the
phone or at an off-campus party, there still is a
responsibility to protect that student from sexual
discrimination for example, even though it does not happen
physically on campus or related to the programming of the
campus.
Ms. Goss Graves. That is right. The reason that courts have
found that is because they acknowledge the connection between
what is happening on campus, the program and activities that
are happening on campus, and the relationship between the
harassment what is happening off, and that sometimes they are
so intertwined you cannot separate them.
Senator Smith. Right. Thank you. Chair Alexander, you had
raised the question of geography as one of the three things
that you were hoping to look at and I agree with you. I think
it is very important and this is, I think, helpful to
understand that a strictly arbitrary definition of only on
campus probably has the goal of limiting liability but not to
limiting discrimination. Thank you.
The Chairman. Thank you, Senator Smith. And thanks for
pursuing that line of questioning.
Senator Kaine.
Senator Kaine. Thank you, Mr. Chair, and thanks to the
witnesses. First, Mr. Chair, I would like to introduce into the
record a letter that I sent to Secretary DeVos on January 29th
about the proposal, and also a lengthy letter that was sent to
the Secretary by our State Council of Higher Education for
Virginia on the 28th of January. If I could enter those on the
record.
The Chairman. So, ordered.
[The following information can be found on page 144 in
Additional Material:]
Senator Kaine. Thank you all for your testimony. This has
been helpful. There are two areas that I want to dig into. And
the first is the deliberate indifference standard. I am trying
to understand how this proposal would sort of change the equity
of the existing rules. So, I want to make sure I understand
this, and Ms. Goss Grave maybe I will start with you because
your testimony sort of digs into this.
As I read it, the standard under which a college might be
liable for their own actions or inactions prior to this
proposal was if a college knew or should have known about
activity that would meet the harassment definition, then they
are required to take immediate and effective corrective action.
They are required to take reasonable steps to immediately and
effectively correct what they know happened. So that is sort of
the current standard. But the proposed standard is, a school
will only be held responsible for a response to sexual
harassment if its response is clearly unreasonable in light of
the known circumstances.
Talking about burdens of proof can be a little bit wonky,
but instead of an affirmative obligation on the college, if you
know or should have known, you have to immediately take
reasonable corrective steps to--you are not going to be held
liable unless your actions are clearly unreasonable. That seems
to me to be a pretty significant shift in the landscape in
terms of what a university's obligation and potential liability
would be. Am I reading that correctly?
Ms. Goss Graves. That is correct. I mean, in 2001, the
Department of Education put their guidance to notice and
comment and had that standard that is more similar to the
standard in workplaces of when----
Senator Kaine. If it could--2001, so this was during the
Bush administration----
Ms. Goss Graves. It was actually the tail end of the
Clinton administration but maintained during the Bush
administration and maintained during the Obama administration.
Senator Kaine. There has been a consistent rule that this
would alter.
Please continue.
Ms. Goss Graves. Right. Several ones. That is right. And
the standard for damages, which was spelled out by the Supreme
Court in the Gebser case and in the Davis case was that higher
standard. And the reason they did it was they said, if you are
going to pay damages, we are going to say that there is a
higher standard. We are going to leave it however for the
Department of Education to outline what it thinks is the better
standard that it should use in its own enforcement, and what is
the better standard that should guide schools. So, the court
distinguished between damages and what the Department of
Education should do for its enforcement.
The Department of Education, after very careful review,
including rounds of notice and comment, came up with a standard
that was more similar to what happens in workplaces. So, this
would be really a way to upend things for almost 20 years, and
sends, I believe, a really confusing signal to schools about at
what point they intervene in harassment. All the schools that
we talked to say they want to make sure that they intervene
promptly and that they do so effectively. They do not want a
low, low standard of was I deliberately indifferent. Did
everything I do, was everything I did almost wrong except for
and the purpose----
Senator Kaine. Can I ask your opinion, do others think we
should switch the standard to this deliberately indifferent or
a school is okay unless their actions are clearly unreasonable?
Dr. Howard. I think institutions have an obligation to
respond. These are members of our community. These are students
whose behavior is potentially impacting each other, whether it
happens on or off-campus, and I think the current standard is
very fair.
Senator Kaine. Let me switch to a second topic, if there is
no others on this. Ms. Meehan, I was really interested in your
testimony and you alluded to it in your oral testimony without
getting into, hey, we ought to be focusing on prevention. I am
really interested in these processes, but we do have an
opportunity in the Higher Ed Act to do things that is about
prevention, and you have some examples on page nine of your
testimony. You just happened to pick one from Washington State
and Tennessee. I wonder how that happened?
[Laughter.]
Senator Kaine. But assure us that there are some good
models out there, there are some things that we could draw in,
and that university administrators can draw on to actually stop
this before it happens. I would love to not have to worry about
issues like cross-examination because, men, I would love to
have such great prevention programs that we really do a good
job there. So, give us some assurance.
Ms. Meehan. Yes. Well, we all would like that. And I
mentioned in my testimony the work of NASPA, which is the
student affairs professionals. They have an initiative called
Culture of Respect that has a lot of great resources. They have
put together a matrix that outlines some of the major
prevention efforts already underway that focus on bystander
intervention and things like. Green Dot, I also mentioned as
one of the programs that the University of Washington uses, but
also the University of Virginia uses. And that is a program
that helps, tries to use peer influencers to really change the
culture on a campus to get everyone doing something proactive
about this problem.
Senator Kaine. Excellent. Thank you so much.
Thanks, Mr. Chair.
The Chairman. Why did you mention the University of
Virginia?
[Laughter.]
The Chairman. Who we had hoped to play in next weekend but
are not. But that is another issue.
Senator Casey.
Senator Casey. Mr. Chairman, thank you very much. I want to
thank the witnesses for being here. I am a little back-and-
forth today. We have two hearings that are conflicting. So, I
want to first start with something for the record that I have
to make sure that we get made part of the record. I would ask
that the following documents be included in the hearing record.
No. 1, a letter from the National Council on Disability and
accompanying report, ``Not on the Radar.'' No. 2, a letter from
S. Daniel Carter and Taylor Parker of SAFE Campuses, LLC. And
third, a letter from Eva Amar, parents against campus crime. I
want to make sure they are part of the record.
The Chairman. So, ordered.
[The following information can be found on pages 152-225
and 226 in Additional Material:]
Senator Casey. Thank you, Mr. Chairman. Today we are
introducing legislation, the Safe Equitable Campus Resources
and Education Act, or so called SECURE Act. Senator Hassan and
I, I am sure this may have already been mentioned but I want to
make sure that is on the record. Grateful to be working with
Senator Hassan on this. This bill improves on the Campus SAVE
Act, my legislation from a number of years ago, and of course
the foundational Clery Act, specifically looking at how to
strengthen the protections for students with disabilities on
campus.
In early `18, the National Council on Disability released
an expansive report entitled, I do want to just refer to it,
``Not on the Radar, sexual of college students with
disabilities.'' This report found that one in three college
students with disabilities were victims of sexual assault, and
that of these victims--that these victims often faced
additional hurdles in seeking justice and help as a result of
their disability. The SECURE Act will make target improvements
to the Clery Act to ensure that individuals with disabilities
are provided with the same comprehensive support and
protections as their peers, and that systems in place to
respond to the needs of victims include the accommodations that
may be needed by individuals with disabilities.
We are grateful to be introducing that today, but I know I
am limited on time, but Ms. Graves, I wanted to ask you a
question about the preponderance of the evidence standard. I
have long advocated for that standard as the most appropriate
standard for institutions of higher education for using campus
conduct proceedings related to sexual violence. It is of course
part of the Campus SaVE Act. But until the recent proposed
rule, the Department of Education at one point seemed to agree
with me. I know you have reviewed this already in both your
testimony and otherwise, but what do you think is the most
appropriate standard for such proceedings, and why?
Ms. Graves. I agree that it is the preponderance of
evidence standard is the general standard that is used in civil
claims, including civil rights violations of which this is. It
is the standard that would be applied if we were in actual
courtrooms, right, and you were bringing a Title IX claim, they
would apply the preponderance standard. It is the standard that
is used in employment situations of discrimination and
harassment.
One of our concerns is putting this issue in a different
space where you would apply a heightened and more burdensome,
and a unique standard for sexual violence, a standard that you
probably would not apply for other types of misconduct, for
other forms of discrimination, including things like racial
harassment or disability harassment.
Senator Casey. Well, I appreciate that, and I am grateful
that so many people are willing to push hard on these issues
because for a lot of years too many institutions of higher
education were not getting the job done, and I think that the
change that we have tried to bring about has been essential. I
have a couple more questions for the record, but I will submit
those. Mr. Chairman, thank you very much.
The Chairman. Thank you, Senator Casey.
Senator Baldwin.
Senator Baldwin. Thank you, Mr. Chairman, and thank you to
all of our panelists for being here today. We owe every student
the ability to learn in a safe environment free of sexual
harassment, harassment in general, assault, bullying, etc. And
we also know that this problem is very pervasive and has been,
well not getting the attention that it deserves for many, many
years.
We also have to ensure that there is a fair, transparent,
and unbiased process for addressing these cases. And so, we
have been discussing the proposed rule that the Department of
Education issued last year. There is elements that we have been
discussing throughout this hearing that I find very concerning.
And so, as we approach the Higher Education Act
reauthorization, I think we have to be very careful in
understanding the proposed rule's approach, and avoiding
mistakes, codifying mistakes that we see at this point.
I am going to start by following on the Chairman's line of
questioning regarding the proposed rule's definition of
harassment, and I want to note as a tangent that a couple years
back, the Congress decided that the entire Congress and its
staff should get training in understanding sexual harassment
and harassment generally on the basis of other protected
categories. And I am mindful of that because we just had an all
staffs retreat and everyone in my staff and managers got a
little bit of additional training. And there was a lot of focus
on the fact that harassment, when it is severe or pervasive,
yet the rule that has been proposed for campus is severe and
pervasive.
Our discussion in our staff because when you are going
through a training you can ask questions, etc. That is really
different--and, in this case. So, I would start with you, Ms.
Goss Graves, what do you believe would be the consequences for
students on college campuses across the country of adopting
this particular definition of sexual harassment, and
particularly what would be the consequence because it is
inconsistent with what applies, say, in the workplace?
Ms. Goss Graves. I think a big consequence is that fewer
students will report. One of the reasons that students already
do not report, is that they believe their own experiences are
not severe. There was a study that showed that recently. And I
also think it sends a particular message about the value of
their experiences that they are having in schools and the
ability for them to be prepared for what they need to know in
the workplace. Schools should want to be teaching and applying
the standard that their eventual students, who will be eventual
workers, will have to use in the workplace, not suggesting that
there is something very different.
The last thing I will say is that applying that standard
will be very, very difficult if it is an, and, versus an, or.
One of the reasons you have an, or, is because it is all sort
of a spectrum, right. You could have a few incidents that by
themselves actually do not meet the standard but if done again
and again and again, all of a sudden, you have a situation that
you need to address. You should not wait until someone is
basically dropped out of school before deciding that the
standard, okay it is both pervasive and severe, and we will
finally address it. That is not where schools want to be.
Senator Baldwin. A question for you, Ms. Meehan. You hear
feedback about this proposed rule from many institutions. I am
curious what you have heard both about the evidentiary
standard, clear and convincing versus preponderance, and about
the question that I just asked with regard to the definition
being severe and persistent versus severe or persistent. I am
sure there is a wide spectrum, but I--if you can summarize.
Ms. Meehan. Yes. We did not comment on the specific and,
or, or distinction in our comment letter, and I think one of
the reasons why that did not surface as one of the issues that
the community wanted to talk about is in part because in an
employment context and under Title VII, the or standard is
already present. So, this is a case where potentially the
proposed rule is setting up a different standard than the
standard that we will have to apply in other context. So, I
think that could be confusing. And there are also a number of
institutions that have, for their own purposes, defined sexual
harassment on their campus using or.
Your second question regarding the standard of evidence, we
did comment on that and we had concerns about particular
language around the--there were some restrictions put on the
freedom of institutions to choose between those two standards.
And we heard from a number of institutions that felt that the
way that it was structured, the fact that the standard had to
be the same across all disciplinary processes with the same
serious conduct violation, and also across employee and student
conduct proceedings, that in some cases this was going to
create a de facto situation where you were going to be forced
to go with a clear and convincing standard on your campus. And
many campuses have adopted preponderance of evidence. There are
state laws requiring preponderance of evidence. So, you are
again setting up a potential conflict between what institutions
are required to do and what the new rule might have them do.
The Chairman. Okay.
Senator Baldwin. Thank you.
The Chairman. Thank you, Senator Baldwin.
Senator Rosen.
Senator Rosen. Thank you. Thank you Chairman. I appreciate
all of you being here today. I would like to submit for the
record two letters. One from the Title IX coordinator from the
University of Nevada Reno that discusses her concerns with this
new proposal, and one from the chancellor of higher--from Dr.
Thom Reilly. He is a Nevada System of Higher Education
Chancellor, where he outlines the following in concerns about
the live hearings and the higher education context that we have
discussed. About, as we have discussed again, the new
regulations. It would more narrowly define sexual harassment.
The requirement to provide an advisor, and the examination of
evidence. So, I respectfully would like to submit these for the
record.
The Chairman. So, ordered.
[The following information can be found on page 229 in
Additional Material:]
Senator Rosen. Thank you. And so, as we have heard today,
the proposed rule significantly narrows the definition of
sexual harassment. You have just been talking about it, the
word, and it really makes a big different. And like I said, the
chancellor submitted his concerns. The provision would
effectively allow schools to turn away students who fall short
of this new definition--turn away the reporting their behavior.
So, could this make the victims question themselves, wonder, is
this bad enough to report, decreasing the chances, you think,
of reporting harassment, and increasing the chances that the
behavior could escalate?
Ms. Gersen. Absolutely. That is the case. I would note
however that no matter where you draw the definition, there
will be people who fall inside it, people who fall outside of
it. And the people who fall outside of it will always question,
is this an experience that is worth reporting. And so, it is a
problem that will occur. I think the main question is really
objectively, where do we want to draw the line so that it is an
appropriate standard that catches the kind of conduct that
affects education in a way that we are concerned about.
Senator Rosen. Well, let us talk about people who
potentially fall outside of it. UNLV is tied for the Nation's
most ethnically diverse campus. Many students of color, first
generation students, older students, part-time students, all of
them face barriers just in their daily life, their challenges,
perhaps inherent bias or other kinds of harassment. So, do you
think this definition is going to have an effect on students
who already may be facing discrimination or other institutional
barriers?
Ms. Gersen. I do. I think it is going to have a very
negative effect to have a definition that says severe and
pervasive. It just simply does not cover enough conduct that
really actually impairs someone's access to education. That is
the main concern.
Senator Rosen. Thank you. I would like to move on to
talking about, as we have discussed earlier, a little bit about
the hearings that we have, and about having to require
advisers. So, one of our Title IX coordinators from Nevada
University recently stated her school is not equipped to be and
does not wish to be a judicial body. So, if the university is
required to provide advisors to each person to manage a quasi-
judicial process, what is the financial obligation to the
institution, who should bear the cost, and how do we monitor
these program's effectiveness and fairness?
Ms. Goss Graves. So the Clery Act requires right now that
students be allowed to bring in an advisor of their choice, but
if schools are actually going to turn themselves into bodies
that are having trials, I think it is critical that both sides
have access to counsel. So not just an advisor, to attorneys,
so that the process is more informed, so that they understand
what is happening with the process. It you are having cross-
examination, the idea that you would have cross-examination
without someone to be able to object in real-time to questions
that are unfair. All of these things have to spin out about
what it looks like in practice versus whatever idea people have
about what is happening for schools.
Senator Rosen. Thank you. I yield back.
The Chairman. Thank you, Senator Rosen. This has been very
helpful to me, and I thank you for your careful analysis. I
think Senator Murray and her staff are working with our staff
to create an environment where we can have this kind of
discussion on an issue that is not so easy to have a discussion
on in some form. So, I thank you for that. Let me ask a couple
of more questions. Dr. Howard, you operate in a state where if
a student wants it, they are entitled to cross-examination,
right? Your public university and the state law says so.
Dr. Howard. That is correct.
The Chairman. Did you say that in most cases they do not
opt to do that?
Dr. Howard. They usually do not opt for what we call the
UAPA process.
The Chairman. Do you offer them the opportunity? Do they
know they have that opportunity?
Dr. Howard. Yes.
The Chairman. The Clery Act says they may have an adviser,
so do most of them have an adviser? Do you provide the advisor?
Dr. Howard. We do not provide an advisor. We allow students
to select an advisor of their choosing.
The Chairman. Is that often a lawyer?
Dr. Howard. In recent years, more likely than not it is.
The Chairman. Then, how do you comply with the--it sounds
to me like you really allow for cross-examination, but you do
it in a less burdensome way. Would you go back over that again?
Dr. Howard. Sure. And to begin with, I think the way our
committee, the judicial board frames it, we allow questioning.
We do not call it cross-examination. We allow both parties to
be screened so they do not see each other to function----
The Chairman. You mean a screen between the parties?
Dr. Howard. Yes. So, they can be----
The Chairman. Are they comfortable with that?
Dr. Howard. We allow that, or we allow them to operate from
another room via Skype or some other----
The Chairman. They can be in another room. They can see
each other or not see each other?
Dr. Howard. Correct.
The Chairman. What do most opt to do?
Dr. Howard. Most often the screening. To be in the same
room, safely screened from each other. We allow them to ask
questions of each other, any witnesses. That is generally done
through the chair. So, my question might be directed to you,
the response would be directed to you----
The Chairman. That is what Senators are supposed to do, but
sometimes we do not. But, so if I wanted to pose a question to
Senator Murray, I would do that through you rather than
directly?
Dr. Howard. Correctly, yes.
The Chairman. Okay. How does that work? Do you feel--how
would you change the law or the proposed rule in order to make
your system fair to the accused and fair to the accuser?
Dr. Howard. I think we feel our system works quite well. We
have concerns about involving additional advisors, especially
lawyers, to be able to more directly cross-examine one
another----
The Chairman. That is allowed now, right, by the law?
Dr. Howard. By the recent Sixth Circuit decision, they
can----
The Chairman. We are interpreting the cross-examination.
Dr. Howard. Yes. They can have the adviser do that. We have
not had a hearing since that decision where we have used that,
but it is present.
The Chairman. But would not your state law require you to
do that too?
Dr. Howard. In the UAPA option, absolutely.
The Chairman. What does UAPA mean?
Dr. Howard. University Administrative Procedures Act. It is
a more legalistic process. It is handled through the Attorney
General's Office in the State of Tennessee, and so students can
choose that option versus a university hearing board, which is
mainly what I have been discussing today.
The Chairman. What standard of evidence do you use?
Dr. Howard. In our university judicial process, it is
preponderance. The UAPA offers a higher standard.
The Chairman. Which is clear and convincing?
Dr. Howard. Correct.
The Chairman. You would have to use the clear and
convincing, under the state law, if the students insisted on
it? Is that right?
Dr. Howard. If the student selects that hearing option,
correct.
The Chairman. Ms. Hamill, you have heard some of the
witnesses disagree with you on ``cross-examination or live
examination'' and whether it is necessary or not, or whether it
is provided. What would your argument be about why an accused
person needs the kind of cross-examination you talk about? It
has been said and I am sure it must be maybe true, must be true
that there is no worse experience than a sexual assault. The
second worse might be to be accused unfairly of, or
inaccurately, of sexual assault.
What do you recommend we do about the live hearing
requirement to cross-examine, the Sixth Circuit opinion, the
reluctance some of the other witnesses have to allow lawyers to
examine the accuser or the accused and adverse witnesses? What
would you say about that, and what would be the minimum
protection for your client, let's say it is an accused, without
unnecessary burdens on the university or unfairness to the
accuser?
Ms. Hamill. First of all, I think I am heartened that there
is more of an emphasis on informal resolution, so hopefully
many of these matters would be resolved before a hearing, but a
hearing would probably be where the most significant, most--the
situation were an accused student is facing the most
significant consequences of either expulsion or suspension.
They also likely involve issues of credibility, so I think it
is very important that there be a way to get at the full truth.
The other piece is that we are in a system, these are not
court systems. There is no subpoena power. You do not have
discovery. You do not have rules of evidence, so that often
times you actually have a somewhat incomplete record as you go
into a hearing. And so, one of the ways to certainly probe the
narrative is to be able to have some form of cross-examination.
I think it is important to recognize that lawyers have been in
these rooms for the last five or 6 years, and schools have
known how to limit.
In other words, you do not harass you. You do not do the
things. The school has very clearly layout what a lawyer is and
is not allowed to do and there is----
The Chairman. Well under the current Clery regulation, a
school may restrict what a lawyer may be allowed to do. Is that
correct?
Ms. Hamill. Absolutely. And basically, I wouldn't ever
speak in a hearing. It is all the student that I am advising
who is going to be doing the speaking, an opening, a closing,
handing up questions to be asked indirectly. And so, I think
that anybody who also thinks that it would be effective to
bully witnesses, in these proceedings you are not going to be
getting--you are not going to be advocating for your client
very well if you are using bullying tactics. They would not go
over well in these proceedings. I can tell you that from tons
of experience in having dealt with the decisionmakers in these
hearings. So, I think you can set up guardrails that would be
appropriate and that would keep a decorum and a dignity and a
respectfulness to the process.
The Chairman. I will give--let Senator Murray have all the
time she wants, but let me, Ms. Goss Graves, do you agree that
under the Clery Act a student may have an advisor in such a
proceeding? Right?
Ms. Goss Graves. That is correct.
The Chairman. That advisor maybe a lawyer?
Ms. Goss Graves. That is correct.
The Chairman. Do you think it is okay for the lawyer to
submit written questions to a neutral party who then asks the
questions of the other party?
Ms. Goss Graves. Do I think it is okay for the lawyer----
The Chairman. I mean, I am trying to narrow down here what
the concern is. If there are questions to be asked, there is a
neutral party, an accused, and accuser. So, if the accused has
questions, I assume it would be appropriate in your thinking to
give those questions to the neutral party----
Ms. Goss Graves. Yes.
The Chairman. You can ask the accuser those questions?
Ms. Goss Graves. Yes, I understand your question. So, if
you are using a hearing format and submitting questions is one
way, having people write comments on statements is another.
There are lots of ways that people test the veracity of a
statement.
The Chairman. But what you object to is allowing the----
Ms. Goss Graves. The cross-examination.
The Chairman. Allowing the accused to ask the accuser the
questions, right?
Ms. Goss Graves. That is right. The trauma from having the
person who you said just raped you, ask you a series of
questions directly. That in and of itself--you would not see
that in most courtrooms, nor would you want their best friend,
their fraternity brother, their father, any of those people
being directly asking you questions about the assault you said
happened.
The Chairman. In a courtroom you would not see that?
Ms. Goss Graves. You would not see that. I mean----
The Chairman. If you were accused of raping in a state
court, you would not see?
Ms. Goss Graves. You would have an attorney. I mean like I
have to say it would be extraordinary, so to picture this, for
a judge to allow the person who you said raped you to
interrogate you on the stand.
Then Chairman. I see. Well would it be appropriate
narrowing it down for the lawyer for the accused to ask the
accuser directly the questions?
Ms. Goss Graves. So that does happen in court settings with
tremendous safeguards that are definitely not in these school
proceedings.
The Chairman. Could you----
Ms. Goss Graves. Specially around--this is one of the
reasons why we have the range of rape shield laws. The range of
meaningful training for everyone from judges to attorneys to
police around how to ask questions in these settings. How to do
it in a way that is frankly trauma-informed, and that does not
rely on rape myths about, what were you doing, what were you
wearing, why were you drinking, that are blaming victims for
what they have experienced.
The Chairman. Ms. Hamill, going back to you and then I will
go to Senator--well, I have one other question, but it will
still be your view that be properly defended, an accused person
in a sexual assault hearing on campus would need to be allowed
to have his or her lawyer directly ask questions of the
accuser. Is that right?
Ms. Hamill. I do think so, and I think that advisers could.
It does not always have to be a lawyer, you could have advisers
who are trained on campus to advocate for the students in these
proceedings, but to have an advocate be asking those questions,
and then you have the protections of a partition or closed
circuit, TV, or anything like that can make the process easier
frankly for both parties.
The Chairman. Okay. And my last. Ms. Meehan, Senator Kaine
used the word should have known, what a campus should have
known in thinking about what responsibilities a campus, an
institution has to follow-up on something. Does your community
have any comment about should have known? That could be a broad
responsibility for somebody, but what are the limits on that,
knowing about--having a designated person be informed of a
sexual assault promptly, specifically, that is one thing. That
is knowing about it. For anybody on the campus to be saddled
with the idea of should have known of something, that is
another thing. What comment would you have on that?
Ms. Meehan. Yes. I mean, it can be hard for campuses to be
aware. Some campuses have thousands of employees, and to be
aware of what all of them know can be a difficult thing, but
obviously I think the focus, the proposed rule, does make clear
that one of the people you can report to is the Title IX
coordinator. And there have been a lot of efforts to try to
make sure that all survivors know that is the person that they
can go to on their campus to start a process to get supportive
services and so on.
The Chairman. Okay. Senator Murray, and then we will
conclude.
Senator Murray.
Senator Murray. Yes. I just, I want to go back to the
question you were asking before this about this semi-court kind
of thing that the rule requires, and I want to make it clear.
Ms. Graves let me ask you. The ruling or the rules that
Secretary DeVos has put out would allow or require actually for
somebody to submit to live examination, and it could be by a
live examination by a friend or a coach or their dad. Correct?
Ms. Goss Graves. That is correct.
Senator Murray. That is what we find objectionable with her
rules.
Ms. Goss Graves. That is right.
Senator Murray. Dr. Howard talked about allowing someone to
choose that. Would her rules allow you to choose it or not, to
choose a live?
Ms. Goss Graves. Well, so there is nothing that prevents
people from opting into that type of process. Her rules would
mandate it. It would require it.
Senator Murray. Okay. I just want to make that clear. I
also want to ask, reporting in sexual harassment is really
difficult and students often do not believe their school is
going to handle the issue correctly, with seriousness and
sensitivity. They worry about backlash from teachers, peers,
friends, whoever else was at the party. And that I think is, we
have to really understand that. I think we have to make it
easier to report sexual harassment, not make it harder. And
that is what I fear Secretary DeVos's proposed 10 line rule
would do when it only require schools to respond to reports of
campus sexual assault that were made specifically to a very
small group of campus officials. I am doubting most kids know
who their Title IX coordinator is.
I would think that survivors would reasonably expect
schools to respond if they report to their college professor,
for example, or their adviser, or their coach, or some other
trusted adult, but DeVos's proposed rule actually would not
require schools to take those actions seriously if you said it
to your professor or someone that you felt was the person the
you should report to. So, Ms. Graves, let me ask you, what do
you think is the appropriate expectation for schools'
responses? In what situations should schools be responsible for
responding to reports of sexual harassment?
Ms. Goss Graves. The reason the standard is knew or should
have known is to discourage schools from burying their heads in
the sand from the sorts of harassment and violence that they
kind of know about and could be preventing and getting ahead of
it. So, if you are telling someone, if you have told your
professor, or your RA, or the person who you see in a position
of authority to you, many students are going to expect that
person will do something important with that information.
Senator Murray. Right. Ms. Gersen, do you want to comment
on that at all?
Ms. Gersen. Yes. I do think that this is a tricky thing for
schools because they have to be clear about which people within
their structure, which employees, are designated as people who
will be expected to report. And so, some schools, such as the
university I teach at, has a kind of mandatory reporter role
for professors such as myself. So, if I hear about an incident,
I have the obligation to report it according to the school
rules. And so, I think that is one of the things that helps
schools understand what the lines of authority are, and as long
as those things are clear, then you can have a rule that says
knows or should have known that does not impose too much of an
undue burden on schools.
Senator Murray. Okay. Thank you. Thank you to all of you
for your testimony. And obviously this is an issue we are going
to continue to grapple with, and we will have more questions,
but appreciate all of them. Mr. Chairman, I would like to
request unanimous consent to enter into the record letters from
psychologist, survivors and families, advocates, and more than
90 law professors presenting their views about what makes a
fair process for responding to campus sexual assault and
violence.
[The following information can be found on page 93 in
Additional Material:]
The Chairman. Thank you, Senator Murray. And Ms. Meehan, I
wish you would, on Senator Murray's last question, if you could
follow-up with that on the points of view of the universities.
I think, as Ms. Gersen says, that is tricky. These are serious
accusations and if you are going to be responsible for a campus
of 35,000 people, of any sort of should have known
responsibility, that too is tricky. So, I would be interested
in what the campuses themselves think about that.
Thanks to each of you. I hope you will let us know any
thoughts you have about after you go home and say, I wish I
would have said x, or somebody said y, and I should have said
z. It would be helpful to us to have that. We sometimes have
follow-up letters, they do not have to be long, that says
please do this. You can see we are dealing with a fairly small
number of issues, actually, and some of them may be something
we can address, a couple of them are hard to agree on, but this
has been very, very helpful.
I hope you would allow us or our staffs to call on you over
the next couple of months if we get into further discussions on
the Committee and need your advice or your comment about
language that we may be writing. The hearing record will remain
open for 10 days. Members may submit additional information
within that time if they would like.
The Chairman. Our Committee will meet again on Wednesday,
April 10 for another hearing on higher education. Thank you for
being here. We will stand adjourned.
ADDITIONAL MATERIAL
Comment from 93 Law Professors Regarding Proposed Rulemaking
Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance Office of Civil
Rights, Department of Education
This proposed rulemaking with regard to the treatment of sexual
harassment under Title IX raises a wide range of substantive problems;
many of its provisions obstruct, rather than effectuate Title IX, and
rest on inaccurate descriptions of relevant Supreme Court decisions or
exceed the regulatory authority of the Department. This comment raises
a distinct type of objection to the proposed regulation: that in a
large number of important respects the proposal is so unclear as to
provide insufficient guidance to recipients about their new
obligations, to victims and alleged harassers regarding their rights
and responsibilities, and to the public as a whole as to what is being
proposed.
Because Title IX, which is the basis of the Department's rulemaking
authority, is spending clause legislation, it is essential that any
regulation make clear to recipients what obligations they are assuming
if they accept federal financial assistance. Rather than regulating
schools or other educational institutions broadly, Title IX instead
requires institutions which accept federal educational assistance to
agree to comply with specific conditions that are attached to that
funding. The requirement of clarity is not controversial; indeed, the
NPRM itself notes that recipients are entitled to clear notice of their
obligations under Title IX. The NPRM relies on this principle for its
requirement that a recipient need not do anything at all about specific
instances of sexual harassment until and unless the appropriate
official gets certain specific information about that harassment. But
in many respects the proposed regulation itself creates confusion
instead of clarity. Its newly devised, inter-related provisions pose a
large number of novel questions regarding what a recipient would have
to do if the regulation were finalized. As proposed, these provisions
make it impossible for even experienced attorneys to advise a recipient
on its compliance with Title IX with any confidence regarding what the
answers to those questions may be or what the recipient would be
obligated to do if it accepts federal financial assistance. That
uncertainty is particularly serious because the Department is proposing
to issue regulations, rather than issue a less formal and less binding
guidance.
Clarity is especially important because of the contentious nature
of sexual harassment claims. Complainants and respondents usually have
a substantial personal stake in any report of sexual harassment that a
recipient addresses. Whatever a recipient does, either the complainant
or the respondent is likely to object or challenge, and complainants
and respondents alike have with significant frequency sued recipients
because of the manner in which a sexual harassment complaint was
handled. In this context, uncertainty about the meaning of a Title IX
regulation is certain to provoke increased and more intractable
litigation. When an ambiguous provision bears on a recipient's action
in a particular case, the party unhappy with the outcome has every
reason to focus on that provision and to argue that the recipient's
action was inconsistent with the correct interpretation. Uncertainty
about the meaning of applicable regulations will significantly increase
the grounds on which potential plaintiffs and their attorneys will see
a basis for litigation, and will multiply the issues in those cases.
Clarity is also essential because the Department proposes to issue
binding and highly specific regulations, rather than more generally
phrased Guidelines. Past experience with earlier guidances demonstrates
the great difficulty in framing standards whose meaning would be clear,
and sensible, in the wide variety of circumstances in which sexual
harassment, and sexual harassment complaints, can arise. Because of the
binding and specific nature of the proposed regulation, uncertainty
about the meaning of each word and phrase, and about the inter-
relationship of provisions, can be highly problematic. This ill-
considered approach denies recipients flexibility in applying broadly
framed guidelines to unforeseen situations and replaces that freedom
with vexing issues of construction. Because much of this regulatory
scheme has been made up out of whole cloth, the Department has no body
of experience illustrating the practical questions that have arisen out
of similarly schemes.
Clarity is vital to sexual harassment victims and students accused
of sexual harassment as well. In the past, although some institutions
have made earnest efforts to prevent and correct sexual harassment,
other schools turned a blind eye to sexual harassment, looking for ways
to avoid taking serious action, or even any action, on a complaint, and
in some instances ignoring pervasive ongoing sexual misconduct. Others
have found it difficult to find the resources to learn about what Title
IX requires and to adjust their policies, procedures, services, and
prevention programs in a manner that both complies with their Title IX
obligations and responds to their institution's and community's needs
related to this harassment. This history, both recent and longstanding,
has led some schools to fail to comply with Title IX in ways that harm
both victims and accused students. Because the proposed regulations
could be interpreted to forbid some steps to prevent and correct sexual
harassment, those officials who would prefer to do as little as
possible about sexual harassment will be able to find language
throughout these proposals that could be construed as providing a
federally-endorsed excuse for inaction. More importantly, the larger
group of institutions that have relatively recently devoted significant
resources to understanding and meeting their obligations under Title
IX--in some cases making and correcting errors along the way that
harmed both victims and accused students--will have to redo almost all
of that work to adjust to a new legal landscape that not only is
drastically changed but also lacks clarity. The lack of clarity, in
particular, will virtually guarantee that such institutions will make
even more costly errors, potentially harming accused students, student
victims, or both, as they struggle to understand and adjust to these
shifting regulatory sands.
Uncertainty about the meaning of the proposed regulations has also
seriously undermined the notice and comment process. At recipient
institutions, lawyers and non-lawyers alike are struggling to
understand what their schools would be required, forbidden, and
permitted to do under the proposal. They are finding it difficult to
comment on the proposed regulations except in general terms because
many specific details are unclear. Neither recipients nor any other
interested parties should be asked to imagine all the possible meanings
of dozens of inter-related provisions, and then offer comments on each
hypothetical and combination of hypotheticals.
We set out below 80 material questions that we have been able to
identify about specific provisions in the proposed regulation. It may
well be that the Department never thought about some of these issues
when it issued the proposal; that would, in a sense, be understandable
because it appears that this entire regulatory scheme was created out
of whole cloth, with little evidence of experience regarding how a
particular provision might work in practice, how provisions would
inter-relate, or what particular terms would mean in the real world.
Provisions with wording that seems straightforward in the abstract are
often vexingly unclear when read in light of the wide variety of
problems of sexual harassment that actually occur at educational
institutions, and of the manner in which those institutions address
other types of misconduct. The time for the Department to figure all
this out is before the regulation is promulgated, indeed, it is before
the public is asked to comment on the proposal.
Questions Regarding The Meaning of The Proposed Regulation
Program and Activity
(1) If a victim is sexually assaulted by a fellow student
outside of a recipient's education program or activity, but the
accused rapist's subsequent presence in that program or
activity (e.g., on campus) creates a hostile environment in the
program or activity that effectively denies the victim equal
access to the education program or activity, does that
combination of circumstances constitute ``sexual harassment in
an education program or activity'' under sections 106.44(a),
106.44(b)(4) and 106.45(b)(3)?
(2) If a victim is sexually assaulted by a fellow student
outside of a recipient's education program or activity, and the
victim is thereafter, in the program or activity, taunted or
otherwise harassed with regard to that assault, must the
recipient take into account the earlier sexual assault in
determining whether the harassment effectively denied the
victim equal access to the program or activity and thus
constituted sexual harassment, as defined in section 106.30, in
that program or activity under sections 106.44(a) and
106.44(b)(4) and 106.45(b)(3)?
(3) If a recipient ordinarily exercises disciplinary power over
student misconduct outside a program or activity, may the
recipient decline to do so if the misconduct is sexual
harassment, or would making such a gender-based exception
constitute discrimination on the basis of sex in violation of
section 106.31 and/or Title IX itself? For example, if under
its student code a recipient would punish a student for
assaulting another student outside a program or activity, may
the recipient ignore student-on-student sexual assault outside
its education program or activity?
(4) If a recipient chooses to address a complaint involving
sexual harassment that did not occur in a program or activity,
do the proposed regulations impose any standards or procedures
to be followed in doing so? If so, what are those standards
and/or procedures?
(5) Title IX forbids discrimination ``under'' an education
program or activity. Sections 106.44(a) and 106.44(b)(2) refer
to sexual harassment ``in'' an education program or activity,
and section 106.45(b)(3) refers to sexual harassment ``within''
a program or activity. Do ``in'' and ``within'' in those
proposed sections mean something different than ``under'' in
Title IX, and if so what is the difference in meaning?
(6) Title IX forbids ``discrimination'' under an education
program or activity. Sections 106.44(a) and 106.44(b)(2) refer
to ``sexual harassment'' in an education program or activity.
If sexual harassment occurred outside an education program or
activity, but resulted in discrimination under the education
program or activity, would a recipient be required to respond
to that situation?
(7) Under Title IX an individual may not be ``excluded'' from a
federally assisted program or activity on the basis of gender.
If a recipient knows that sexual harassment which did not occur
``in'' its education program or activity nonetheless
effectively excludes the victim from equal access to that
program or activity, is the recipient required to respond?
Sexual Harassment and Equal Access
(8) If a recipient chooses to address a complaint involving
unwelcome conduct on the basis of sex that did not effectively
deny the complainant equal access to the recipient's education
program or activity, and that is not otherwise ``sexual
harassment' as defined in section 106.30, do the proposed
regulations impose any standards or procedures to be followed
in doing so? If so, what are those standards and/or procedures?
(9) If a recipient exercises disciplinary power over student
misconduct that does not affect the complainant's access to its
program or activity, may the recipient decline to do so for
sexual harassment, or would making such a gender-based
exception constitute discrimination on the basis of sex in
violation of section 106.31 or Title IX itself? For example, if
under its student code a recipient would punish a student for
harassing another student even if the harassment did not affect
access, may the recipient refuse to respond to sexual
harassment unless it affects equal access?
Quid Pro Quo Harassment
(10) Under section 106.30 an employee ``conditioning the
provision of an aid, benefit, or service of the recipient on an
individuals' participation in unwelcome sexual conduct'' is
sexual harassment per se, regardless of whether or not it
effectively denied that individual equal access to the
recipient's education program or activity. Does
``conditioning'' in section 106.30 mean
(a) only an express quid pro quo demand,
(b) a subjective intent on the part of the employee to deny the
aid, etc., if the individual refuses to participate, even if
not communicated at the time,
(c) action by the employee which the individual reasonably
perceived to contain a threat of denial of an aid, etc., and/or
(d) withholding an aid, benefit or service because an
individual declined to participate in unwelcome sexual conduct?
Retaliation
(11) Does the act of retaliating against an individual because
he or she declined to participate in or objected to unwelcome
conduct on the basis of sex constitute misconduct to which a
recipient must respond because that retaliation itself would
constitute unwelcome conduct on the basis of sex under section
106.30, e.g. in light of Jackson v. Birmingham Bd. of Ed., 544
U.S. 167 (2005)?
(12) If a recipient has a policy forbidding false statements in
connection with an investigation, section 106.45(b)(2)(i)(B)
requires that the policy to be disclosed to the complainant and
respondent. If a recipient has a policy forbidding retaliation
against an individual for reporting or filing a formal
complaint about sexual harassment, or for providing information
in connection with an investigation of sexual harassment, what,
if any, is the recipient's duty to disclose this policy? Would
it be inconsistent with the requirement of ``equitable''
treatment in section 106.8(c) and 106.45(b)(1)(i) for the
recipient to fail to disclose that policy?
(13) How does the limitations under section 106.45(b)(3)(iii),
that prohibits a recipient from restricting ``the ability of
either party to discuss the allegations under investigation or
to gather and present relevant evidence'' interrelate to the
obligation to prevent and address retaliation? For example, may
a respondent have a private investigator speak to large numbers
of campus community members to obtain information about his or
her sexual history?
Knowledge by A Person With Authority To Institute Corrective
Measures
(14) If a recipient has actual knowledge that a student or
employee has been subjected to unwelcome conduct on the basis
of sex, or of an allegation of such misconduct, but does not
know whether or not the misconduct effectively denied the
victim equal access to the recipient's education program or
activity, must the recipient respond under sections 106.44(a)
and 106.44(b)(4), at least to seek the missing information? If
the recipient need not and chooses not to respond to that
unwelcome conduct or an allegation thereof, does the respondent
have an obligation to inform the complainant of the nature of
the missing and needed additional information regarding denial
of equal access?
(15) If a recipient has actual knowledge that a student or
employee has been subjected to sexual harassment as defined in
section 106.30, but does not know whether or not the sexual
harassment occurred in the recipient's education program or
activity, must the recipient respond under sections 106.44(a)
and 106.44(b)(2), at least to seek the missing information? If
the recipient need not and chooses not to respond to that
sexual harassment or an allegation thereof, does the recipient
have an obligation to inform the complainant of the nature of
the missing and needed additional information regarding whether
the sexual harassment occurred in its educational program or
activity?
(16) Is a recipient required to notify employees and students,
in light of the definition of recipient in section 106.30, that
it is not obligated to address sexual harassment in its
education program or activity if the harassment is only
reported to a person who lacks authority to institute
corrective measures?
(17) Must a recipient notify employees and students as to the
identity of the persons who have authority to institute
corrective measures within the meaning of section 106.30?
(18) Is a recipient required to notify employees and students
when a person to whom they could ordinarily take complaints,
such as a dormitory resident adviser, a coach or a counselor,
is not a person with authority to institute corrective measures
under section 106.30?
(19) Must a recipient direct any of its employees who have
knowledge of what could be sexual harassment (or an allegation
thereof), but who are not themselves persons with the authority
to institute corrective measures, to notify (in the absence of
a request for confidentiality) a person who does have authority
to institute corrective measures? If so, which employees must
be so directed?
(20) Under section 106.8(c), which requires that a recipient
notify students and employees regarding how to report sex
discrimination and how to file a complaint of sex
discrimination, must the person to whom reports or complaints
are to be made be a person with authority to institute
corrective measures within the meaning of section 106.30?
Informal Resolution
(21) If a recipient is required only to provide the ``parties''
with written notice regarding the informal process, would
parties mean the complainant and respondent as defined by
section 106.44(e)(2) & (3) only? If so, what if one or both of
the complainant and respondent is a minor or person who is
legally incompetent? Would parents and/or guardians get such
notice as required under Sec. 106.45(6)?
Formal Complaint
(22) If an individual makes a complaint that is not a formal
complaint as defined in section 106.30, because it is an oral
complaint or an unsigned written complaint, and the recipient
declines to treat it as a formal complaint, would it be clearly
unreasonable under section 106.44(a) and 106.44(b)(4) for a
recipient to fail to notify the complainant that it is
declining to do so, or to fail to notify the complainant as to
what additional action the complainant must take to file a
formal complaint?
(23) Does the duty in section 106.44(a) and 106.44(b)(4) to not
respond with deliberate indifference require a recipient to
advise a complainant that the handling of a complaint will be
subject to different requirements, procedures or standards
depending on whether or not the complaint is written and
signed, and thus a formal complaint governed by section 106.45,
or a non-formal complaint subject only to the general
requirement in section 106.44(a) and 106.44(b)(4) that the
recipient not act with deliberate indifference? If so, to what
extent must the recipient explain the differences in
procedures? If such notification is not required, is it
permissible?
(24) If a written and signed complaint alleges sexual
harassment in the recipient's education program or activity,
but does not specifically request initiation of the recipient's
grievance procedures as required by the definition of formal
complaint in section 106.30, and the recipient declines to
treat it as a formal complaint, do sections 106.44(a) and
106.44(b)(4) require the recipient to notify the complainant
that it is doing so, and to notify the complainant as to what
additional language is needed to turn the complaint into a
formal complaint?
(25) If a recipient understands that individuals complaining
about sexual harassment are deterred from or uncomfortable
making signed written statements, must the recipient treat oral
complaints, or non-signed written complaints, as formal
complaints so long as they are made to the official to whom
formal complaints would be made?
(26) If an institution of higher education notifies a person
asserting sexual harassment that he or she can file a formal
complaint, and offers supportive measures as defined in section
106.30, must the institution notify that person that if he or
she accepts any supportive measure, the institution will under
section 106.44(b)(3) be absolved of any further responsibility
to address the asserted sexual harassment?
(27) Do sections 106.44(a) and 106.44(b)(4) forbid an employee
of a recipient from discouraging or delaying an individual from
filing a formal complaint or from otherwise reporting what
could be sexual harassment?
(28) If a person authorized to institute corrective measures
knows of sexual harassment (as defined in section 106.30), or
allegations or a report of such sexual harassment, in a
recipient's education program or activity, but no formal
complaint as defined in section 106.30 is filed, do the
regulations establish any standard regarding how the recipient
must respond other than the general requirement in sections
106.44(a) and 106.44(b)(4) that the response must not be
``deliberately indifferent''?
(29) If a student gives to a person authorized to institute
corrective measures a document alleging that he or she was
subjected to sexual harassment (as defined in section 106.30)
by a respondent about conduct within the recipient's education
program or activity and requesting initiation of the
recipient's grievance procedure consistent with section 106.45,
is the recipient required by section 106.44(a) or 106.44(b)(4)
to conduct an investigation?
(30) If a student makes a verbal report to a person authorized
to institute corrective measures alleging that he or she was
subjected to sexual harassment (as defined in section 106.30)
by a respondent about conduct within the recipient's education
program or activity and requesting initiation of the
recipient's grievance procedure consistent with section 106.45,
is the recipient required by section 106.44(a) or 106.44(b)(4)
to conduct an investigation?
Training
(31) Section 106.45(b)(1)(iii) requires that coordinators,
investigators, and decision-makers receive training on ``the
definition of sexual harassment.'' As used in this section,
does ``sexual harassment'' refer to
(a) sexual harassment as defined in section 106.30,
(b) sexual harassment as defined in ``the recipient's sexual
misconduct policy,'' which under section 106.45(b)(2)(i)(B) is
the standard about which the parties are notified, and which
under sections 106.45(b)(4)(ii)(A) and 106.45(b)(4)(ii)(D) is
the standard that the decision-maker applies, or
(c) both.
(32) If the scope of the sexual harassment forbidden by the
recipient's sexual misconduct policy is broader than the
definition of sexual harassment in section 106.30, must
coordinators, investigators and decision-makers be trained on
the narrower section 106.30 definition? If the scope of the
sexual harassment forbidden by the recipient's sexual
misconduct policy is broader than the definition of sexual
harassment in section 106.30, under what circumstances would a
coordinator, investigator or decision-maker apply the narrower
section 106.30 standard?
Mandatory Dismissal
(33) If, following the filing of a formal complaint, a
recipient concludes that a complainant is the victim of ongoing
unwelcome conduct on the basis of sex (for example, his or her
teacher on made several lewd remarks to the complainant) but
the conduct has not yet continued long enough to effectively
deny the victim equal access to the recipient's education
program or activity and thus constitute sexual harassment as
defined in section 106.30, is the recipient required, or
permitted, to dismiss the complaint under section 106.45(b)(3),
and to compel the victim to endure the continuing unwelcome
conduct on the basis of sex until it has reached the point at
which that misconduct effectively denies the victim equal
access to the recipient's program or activity, at which time a
new formal complaint could be filed and would be acted on?
(34) Prior to dismissing a formal complaint under section
106.45(b)(3), does the requirement in sections 106.b(c) and
106.45(b)(1)(i) that a recipient handle a complaint in an
``equitable'' manner, the requirement in sections 106.44(a) or
106.44(b)(4) that a recipient not act with deliberate
indifference, or the requirement in section 106.45(b)(1)(iii)
that officials be trained to ``ensure due process for all
parties,'' require that the recipient first
(a) notify the complainant that it is considering such a
dismissal,
(b) notify the complainant of the relevant standard regarding
the meaning of ``sexual harassment'' or ``in an education
program or activity,'' and/ or
(c) provide the complainant an opportunity to adduce argument
or evidence to show that dismissal would not be warranted under
those standards?
(35) If a recipient dismisses a complaint under section
106.45(b)(3), must the recipient provide the complainant with a
written explanation of that decision, including a statement of
any findings of fact supporting the decision?
(36) If a recipient permits a respondent to appeal a
determination of responsibility, must the respondent permit a
complainant to appeal a dismissal under section 106.45(b)(3),
and if so must the recipient notify the complainant of that
right?
(37) If whether a formal complaint is subject to dismissal
under section 106.45(b)(3) turns on a dispute of material fact,
must that dispute be resolved under the general standards and
procedures in section 106.45, or should or may the recipient
use some other standard and procedure?
(38) If a recipient, as required by section 106.45(b)(3),
dismisses a formal complaint because the conduct did not
constitute sexual harassment as defined in section 106.30, may
the recipient then entertain under its own code a new complaint
regarding the misconduct alleged, so long as that new complaint
is not a formal complaint as defined in section 106.30?
(39) If a recipient, as required by section 106.45(b)(3),
dismisses a formal complaint because the conduct did not occur
in an education program or activity, may the recipient then
entertain under its own code a new complaint regarding the
misconduct alleged?
(40) Sections 106.44(a) and (b)(1) refer to ``sexual
harassment'' in an education program or activity. Section
106.45(b)(3) refers to ``conduct'' in an education program or
activity. Title IX refers to ``discrimination'' in an education
program or activity. Do ``sexual harassment'' and ``conduct''
mean the same thing? Do they mean the same thing as
``discrimination''? For example, if a sexual assault outside
the education program or activity combined with the subsequent
presence of the perpetrator in the program or activity to
discriminate against the victim, would that be within the scope
of section 106.45(b)(3)?
Interim Protective Measures
(41) Do the proposed regulations in any way restrict what
interim measures a recipient may take with regard to sexual
harassment in an education program or activity prior to a
determination of responsibility at the conclusion of the
grievance process?
(42) Is a recipient barred (e.g. by section 106.44(d)) from
putting a student employee on administrative leave prior to a
determination of responsibility? If so,
(a) Does ``student'' include a regular employee who is taking
any class?
(b) Does ``student'' include a graduate student employee who
has completed all coursework and oral examinations, but still
has to complete his or her thesis or dissertation?
(c) Does this rule preclude consideration of a pending
complaint of sexual harassment, or a prior report of sexual
harassment that was not resolved on the merits, in determining
whether to hire a student as an employee or to renew his or her
appointment?
(d) Does this bar apply even though the school under its own
procedures might put a student employee on administrative leave
for misconduct other than sexual harassment?
(e) Does the bar apply to misconduct that is otherwise
outside the scope of the proposed regulations because the
unwelcome conduct on the basis of sex did not effectively deny
a person equal access to the recipient's education program or
activity and/or was not otherwise within the section 106.30
definition of sexual harassment?
(f) Does the bar apply to misconduct that is otherwise
outside the scope of the proposed regulations because the
sexual harassment did not occur in a program or activity?
(43) Is a recipient barred (e.g., by the definition of
supportive measures in section 106.30) from taking any
disciplinary action against a respondent for sexual harassment
in its education program or activity prior to a determination
of responsibility? If so:
(a) Does the bar apply to misconduct that is otherwise
outside the scope of the proposed regulations because the
unwelcome conduct on the basis of sex did not effectively deny
a person equal access to the recipient's education program or
activity and/or was not otherwise within the section 106.30
definition of sexual harassment?
(b) Does the bar apply to misconduct that is otherwise
outside the scope of the proposed regulations because the
sexual harassment did not occur in a program or activity?
(c) Does the bar apply to interim disciplinary action for
sexual harassment even though the recipient takes interim
disciplinary action for other conduct code violations?
(d) May a respondent challenge an interim facially non-
disciplinary action on the ground that the recipient's covert
motive for taking that action was to discipline the respondent?
(44) Do the proposed regulations in any way restrict what
interim measures a recipient may take with regard to sexual
harassment in an education program or activity prior to a
determination of responsibility at the conclusion of the
grievance process?
(45) Is a recipient barred (e.g., by section 106.44(c)) from
removing a respondent from its education program or activity on
an emergency basis for sexual harassment in that program or
activity unless that recipient determines that the respondent
poses an ``immediate threat'' to the health or safety of
students or employees? If so:
(a) What does ``safety'' mean, e.g., is it any crime? Could
it encompass non-criminal activity?
(b) What does ``health'' mean, e.g., would it include the
mental health of the complainant?
(c) What does ``immediate'' mean, e.g. must a recipient
afford a hearing to a removed respondent in a shorter period of
time (``immediate'') than the period of time within which the
recipient must afford a complainant a hearing (``reasonably
prompt'' under section 106.45(b)(1)(v))?
(d) Does the bar apply to misconduct that is otherwise
outside the scope of the proposed regulations because the
unwelcome conduct on the basis of sex did not effectively deny
a person equal access to the recipient's education program or
activity and/or was not otherwise within the section 106.30
definition of sexual harassment?
(e) Does the bar apply to misconduct that is otherwise
outside the scope of the proposed regulations because the
sexual harassment did not occur in a program or activity?
(f) Does the additional requirement that a post-removal
opportunity to challenge the removal be provided
``immediately'' mean that a removed alleged sexual harasser is
entitled to an opportunity to be heard in a shorter period of
time than the ``prompt'' time frame for acting on a complaint
by an alleged sexual harassment victim?
(46) Are recipients barred (e.g., by the definition of
supportive measure in section 106.30) from imposing interim
non-mutual no-contact orders (e.g., permitting a student to
contact a faculty member respondent, but not vice versa). If
so, does the bar apply to misconduct that is otherwise outside
the scope of the proposed regulations, because the unwelcome
conduct on the basis of sex did not effectively deny a person
equal access to the recipient's education program or activity
and/or was not otherwise within the section 106.30 definition
of sexual harassment, or because the sexual harassment was not
in the recipient's education program or activity?
(47) Is the presumption of non-responsibility in section
106.45(b)(1)(iv) and section 106.45(b)(2)(i)(B) conclusive
until there has been a determination regarding responsibility
at the conclusion of the grievance process, i.e. does it
preclude a recipient in deciding whether to provide some
interim protective measure from making a preliminary
determination of responsibility? If so, does that bar apply to
unwelcome conduct on the basis of sex that is not otherwise
within the scope of the proposed regulations because the
respondent's unwelcome conduct on the basis of sex that did not
effectively deny a person equal access to the recipient's
education program or activity and was not otherwise within the
section 106.30 definition of sexual harassment, or to sexual
harassment did not occur in a program or activity?
Clear and Convincing Evidence Standard
(48) In resolving a complaint of sexual harassment, does
section 106.45(b)(4)(i) permit a recipient to apply a clear and
convincing evidence standard even though the recipient instead
uses a less-demanding preponderance of the evidence standard
for
(a) all other student conduct code violations,
(b) all or some other complaints of harassment by students,
(c) all or some other complaints of discrimination by
students,
(d) all or some other conduct code violations by students
that carry the same maximum disciplinary sanction,
(e) a complaint that the individual who alleged sexual
harassment had made an inaccurate statement?
(49) Under section 106.45(b)(4)(i), a recipient may not use a
preponderance of the evidence standard unless it uses that
standard for ``conduct code violations that do not involve
sexual harassment but carry the same maximum disciplinary
sanction.'' Does this bar to the use of the preponderance
standard apply when a clear and convincing standard is used for
(a) all conduct code violations that carry the same maximum
disciplinary sanction,
(b) a majority of conduct code violations that carry the same
maximum disciplinary sanction,
(c) more than one but less than a majority of conduct code
violations that carry the same maximum disciplinary sanction,
or
(d) even a single other conduct code violation that does not
involve sexual harassment but carries the same maximum
disciplinary sanction?
(e) a penalty phase only (such as to impose expulsion), but
not for lesser penalties or to make findings of whether
misconduct occurred,
(f) student infractions that are governed under a separate
policy from the student conduct code (such as an honor code),
but not for misconduct governed by the student conduct code,
(g) student conduct code violations, but not for other forms
of discrimination and harassment by students?
(50) Does this bar apply to complaints about unwelcome sexual
conduct that are not otherwise within the scope of the proposed
regulation because the conduct was not sexual harassment as
defined in section 105.30, or because the sexual harassment did
not occur in the recipient's education program or activity?
(51) Under section 106.45(b)(4)(i), a recipient must ``apply
the same standard of evidence for complaints against students
as it does for complaints against employees.'' Is a recipient
required to use a clear and convincing standard for complaints
of sexual harassment by students if a clear and convincing
standard is applied to
(a) all complaints against employees,
(b) complaints against a majority of employees,
(c) complaints against even a single employee
(d) complaints about some but not all types of misconduct by
employees,
(e) a complaint about even a single type of misconduct,
(f) complaints about some forms of employee misconduct, but
not complaints alleging discrimination and/or harassment by
employees towards students,
(g) complaints about some forms of employee misconduct, but
not complaints alleging discrimination and/or harassment by
employees towards other employees,
(h) some, but not all, aspects of complaints against
employees (e.g., where the preponderance standard is used to
determine whether misconduct occurred, but a clear and
convincing standard is required for some forms of discipline
against a class of employees, such as revoking tenure for
tenured faculty)?
(52) Does the bar to applying a preponderance standard to
student sexual harassment unless the recipient uses that
standard for ``conduct code violations that do not involve
sexual harassment but carry the same maximum disciplinary
sanction'' apply to complaints about unwelcome sexual conduct
that is not otherwise within the scope of the proposed
regulation because the conduct was not sexual harassment as
defined in section 105.30, or because the sexual harassment did
not occur in the recipient's education program or activity?
Cross Examination and Questions Under Section 106.45(b)(3)(vi)
(53) Under section 106.45(b)(3)(vii), must a recipient permit
all cross-examination questions that are relevant and outside
the rape shield exclusion?
(54) Under section 106.45(b)(3)(vi), must a recipient ask all
questions proposed by a party that are relevant and outside the
rape shield exclusion?
(55) May a recipient bar a cross-examination question, or
refuse to ask a question posed by a party, on the ground that
it is misleading, e.g. that it assumes a fact not in evidence?
(56) May a recipient bar a cross-examination question, or
refuse to ask a question posed by a party, on the ground that
it is repetitive, e.g. the question has already been asked and
answered?
(57) May a recipient bar a cross-examination question, or
refuse to ask a question posed by a party, on the ground that
it seeks privileged information, e.g. that it asks a witness
what he or she told his or her attorney or his or her section
106.45(b)(3)(iv) advisor?
(58) May a recipient bar a cross-examination question, or
refuse to ask a question posed by a party, on the ground that
it is abusive?
(59) Under section 106.45(b)(3)(vii), a decision-maker may not
rely on any statement of a party or witness if the party or
witness ``does not submit to cross-examination'' at the
hearing. Does ``does not submit to cross-examination'' refer to
(a) a refusal to answer even a single question on cross
examination, a refusal to answer a significant number of cross-
examination questions, or only a refusal to answer all cross-
examination questions,
(b) all refusals to answer, or only to refusals based on
certain objections (e.g. self-incrimination) but not others
(e.g., privacy, attorney-client privilege)?
(60) If a recipient poses questions to a party or witness under
section 106.45(b)(3)(vi), and the party refuses to answer
(e.g., on grounds of self-incrimination), may the decision-
maker nonetheless rely on the statements of that party or
witness?
Duty of Recipient
(61) Under sections 106.44(a) and 106.44(b)(4), may a recipient
instruct its officials that, in responding to allegations of
sexual harassment in an education program or activity, they are
not required to make a diligent, good faith effort to identify
and correct any sexual harassment, but need only to act in a
manner that is not clearly unreasonable?
(62) Under sections 106.44(a) and 106.44(b)(4), may a recipient
instruct its officials that, in responding to a formal
complaint of sexual harassment, they may act in a manner that
is clearly unreasonable (e.g., in assessing the evidence), so
long as they comply with the procedural requirements of section
106.45 and thus fall into the safe harbor in section
106.44(b)(1) or section 106.44(b)(2)?
(63) Is sexual harassment (as defined in section 106.30) in an
education program or activity of the recipient by a student or
employee of the recipient against a person in the United States
a violation of either
(a) Title IX,
(b) any existing regulation, or
(c) the proposed regulation?
For example, if a college president told an applicant that she
would not be admitted unless she participated in unwelcome sexual
conduct, would that quid pro quo demand violate Title IX itself or an
existing or proposed regulation? Would the answer depend on whether the
victim acquiesced and was admitted, or refused and was rejected?
(64) Does intentional discrimination on the basis of sex by a
recipient in the manner in which it responds to a report or
complaint of sexual harassment violate the proposed regulation
(e.g. section 106.45(a)), an existing regulation, or Title IX
itself? If so, would the ``safe harbor'' in section
106.44(b)(1), section 106.44(b)(2), or section 106.44(b)(3) bar
such a claim?
(65) Does the duty of a recipient under sections 106.44(a) and
106.44(b)(4) to respond to sexual harassment in a manner that
is not clearly unreasonable apply to the decision-maker's
factual determination as to whether the respondent was
responsible for the alleged sexual harassment? If so, is that
duty inapplicable
(a) if the recipient follows the procedures in section 106.45
and thus falls within the safe harbor in section 106.44(b)(1)
or section 106.44(b)(2), or
(b) because of section 106.44(b)(5)?
(66) Does the duty of a recipient under sections 106.44(a) and
106.44(b)(4) to respond in a manner that is not clearly
unreasonable apply to the decision maker's determination
regarding whether, and in what manner, to discipline a
respondent whom the decision maker concludes is responsible for
sexual harassment. If so, is that duty inapplicable if the
recipient follows the procedures in section 106.45 and thus
falls within the safe harbor in section 106.44(b)(1) or section
106.44(b)(2)?
(67) Does the duty of a recipient under section 106.44(a) and
106.44(b)(4) to respond to sexual harassment in a manner that
is not clearly unreasonable include consideration of whether
the recipient's response may fail to protect individuals other
than the complainant from future sexual harassment? If so,
would the safe harbor in sections 106.44(b)(1), 106.44(b)(2) or
106.44(b)(3) apply even if the recipient, by failing to do more
than required by those sections, created a clearly unreasonable
risk of sexual harassment of others? For example, if a student
reported that she had been forcibly raped by a faculty member,
and then accepted a supportive measure and did not file a
formal complaint, could the institution be liable if it took no
further action and the faculty member then forcibly raped
another student?
Delays Regarding Formal Complaints
(68) Section 106.45(b)(1)(v) provides that the existence of
concurrent law enforcement activity may constitute good cause
to extend the timeframe for responding to a formal complaint,
e.g. suggesting that if law enforcement officials indicate that
they are about to make public material information regarding an
alleged sexual assault. May a recipient
(a) defer action on a formal complaint until the police close
a pending investigation,
(b) defer action on a formal complaint until the final
resolution of a pending criminal proceeding, or
(c) defer action because of concurrent law enforcement
activity even when there is no substantial reason to believe
that law enforcement will soon make public significant
information relevant to the formal complaint?
(69) Section 106.45(b)(1)(v) requires ``reasonably prompt time
frames for the conclusion of the grievance process.'' (Emphasis
added). Does this provision, or any other provision in the
proposed regulations, establish any standard regarding how long
a recipient may delay before initiating its grievance process
after it has received a formal complaint that ``request[s]
initiation of the recipient's grievance procedures'' (see the
definition of ``formal complaint'' in section 106.30)?
Harassment on Multiple Grounds
(70) If a formal complaint alleges that the complainant was
harassed both because of gender and because of some other
characteristic (e.g., repeatedly subject to an epithet that was
both misogynistic and racist, or abusive action with multiple
motives), does the mandatory dismissal provision in section
106.45(b)(3) require the recipient to dismiss that aspect of
the complaint asserting the non-gender aspect of the
harassment, and deal with the two aspects of the harassment in
separate proceedings?
(71) If not, in the investigation and resolution of that formal
complaint,
(a) would any requirement of clear and convincing evidence,
under section 106.45(b)(4), apply to the non-gender aspect of
the complaint,
(b) would any limitations on interim remedies apply to the
non-gender aspect of the complaint, or
(c) would the right of cross-examination, under section
106.45(b)(3)(vii), apply to the non-gender aspect of the
complaint?
Remedial Action by Recipient
(72) Section 106.45(b)(1)(i) requires that remedies ``must be
designed to restore or preserve access to the recipient's
program or activity.'' Is a recipient required to take any
remedial or other action if, when the determination of
responsibility is finally made, no action to restore or
preserve access is relevant because
(a) the student complainant has graduated,
(b) the student complainant has withdrawn from the school and
does not wish to return,
(c) the student complainant is no longer in a class with the
respondent teacher, or
(d) the employee-complainant has resigned and does not wish
to return?
(73) Does the word ``designed'' in section 106.45(b)(1)(i) and
section 106.45(b)(5), which provide that a remedy must be
``designed'' to restore or preserve the complainant's access to
the recipient's education program or activity, mean:
(a) that the remedy must objectively be reasonably likely to
restore or preserve such access, or
(b) that the decision-maker must have had a subjective intent
to restore or preserve such access, or
(c) both?
(74) Under section 106.45(b)(1)(i), so long as a remedy is
designed to restore or preserve access, or if no such
restorative or preservative action is warranted, are there any
circumstances in which a recipient is required to discipline
the respondent found responsible for the sexual harassment at
issue? If so, in what circumstances would that obligation
exist?
Appeals
(75) Section 106.45(b)(5) provides, regarding appeals:
In cases where there has been a finding of responsibility, although
a complainant may appeal on the ground that the remedies are not
designed to restore or preserve the complainant's access to the
recipient's education program or activity, a complainant is not
entitled to a particular sanction against the respondent.
May a complainant appeal the sanction imposed on the respondent,
other than on the ground that the sanction was not designed to restore
or preserve the complainant's access to the recipient's education
program or activity?
Remedial Action by OCR
(76) In response to a complaint from an individual asserting
that he or she was subject to sexual harassment in an
educational program or activity receiving federal financial
assistance, will the Assistant Secretary under section 106.3(a)
determine whether such sexual harassment occurred, or instead
determine only:
(a) whether the sexual harassment was known to a person with
the authority to institute corrective measures on behalf of the
recipient, or there was a formal complaint, and if so
(b) whether the recipient was within the safe harbor in
sections 106.44(b)(1), 106.44(b)(2), or 106.44(b)(3), and if
not
(c) whether
(i) the recipient's response to that knowledge was
deliberately indifferent, and
(ii) the recipient violated a procedural requirement in
section 106.45?
Required Reports
(77) Section 106.45(b)(7)(i)(A) requires that a recipient
maintain records of every ``sexual harassment investigation.''
(a) Does this include an investigation of unwelcome conduct
on the basis of sex that did not effectively deny the victim
equal access to the recipient's program or activity, and was
not otherwise sexual harassment within the meaning of section
106.30?
(b) Does this include an investigation of sexual harassment
that did not occur in the recipient's education program or
activity?
(78) Section 106.45(b)(7)(i)(A) requires that a recipient
maintain records of any actions taken ``in response'' to any
report or formal complaint of sexual harassment.
(a) Is a recipient required to maintain a record of a report
or formal complaint of sexual harassment if the recipient
failed to take any such action at all in response to that
report or formal complaint?
(b) Does this requirement apply only to reports or formal
complaints that were known at the time to an individual with
authority to institute corrective measures?
(c) Does this requirement include reports of responses to
allegations of unwelcome conduct on the basis of sex that were
not within the section 106.30 definition of sexual harassment,
or to reports of sexual harassment that was not within a
recipient's education program or activity?
Relationship to Title VII
(79) Is a recipient required to comply with a provision of the
regulation where doing so would, with regard to a pending or
potential Title VII claim by an employee of the recipient, (a)
impair its affirmative defense under Faragher v. City of Boca
Raton, 524 U.S. 775 (1998), and Ellerth v. Burlington
Industries, Inc, 524 U.S. 742 (1998), or (b) constitute or be
evidence of negligence in responding to sexual harassment?
Notification of Policy by Educational Institutions Controlled by
Religious Organizations
(80) Section 106.8(b)(1) requires all recipients to notify
applicants, students, employees and others ``that it does not
discriminate on the basis of sex in the education program or
activity that it operates, and that it is required by Title IX
and this part not to discriminate in such a manner.'' Section
106.12(a) states that ``[t]his part'' (presumably including
section 106.8(b)(1)) ``does not apply to an educational
institution which is controlled by a religious organization to
the extent application of this part would be consistent with
the religious tenets of such organization.'' Is an educational
institution within the scope of section 106.12(a) required to
(a) notify applicants, students, employees and others that it
does not discriminate on the basis of sex, even though that is
not true, or
(b) notify applicants, students, employees and others that it
does not discriminate on the basis of sex, except in
circumstances identified in that notification that are
permissible because of section 106.12(a)?
Concluding Remarks
We are convinced that this list, despite including 80 questions, is
incomplete. If these regulations are finalized in even close to their
proposed form, many more questions will arise the moment any
institution attempts to comply with them. The recent history of OCR
enforcement of Title IX regarding sexual harassment has been
characterized by educational institutions, especially at the post-
secondary level, asking so many compliance questions of OCR that in
only three years after issuing the 2011 Dear Colleague Letter on Sexual
Violence, OCR issued a 46-page ``Questions & Answers'' guidance
document addressing 52 of the most frequently asked questions. This
number of frequently asked questions was in response to a guidance
document that OCR itself made clear would not and could not be enforced
in the way that it could enforce regulations subject to notice and
comment. These proposed regulations would have the force of law in a
manner that neither the 2011 or 2014 guidance documents did, therefore
they need to be more clear, not less.
Signed on February 15, 2019, by:
(institutional affiliations provided for identification purposes
only)
Maryam Ahranjani, Assistant Professor of Law, University of New
Mexico
Susan Frelich Appleton, Lemma Barkeloo & Phoebe Couzins Professor
of Law, Washington University School of Law
Kelly Behre, Director, Family Protection Clinic, UC Davis School of
Law
Linda L. Berger, Family Foundation Professor of Law, UNLV
Stephanie Bornstein, Associate Professor of Law, University of
Florida Levin College of Law
Robin Boyle, Professor, Legal Writing, St. John's University School
of Law
Deborah L. Brake, Professor of Law, University of Pittsburgh School
of Law
Hannah Brenner, Associate Professor of Law, California Western
School of Law
Erin Buzuvis, Professor of Law, Western New England University
Nancy Chi Cantalupo, Associate Professor of Law, Barry University
Dwayne O. Andreas School of Law
June R Carbone, Professor of Law, University of Minnesota
Gilbert Paul Carrasco, Professor of Law, Willamette University
Kim D. Chanbonpin, Professor of Law, The John Marshall Law School
Marguerite Chapman, Professor Emerita of Law, University of Tulsa
J. Stephen Clark, Professor of Law, Albany Law School
Jessica A. Clarke, Professor of Law, Vanderbilt University Law
School
Thomas D. Cobb, Senior Lecturer, University of Washington School of
Law
David S. Cohen, Professor of Law, Drexel University Kline School of
Law
Kim Diana Connolly, Professor of Law and Vice Dean for Advocacy and
Experiential Learning, University at Buffalo School of Law
Bridget J. Crawford, James D. Hopkins Professor of Law, Elisabeth
Haub School of Law at Pace University
Mary Crossley, Professor of Law, University of Pittsburgh School of
Law
Michele Landis Dauber, Frederick I. Richman Professor of Law,
Stanford Law School
Susan L. DeJarnatt, Professor of Law, Temple University Beasley
School of Law
Michelle Madden Dempsey, Harold G. Reuschlein Scholar Chair and
Professor of Law, Villanova University School of Law
Greer Donley, Assistant Professor of Law, University of Pittsburgh
Law School
Margaret Drew, Associate Professor of Law, University of
Massachusetts School of Law
Laura L. Dunn, Adjunct, University of Maryland Carey School of Law
Kathleen Engel, Research Professor, Suffolk University Law School
Jeffrey M. Feldman, Affiliate Professor of Law, University of
Washington
Iva Johnson Ferrell, Associate Professor of Legal Methods, Widener
University Delaware Law School
Taylor Flynn, Professor of Law, Western New England University
School of Law
Sally Frank, Professor of Law, Drake University
Ann E. Freedman, Associate Professor of Law, Rutgers Law School
Charlotte Garden, Associate Professor, Seattle University School of
Law
Tianna Gibbs, Assistant Professor of Law, University of the
District of Columbia David A. Clarke School of Law
Brian Gilmore, Clinical Associate Professor of Law, Michigan State
University
Julie Goldscheid, Professor of Law, CUNY Law School
Josie M. Gough, Assistant Dean, Inclusion, Diversity and Equity,
Loyola University Chicago School of Law
Joanna L. Grossman, Endowed Chair in Women and Law & Professor of
Law, SMU Dedman School of Law
L. Camille Hebert, Carter C. Kissell Professor of Law, The Ohio
State University Moritz College of Law
Wes Henricksen, Assistant Professor of Law, Barry University School
of Law
Tanya Hernandez, Professor of Law, Fordham University School of Law
Kathy Hessler, Clinical Professor of Law, Lewis & Clark
Anne Sikes Hornsby, Professor of Clinical Legal Education, retired,
University of Alabama
Mary A. Hotchkiss, Principal Lecturer in Law, University of
Washington School of Law
Miranda Johnson, Clinical Professor of Law, Loyola University
Chicago School of Law
Marcy L. Karin, Jack & Lovell Olender Professor of Law, University
of the District of Columbia David A. Clarke School of Law
Susan King, Associate Professor, Legal Methods, Delaware Law
School, Widener University
Judith E. Koons, Professor of Law (retired), Barry University
School of Law
Minna Kotkin, Professor of Law, Brooklyn Law School
Daniela Kraiem, Practitioner in Residence, American University
Washington College of Law
Donna H. Lee, Professor of Law, CUNY School of Law
Mary A. Lynch, Kate Stoneman Chair in Law and Democracy, Albany Law
School
Catharine A MacKinnon, Professor of Law, University of Michigan,
Harvard Law long term visitor
Anna C. Mastroianni, Professor of Law, University of Washington
School of Law
Lisa A. Mazzie, Professor of Legal Writing, Marquette University
Law School
Marcia L. McCormick, Professor of Law and of Women's and Gender
Studies, Saint Louis University
Ann C. McGinley, William S. Boyd Professor of Law, University of
Nevada, Las Vegas, Boyd School of Law
Jessica Mindlin, Adjunct Professor of Law, Lewis and Clark Law
School
Laurie Morin, Professor of Law, UDC Law
Mary-Beth Moylan, Associate Dean for Experiential Learning,
University of the Pacific, McGeorge School of Law
Judith Olin, Assistant Clinical Professor, University at Buffalo
School of Law
Kathleen O'Neill, Professor Emerita of Law. University of
Washington School of Law
David B. Oppenheimer, Clinical Professor of Law, University of
California, Berkeley
Laura Padilla, Professor of Law, California Western School of Law
Cathren Page, Associate Professor of Law, Barry University School
of Law
Camille Pannu, Director, Aoki Water Justice Clinic, UC Davis School
of Law
Danielle Pelfrey Duryea, Clinical Visiting Assistant Professor of
Law, University at Buffalo--SUNY
Tamara Piety, Professor of Law, University of Tulsa College of Law
Beth S. Posner, Clinical Associate Professor of Law, University of
North Carolina
Deborah W. Post, Professor Emerita, Touro Law Center
Dana Raigrodski, Lecturer of Law, University of Washington School
of Law
Allie Robbins, Associate Professor of Law, CUNY School of Law
Florence Wagman Roisman, William F. Harvey Professor of Law and
Chancellor's Professor, Indiana University Robert H. McKinney School of
Law
Anibal Rosario Lebron, Assistant Professor of Lawyering Skills,
Howard University School of Law
Jennifer N. Rosen Valverde, Clinical Professor of Law, Rutgers
University School of Law
Merrick Rossein, Professor of Law, City University of New York
School of Law
Robin Runge, Professorial Lecturer in Law, The George Washington
University Law School
Eric Schnapper, Professor of Law, University of Washington
Antoinette Sedillo Lopez, Emerita Professor of Law, University of
New Mexico
Jodi L. Short, Hon. Roger J. Traynor Professor of Law, Hastings Law
Jana Singer, Jacob A. France Professor of Law, Emeritus, University
of Maryland Francis King Carey School of Law
Kathryn M Stanchi, Jack E. Feinberg Professor of Litigation, Temple
University Beasley School of Law
JoAnne Sweeny, Professor of Law, University of Louisville
Bonny L. Tavares, Assistant Professor, Temple University Beasley
School of Law
Kristen Tiscione, Professor of Law, Legal Practice, Georgetown
University Law Center
Enid Trucios-Haynes, Professor of Law, Louis D. Brandeis School of
Law, University of Louisville
Lea B. Vaughn, Professor of Law, University of Washington
Salma Waheedi, Lecturer on Law and Clinical Instructor, Harvard Law
School
Lu-in Wang, Professor of Law, University of Pittsburgh School of
Law
Merle H. Weiner, Philip H. Knight Professor of Law, University of
Oregon
Mark E. Wojcik, Professor of Law, The John Marshall Law School
Dwayne Kwaysee Wright, Visiting Assistant Professor, Savannah Law
School
______
Washington School of Law
University of Washington
March 27, 2019
Hon. Lamar Alexander, Chairman
Hon. Patty Murray, Ranking Member
U.S. Senate Committee on Health, Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC.
Dear Chairman Alexander, and Ranking Member Murray:
At the hearing to be held on April 2, 2019, the witnesses will
offer a variety of views about the wisdom and legality of the
regulations proposed by the Department of Education regarding the
manner in which educational institutions that receive federal financial
assistance should carry out their obligations under Title IX regarding
sexual harassment. The controversy regarding how educational
institutions should deal with sexual harassment is exceedingly complex,
and the efforts of any one administration to establish a detailed set
of standards is likely to be reassessed and altered by a subsequent
administration. The policy of Secretary DeVos is based, to a
significant degree, on her disapproval of the Title IX sexual
harassment guidance of the Obama administration, and there will
undoubtedly come a time when another Secretary of Education in turn
will disagree with the DeVos regulations, and will rescind or rewrite
them . Continuing alterations in federal standards will impose an
unreasonable burden on the affected educational institutions, and will
ill-serve the interests of complainants and respondents.
The Committee should explore ways in which a degree of stability
could be brought to this area of the law. Rather than leaving the
entire problem to regulation by the Department of Education, resulting
in regulations subject to redrafting with each change in
administration, the Committee should reassess the respective roles of
Congress, the Department of Education, and the courts in fashioning the
standards governing how an educational institution receiving federal
funds should address harassment of students, including but not limited
to harassment on the basis of sex, that violates federal law.
There are several fundamental issues which the Committee could
productively consider, and which the Committee might invite the
scheduled witnesses to address.
Should the constitutional due process standards be extended to
students at non-public schools receiving federal financial assistance
who are alleged to have engaged in harassment forbidden by federal law?
The Department of Education, and some of those who support the
proposed regulations, have argued that students facing disciplinary
action for alleged sexual harassment should be accorded due process.
Students at public colleges and universities, as well as at public
primary and secondary schools, already have a constitutional right to
due process before significant disciplinary action can be taken that
would interfere with their education. The Supreme Court has held that
students in state and local schools have a liberty interest in their
education, and that they can only be deprived of that interest in a
manner consistent with the Due Process Clause of section 1 of the
Fourteenth Amendment. Goss v. Lopez, 419 U.S. 565 (1975).
But the constitutional guarantee of due process does not ordinarily
apply to private institutions, even though they may receive substantial
federal or state financial assistance. See Rendell-Baker v. Kohn, 457
U.S. 830 (1982). The Fourteenth Amendment's guarantee of due process
forbids only the states (and their agencies and subdivisions), not
private institutions, to deprive any person of life, liberty or
property without due process of law. The Notice of Proposed Rulemaking
recounts that there are a number of cases in which courts found that
due process violations had occurred in proceedings against individuals
alleged to have engaged in sexual harassment, In fact, however, many of
these lawsuits did not constitutional due process at all; they were
suits against private colleges and universities, and were based, not on
the Fourteenth Amendment, but on contract claims or state law.
Respondents at such private schools must rely on contract and state law
claims precisely because they were not protected by the constitutional
due process standards. State laws on which respondents rely vary
widely, and the existence of a colorable contract claim would depend on
the rules and practices of particular institutions.
The proposed regulations seek to address this situation by
establishing a complex body of rules that would extend to respondents
at private (as well as public) institutions. It is far from clear that
the Department's authority to issue regulations ``to effectuate'' Title
IX encompasses the authority to create such rules. 20 U.S.C. Sec.
1682. And, unlike the constitutional guarantee that applies to students
in public institutions, the regulatory protections proposed by the
current administration could be modified or entirely rescinded by a
future administration, either because it disagreed with those
regulations or because it thought them outside the authority of the
Department.
The Committee should consider whether Congress should by statute
provide that students at private institutions facing disciplinary
action for conduct that violates federal law should be accorded the
procedural rights that under the Due Process Clause would apply to
students at public institutions. In that context, it would be
appropriate to consider whether such a statute should apply not only to
harassment forbidden by Title IX, but also to harassment forbidden by
Title VI and by section 504 of the Rehabilitation Act of 1973.
Should the Department of Education be forbidden to require that
students alleged to have engaged in harassment forbidden by federal law
be accorded special procedural rights greater than those provided to
other students under the constitutional due process standard?
Although the Department's justification for the proposed
regulations repeatedly refers to due process, the regulations go far
beyond what is required by the Due Process Clause itself. Under long-
established Supreme Court precedents, the Due Process Clause requires a
case-specific balancing of several factors, including the seriousness
of the misconduct, the magnitude of the proposed disciplinary action,
and the reliability of the procedures a school proposes to use. Mathews
v. Eldridge, 424 U.S. 319 (1976). ``The very nature of due process
negates any concept of inflexible procedures universally applicable to
every imaginable situation.'' Cafeteria Workers v. McElroy, 367 U.S.
886, 895 (1961). This flexible constitutional standard bears little
resemblance to the proposed rigid, one-size-fits-all regulatory scheme.
Some procedures in the proposed regulations would be required by the
Due Process Clause in some instances, but many would often not be
required, and some would never be. In the Notice of Proposed
Rulemaking, and in the Department's public statements, ``due process''
refers to the particular procedures personally favored by the current
Secretary, not to the constitutional standards.
The Committee should consider whether the Department should barred
from requiring more than what the Due Process Clause mandates, and from
requiring that educational institutions to accord to students alleged
to have engaged in sexual harassment special procedural rights that
would not be available (even if the Due Process Clause applied) to a
student charged with other types of misconduct. Under the proposed
regulations, for example, a student at a state school charged with
sexual assault would have a more protective set of procedural rights
than a student charged with other types of assault, with racial
harassment, or with cheating on a test. A state institution which made
such a gender-based distinction on its own initiative would be subject
to challenge under Title IX itself, and a federal requirement that it
do so would raise serious problems under the Equal Protection
requirement of the Fifth Amendment. Moreover, unlike a statutory
guarantee of constitutional due process, special procedural protections
under one administration for respondents in sexual harassment cases
could be replaced by a regulation with few if any protections for
respondents under another administration.
If federal protections for respondents were replaced by a statutory
guarantee of constitutional due process standards, the law would remain
stable despite changes in the administration. Article III courts, not
officials of the Executive Branch, are responsible for interpreting the
Constitution. The current dispute about whether respondents should be
accorded a right to cross examination, and if so under what conditions,
would be resolved by the courts, not through rulemaking, and the
resolution of that dispute would not change with the election results.
Should individuals who complain about harassment forbidden by
federal law be guaranteed procedural rights comparable to those
accorded to individuals alleged to have engaged in such harassment?
Although the Due Process Clause affords procedural rights to
respondents facing disciplinary action for sexual harassment (or any
other misconduct), the Clause does not (at least usually) provide
protections for the victims of sexual harassment. A respondent has a
constitutional right to due process when a school takes disciplinary
action (such as suspension or expulsion) that adversely affects his or
her liberty interest in an education; the courts, however, have not
generally recognized a comparably protected liberty interest on the
part of a complainant. Although a complainant might assert the he or
she had such a liberty interest if a school's failure to deal with
sexual harassment drove her out of the school, whether the courts would
so hold is far from clear.
Students who complain to their schools about sexual harassment are
too often denied the types of procedural protections that are accorded
to respondents. The scope and effectiveness of a purely regulatory
solution would necessarily vary with the policies of each
administration. Under section 106.45(b)(3) of the proposed regulations,
for example, a school could decide that a sexual harassment complaint
was not sufficiently serious, or not sufficiently connected with a
federally assisted program or activity, and summarily dismiss the
complaint, without first telling a complainant that dismissal was under
consideration or permitting him or her to address the proposed reason
for dismissal.
The Committee should consider whether this problem should be
addressed by expressly tying the level of procedural protections for
complainants to the level of procedural protections accorded to
respondents.
Should institutions receiving federal financial assistance be
required to exercise the same degree of care to protect students from
harassment forbidden by federal law as Title VII requires those
institutions to exercise to protect employees from unlawful harassment?
The controversy surrounding the proposed regulations has
highlighted an incongruous difference in the degree of protection from
sexual harassment accorded by federal law to employees of educational
institutions (including student-employees, such as teaching assistants
or research assistants) and to students at those same institutions.
Under the Supreme Court decisions in Faragher v. City of Boca
Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth,
524 U.S. 742 (1998), a school is required by Title VII to use
reasonable care to protect employees from sexual harassment. That
obligation includes both reasonable care to prevent sexual harassment,
and reasonable care to correct sexual harassment when it does occur.
Title VII applies to harassment by peers, as well as to harassment by a
supervisor. Under the Court's Title IX decisions in Gebser v. Lago
Vista Ind School Dist., 524 U.S. 724 (1998), and Davis v. Monroe Cty.
Bd. of Ed, 526 U.S. 629 (1999), on the other hand, a school may need to
do no more than avoid deliberate indifference with regard to reports of
sexual harassment. Although the exact scope of the duty to protect
students under Gebser and Davis is to some extent in dispute, it is
clearly less demanding than the duty to protect employees under
Faragher and Ellerth.
This distinction has practical consequences which are impossible to
justify as a matter of federal policy. If a college or university
receives a complaint that a professor sexually harassed a 30-year old
teaching assistant and an 18-year old freshman, the school has a far
greater incentive to protect the teaching assistant than the student.
If an elementary school receives a complaint that a teacher is sexually
harassing a 22 year-old student teacher, and a 12 year-old girl, the
school has a greater incentive to protect the student teacher, even
though the younger victim is clearly more vulnerable. If in such
situations both victims were to sue the school for failing to take
effective action to address the harassment, the outcome might be
different depending on whether the plaintiff was an employee or only a
student. A student who works in the school bookstore enjoys one level
of protection while in the store, and a lesser degree of protection
while in his or her dorm. A school faces potential liability if it
fails to take affirmative steps to prevent harassment student-on-
student harassment of a teaching assistant, but may not face liability
if it does nothing (until there is a complaint or some other report) to
prevent student-on-student harassment of a non-employee student.
Because this problem involves two separate federal statutes, it is
one which Congress is best able to address.
Yours sincerely,
Eric Schnapper
Professor of Law
______
Statement of Sen. Braun Submitted for the Record
Today's hearing shines a light on a very serious problem on college
campuses regarding sexual assault. Universities and colleges need to
provide a safe and supportive campus environment, while also ensuring
there is a secure system in place to provide victims of sexual assault
with the proper care following any incidents. As a society, we must
condemn and speak out about sexual violence, educate against such
behavior, and punish those who perpetrate it, all while ensuring due
process occurs, which is not mutually exclusive.
______
Hon, Betsy DeVos, Secretary of Education
U.S. Department of Education,
400 Maryland Avenue,
Washington, DC.
January 29, 2019
Dear Secretary DeVos:
I write to express my deep concern with the Department of
Education's new proposed rule for Title IX of the Education Amendments
Act of 1972 (Title IX). Title IX was established to ensure that
discrimination based on sex, including sexual harassment, would not
impede a student's right to education. It is intended to provide
crucial protections to all students and direct the response of schools
that receive federal funding to reports of sexual harassment and
assault. The proposed regulation serves to roll back important
processes and protections for survivors of sexual assault and violence,
posing a threat to student safety on campuses across the country and
possibly undermining the intent of Title IX. Thus, I urge you to
immediately reconsider the proposed regulation.
In September 2017, over 16,000 formal comments were submitted
during the comment period on deregulation. These demonstrated
overwhelming support for the Obama administration's 2011 and 2014 Title
IX guidance documents. Yet, ignoring the voices of survivors and
advocates, you chose to rescind these vital civil rights documents,
replacing them with interim guidance that left survivors and schools in
the lurch for over a year. As proposed, the Title IX rule weakens the
responsibility of schools to adequately respond to instances of sexual
harassment and assault.
Of particular concern, is the proposed regulation's narrowed
definition of sexual harassment to only include ``unwelcome conduct on
the basis of sex that is so severe, pervasive, and objectively
offensive that it effectively denies a person equal access to the
school's education program or activity; or sexual assault.'' In
accordance with this definition, students must wait and endure sexual
harassment up to the point of it severely impeding their education
before they may even file a complaint. This is counter to the intent of
Title IX to prevent cases of sexual harassment and assault from
escalating to the level of disrupting a student's education.
Additionally, under the proposed regulation, schools would only be
required to investigate complaints if a survivor reports to an
individual with the ``authority to institute corrective measures.''
However, the regulation does not require schools to make these
officials known to students, placing an undue burden on survivors to
seek out the appropriate person with whom to file a report. This
requirement will likely result in a decrease in the number of cases
investigated on campuses, further discouraging survivors from coming
forward with complaints. Similarly, by limiting the school's
responsibility to cases in which the alleged harassment must have
occurred within the school's own ``education program or activity'', the
proposed rule fails to protect students in most off-campus housing and
all incidences of online harassment. Narrowing the scope of
institutional responsibility to prevent and address instances of sexual
harassment and assault under Title IX will not reduce their occurrence.
Instead, survivors will have weakened protections and fewer recourses
to justice, resulting in diminished access to their right to education.
Overall, the entire proposed regulation undermines the original
intent of Title IX to ensure that discrimination based on sex,
including sexual harassment, does not impede a student's right to
education. I urge you to immediately reconsider the proposed Title IX
regulation.
Sincerely,
Hon. Tim Kaine
______
COMMONWEALTH OF VIRGINIA
STATE COUNCIL OF HIGHER EDUCATION FOR VIRGINIA
January 28, 2019
This memo is intended to provide formal comments pursuant to the
request for public comment on the U.S. Department of Education's draft
rules entitled, ``Nondiscrimination on the Basis of Sex in Education
Programs or Activities Receiving Federal Financial Assistance,'' as
published in the Federal Register on November 29, 2018.
The comments below on the proposed regulations are provided to the
U.S. Department of Education by the Sexual Violence Advisory Committee
(SVAC) of the State Council of Higher Education for Virginia (SCHEY).
SCHEY is the Commonwealth of Virginia's coordinating body for higher
education. In partnership with state and federal agencies,
organizations, and public and private institutions, SCHEY advocates for
best practices and accountability in advancing higher education in the
Commonwealth. The SVAC provides guidance on sexual violence policy,
response, and education in higher education to the state's policy
makers, legislators, other elected officials, and college and
university leaders. Membership is multi-disciplinary including
administrators from Title IX offices, student affairs, academic
affairs, human resources, and law enforcement, with counsel to
institutions serving as legal advisors.
The SVAC is grateful to the U.S. Department of Education for the
opportunity to provide comment and for the consideration of these and
the many other comments submitted.
Introduction
In 2015, at the conclusion of a statewide gubernatorial task force
and state legislation specific to campus sexual violence, SCHEY
established the SVAC with representation from two and four-year public
and private colleges and universities in Virginia. The Commonwealth
benefits from community colleges, single-sex institutions, institutions
ranging in size and type from small liberal arts colleges to large
research universities, schools located on rural and urban campuses,
highly resourced and under-resourced institutions, and Historically
Black Colleges and Universities. Meeting regularly, the SVAC identifies
programs, policies, training, and education opportunities to prevent
and respond to sexual violence within the Commonwealth's institutions
of higher education. The SVAC comments on the proposed regulations are
the result of discussions that included colleges and universities in
the Commonwealth who participated in meetings and discussions convened
by the SVAC. Not all institutional representatives to the SVAC chose to
participate.
The SVAC comments are categorized as follows: l. General Comments,
II. Response to Specific Proposed Regulations, III. Response to
Directed Questions, and IV. Cost and Implementation. In addition, the
SVAC prioritized specific concerns. These concerns are incorporated
throughout this document and included in comments on specific proposed
regulations and in response to the directed questions. These concerns
are:
Chilling effect of legalistic procedural
requirements;
Jurisdiction;
Regulation of perceived bias;
Mandatory live hearings;
Cross-examination in such live hearings;
Role of advisors throughout the investigation and
adjudication; and
Standard of proof.
Furthermore, of significant concern to the SVAC are the increased
costs likely to be associated with implementing the proposed
regulations. In particular, colleges and universities with limited
resources find daunting the possibility of having to implement these
requirements. These costs include: hiring specialized personnel (such
as advisors, hearing officers, and counsel), technology (including
software purchase and launch and technology for cross-examination in
hearings), the construction or renovation of space to allow for
simultaneous, screened-off hearings, dedicated advisors (for both
parties), training on implementation (for all involved, mediation/
informal processes, and faculty/staff/students), and costs associated
with increased documentation (including software purchase, launch, and
maintenance).
The Commonwealth's institutions of higher education are deeply
committed to responding effectively to reports of sexual harassment and
violence. In addition, all institutions are dedicated to fair and
equitable processes that protect the rights of all parties.
I. General Comments
The SVAC reviewed and discussed the proposed regulations in the
context of its goal to promote effective policies and procedures for
responding to reports of sexual violence keeping in mind the original
intentions of Title IX. Comments below highlight the possible impact on
institutions in Virginia and their ability to effectively prevent and
address sex discrimination so that no person is excluded from
participation in, denied the benefits of, or subject to sex
discrimination in the educational programs and activities of the
Commonwealth's colleges and universities. Of particular concern is the
degree to which the proposed regulations will have a ``chilling
effect'' on individuals seeking assistance. The inclusion of legalistic
procedures into conduct processes imports the adversarial nature of
court proceedings into institutional processes intended to be
educational. Rather than encouraging reports of sexual misconduct these
processes run the risk of serving as a barrier resulting in
institutional risk and an inability to preserve a safe and equitable
educational environment. General comments include over-arching concerns
with the understanding that each college and university within the
Commonwealth is unique in culture, history, mission, size, geographic
location and with access to varying levels of resources.
I. Autonomy of Institutions of Higher Education
The tradition of institutional autonomy in American higher
education mandates that each institution support student and employee
conduct and productivity within the context of the college or
university's mission and history. To this end, the comments below point
to ways in which the proposed regulations jeopardize institutional
culture.
Institutional policies and processes designed to
guide student and employee conduct are developed within the
mission, history, and legal contexts of the college or
university and in concert with state and federal law and each
institution's governance processes. Institutional policies and
practices are not ''one size fits all.'' An alternative would
be for the U.S. Department of Education (Department) to provide
expectations and guidelines, through technical assistance, for
adjudicating a case and allow institutions to create the
procedure that works within their culture.
Within each institution, students and employees have
distinct and separate processes for upholding and correcting
conduct. Institutional legal relationships and contracts are
distinct for students and for employees. The proposed
regulations appear to apply the same processes, including the
same standard of evidence, to both groups. Institutions must be
allowed to promulgate policy and processes that comply with
federal and state laws and regulations and simultaneously take
into account the unique legal and contractual relationships for
both students and employees. Directed question number three
seeks comment regarding anything in the proposed regulations
that will prove unworkable in the context of sexual harassment
by employees. Requiring the same standard of evidence for both
students and employees will prove unworkable for many
institutions in the country.
The proposed regulations jeopardize institutional
autonomy by dictating the manner in which processes are
administered. The inclusion of legalistic processes is not
appropriate for colleges and universities whose primary focus
for addressing misconduct is educational in nature.
Institutions should not be directed to conduct ``trial-like''
hearings as proposed in the regulations.
The prescriptive procedural requirements contained in
these regulations will cause institutions to be inconsistent
within different types of conduct/disciplinary related
procedures.
The proposed requirement that the institution will
only investigate and consider formal written and signed
complaints conflicts with an institution's commitment to a safe
learning and working environment. Institutions are committed to
preventing harm to the broader community and limiting the
circumstances under which an investigation can occur limits an
institution's ability to be responsive and proactive. An
institution will want to act when it learns of the possibility
of sexual violence in the absence of a signed formal complaint
made to the Title IX Coordinator.
Community colleges and other institutions enroll
students who are under the age of 18. In addition, many
institutions provide programs, host camps or other activities
aimed at youth. The regulations will require careful
consideration in terms of compliance with necessary laws,
regulations, and expectations for attending to the needs of
minors -whether they are students, or guests, of the
institution.
II. Virginia and Federal Law, Regulations, Processes and Proposed Title
IX Regulations
The proposed regulations challenge the ability of the
Commonwealth's institutions to administer policies and procedures
compliant with other federal and state laws and regulations. In
Virginia, institutions integrate compassionate, timely, and fair
processes with compliance with the Clery Act, the Violence Against
Women Act, the variety of Title IX compliance guidance offered since
2011, and legislation enacted in the Commonwealth of Virginia.
Potential Inconsistencies with the Code of Virginia
State law (Va. Code Sec. 23 .1-900) requires that
institutions make a notation on a student's academic transcript
if found responsible for sexual violence under that
institution's student conduct code OR if the student withdraws
while under investigation for a possible sexual misconduct
violation. The proposed regulations require a stated
presumption of innocence by the institution throughout
investigations, hearings, appeals, and sanctioning processes.
The requirement that institutions state a presumption of
innocence invites conflict with the state requirement that
institutions note on a transcript that a student has withdrawn
while under investigation for sexual misconduct and before the
completion of a hearing.
State law (Va. Code Sec. 23.1-806) requires that a
report of sexual violence that potentially rises to the level
of a felony be reported within 72 hours to the Commonwealth's
Attorney. The proposed regulations have the potential to
prevent timely notifications.
The proposed regulations create a conflict with the
state's definition of a responsible employee. The state,
following earlier Title IX guidance, has a definition that is
broader than the proposed ``one who has the authority to
institute corrective measures'' on behalf of the institution.
State law (Va. Code Sec. l 9.2-11.2) provides
victims of crime the right to nondisclosure of certain
information by law enforcement and other state entities. In
some circumstances, the proposed regulation requiring the
sharing of evidence might conflict with this requirement.
Virginia's Law Enforcement Officers Procedural
Guarantee Act (Sec. 9.1-500) outlines processes for the
investigation of law enforcement officers charged with
misconduct, including sexual harassment that might fall under
Title IX. The proposed regulations might conflict with the
provisions for investigating a campus law enforcement officer.
Potential Inconsistencies with Federal Laws and Regulations
Proposed regulations require access to records by the
parties. The Family Educational Rights and Privacy Act (FERPA)
and the Virginia Health Record Privacy Act (Va. Code Sec.
32.1-127 .1 :03) protect the confidentiality of student
records. The proposed regulations appear to offer access to
records by all parties at various, and undetermined, moments
during an investigation.
The proposed regulations conflict with mandates in
the amendments to the Clery Act from the Violence Against Women
Act. The on and off-campus discrepancies require clarification.
Other discrepancies between the proposed regulations, the Clery
Act and the Violence Against Women Act include the definition
of sexual assault, the role of stalking or relationship
violence as a violation of Title IX, and varying definitions of
individuals who have responsibilities for reporting within and
external to the institution.
The proposed regulations do not address the
complexities of facts that are frequently associated with
reports of harassment and/or sexual violence. For example,
additional behaviors might play a contributing role in setting
the context for sexual misconduct including alcohol violations,
stalking, relationship violence, assault, hazing, and hate
crimes.
The proposed regulations treat sexual harassment
policies differently than the processes used for allegations of
other types of discriminatory harassment such as race,
ethnicity, religion, disability, etc.
II. Comments on Specific Language in the Proposed Regulations
I. Recipient's response to sexual harassment (ProposedSec. 106.44)
A. Adoption of Supreme Court standards for sexual harassment
Proposed Section 106.44(a) General; Section 106.30
Comment: The proposed regulations should be modified to address two
areas. First, the ability of an institution to continue to apply its
existing policies and procedures to behaviors that are not subject to
the requirements of the proposed regulations. Second, the regulations
should address the ability of an institution to consider conduct about
which it is aware, but in which the complainant is not willing to sign
a formal complaint with the Title lX Coordinator.
B. Responding to formal complaints of sexual harassment; safe harbors
Proposed Section 106.44(b) Specific circumstances; Section 106.30
Comment: The requirement ``when a recipient has actual knowledge of
reports by multiple complainants of conduct by the same respondent that
could constitute sexual harassment, the Title IX Coordinator must file
a formal complaint'' raises several questions. First, what is meant by
the word ``multiple''? Are two complainants considered ``multiple''?
Second, the regulations do not provide guidance for the receipt of
multiple complaints (formal and informal) by the same complainant
against the same individual or an organized group of individuals.
Third, the regulations do not provide clarity on what the recipient's
action ought to be when in receipt of information regarding multiple
incidents (by single or multiple complainants). It is recommended that
the word ``must'' be changed to the word ``may'' to allow discretion by
the Title IX Coordinator where a formal complaint may not be warranted.
While creating a safe harbor for universities from the Department's
administrative enforcement, this particular safe harbor provision may
not assist institutions when individuals sue.
II. Grievance procedures for formal complaints of sexual harassment
(Proposed Sec. 106.45)
A. General requirements for grievance procedures
Proposed Section 106.45(b)(l)
Comment: The requirement ``that any individual designated by a
recipient as a coordinator, investigator, or decision-maker not have a
conflict of interest or bias for or against complainants or respondents
generally or an individual complainant or respondent'' is extremely
broad and impossible to implement. Based on this expansive rule, many
experienced professionals with expertise in the work associated with
responding to reports of sexual violence will be excluded from handling
cases even if they are objective. At many institutions, particularly
community colleges and others with limited resources, the same
professional may be required to administer several of the phases
associated with responding to a complaint. At these institutions, the
anti-bias requirement, as stated in the regulations, would preclude
some professionals from performing their job. Universities and colleges
currently partner with federal and state compliance agencies to
implement policies designed to support civil and productive conduct and
to maximize compliance. For example, institutions employ individuals,
accountable within and external to the institution, to serve as
internal auditors, research compliance officers, and health and safety
personnel.
B. Notice and investigation
Proposed Section 106.45(b)(3) Investigations of a formal complaint
Comment: Institutional jurisdictional problems are created by the
proposed regulations that limit investigations to complaints ``that
occur within the recipient's program or activity.'' Colleges and
universities are obligated to provide learning environments on and off-
campus, domestically, and abroad that protect the rights of students to
``equal access to the school's education program or activity.'' The
directive that a complaint must be dismissed if determined not to have
occurred within the institution's program or activity (and then moved
over to another area of student discipline) will result in multiple
concurrent processes with associated costs and potential delays and
will have an adverse impact on the complainant and the respondent. The
prescriptive documentation, notification, and hearing processes
outlined in the proposed regulations will result in extending the time
in which a case is resolved.
The proposed regulations require a live hearing, which is already
the practice of many Virginia institutions. However, some colleges and
universities successfully employ a single-investigator model or hybrid
model that combines a single investigator with a separate decision
maker or hearing panel, and appeals processes. Each institution is
committed to protecting the rights of their students with robust fact-
finding, hearing, and adjudication processes that are suited to their
institutional mission, resources, and educational objectives.
Under Sec. 106.45(b)(3)(vii), the proposed Title IX regulations
state, ``the Department has determined that at institutions of higher
education, where most parties and witnesses are adults, grievance
procedures must include live cross-examination at a hearing. Proposed
Sec. I 06.45 (b)(3)(vii) requires institutions to provide a live
hearing and to allow the parties' advisors to cross-examine the other
party and witnesses'' (Page #61476, Column #2, Paragraph #1).
Currently, some institutions utilize the single investigator or hybrid
model due to personnel constraints and to keep the emphasis on the
educational goals of disciplinary processes.
Mandatory live hearings for every formal Title IX investigation
place a significant burden on the administration and faculty of many
institutions. A single investigator model that would satisfy a number
of the proposed requirements could allow for questioning during the
initial investigation process. At the initiation of an investigation,
each party would be provided the oppo1tunity to question the other
party or any witnesses through questions submitted to the
investigators. This practice would satisfy the requirement for a cross
examination process expressed in Sec. I 06.45. In addition, once the
decision-maker has made a ruling on the initial finding and
recommendations of the investigation this single investigator model
could offer an appeal process that includes a live hearing open to all
the parties. Each party can choose to appeal the initial decision based
on numerous grounds to include: the investigators exhibited unfair bias
which influenced the results of the investigation; new evidence,
unavailable at the time of the investigation, that could substantially
impact the investigators' finding; error in the conduct of the
investigation that is of such magnitude as to deny fundamental
fairness; insufficient evidence to support the findings of the
investigator; or the sanctions recommended by the investigators are
substantially outside the parameters or guidelines set by the
institution for this type of offense. This live hearing would include
questioning of all parties and witnesses, as well as, providing other
relevant evidence to the hearing panel. At the conclusion of the live
appeal hearing, the hearing panel would make an independent
recommendation to the decisionmaker concerning the findings in the
case. This live appeal hearing process would also satisfy the
requirement expressed in Sec. 106.45 above while allowing institutions
the flexibility of utilizing the single investigator model.
Institutions of higher education must retain the autonomy to choose to
use the single investigator model as long as that model allows for a
cross examination process during the initial investigative phase and
also allows for a live appeal hearing which could be utilized by all
parties if they so choose.
The proposed regulations identify advisors to the complainant and
respondent as active participants in the process when engaging in cross
examination in hearings. The proposed regulations set up an untenable
conflict by requiring that institutions bear the responsibility for
providing advisors to parties in Title IX processes who have chosen not
to have an advisor for other purposes. First, to preserve equity and
fairness throughout its conduct system, the institution would be
required to provide advisors for parties in all types of misconduct
processes: those that involve sexual misconduct and those that do not.
Second, by engaging in identifying, training, and supporting advisors,
the institution is subjected to questions of neutrality and
impartiality. Third, by requiring that advisors engage in cross
examination, the proposed regulations conflate the role of an advisor
with the role of an advocate. Fourth, when an employee serves a student
as an advisor, the college or university is exposed to liability.
The protections afforded by cross examination are appropriate for
adversarial processes but not for educational/administrative processes.
The injection of some legal elements like cross-examination without
checks in place, such as the Rules of Evidence, leaves those subject to
cross-examination (both respondents and complainants) open to
potentially harassing lines of questioning. The stated justification
for requiring cross-examination by advisors and not the parties is to
avoid re-traumatize the complainant, but the proposed regulations
require advisors to conduct cross-examination not just of the
complainant but also of the respondent and all witnesses. This is
unnecessarily broad and will result in a needlessly adversarial process
and takes the focus away from the educational nature of what
institutions are trying to accomplish.
Respondents, complainants, and witnesses will be subject to cross-
examination also, and will be required to speak or their testimony
cannot be considered. There is no flexibility under these proposed
regulations. This would effectively deny the respondent the right to
remain silent afforded by the U.S. Constitution. A respondent may be
forced to self-incriminate in the administrative hearing, which could
be used in a criminal proceeding. Additionally, institutions do not
have the authority to subpoena witnesses. We can encourage students/
employees to attend but have no ability to compel participation.
The requirement that ``If a party does not have an advisor present
at the hearing, the recipient must provide that party an advisor
aligned with that party to conduct cross-examination,'' poses several
additional questions and concerns. If one party has an attorney, it is
unclear whether an institution is required to provide an attorney of
the same caliber to the party needing an advisor. This proposed
regulation raises the concern that individuals will expect institutions
to pay for the advisor. In addition, the regulations do not address the
possibility if the parties deny the use of an advisee. Would the
institution be responsible for providing advisees in the absence of
both parties selecting an advisee to accompany them or act on their
behalf? The phrase ``aligned with the interests of the party'' for whom
the advisor is assigned is vague and not defined.
The work of the advisor will extend beyond the hearing. The advisor
must be willing and able to spend time with the party to prepare for a
hearing, understand the policies and procedures of a given institution,
and be willing and able to cross-examine the other party. This will
require extensive training and will prove very difficult for many
institutions. In addition, institutions will be required to secure
counsel for the hearing officer or decision maker adding cost to the
implementation of the proposed regulations.
The proposed regulations require that a decision maker must explain
why information is not relevant and therefore not admissible. This
requirement goes far beyond the rules of court for civil or criminal
proceedings. Legal counsel for every institution will need to attend
every hearing to assist non-attorney panel members due to the
adversarial nature of the hearings.
Under Sec. 106.45(b)(3)(viii) the proposed regulations ``would
require recipients to provide both parties an equal opportunity to
inspect and review any evidence obtained as part of the investigation
that is directly related to the allegations raised in a formal
complaint... The evidence must also be provided electronically and the
parties must be given at least ten days to submit a written
statement.'' (Page #6 I 4 76, Column #3, Paragraph #2) This requirement
of evidence disclosure is comparable to the discovery process used for
evidence in criminal and civil court cases. However, administrative
Title IX investigations conducted by institutions of higher education
differ from criminal and civil court matters in the degree of
confidentiality required for all parties involved. Criminal and civil
court matters are conducted in open court and are part of the public
record. In almost all Title IX investigations, all parties, including
the complainant and the respondent, want the matter to be held to the
highest level of confidentiality. Due to the sensitive nature of the
matter regardless of the outcome of the case, all the parties want to
keep the matter confidential and want to limit the distribution of
evidence to a minimum.
Providing the evidence to all parties in an ``electronic format''
even if it cannot be downloaded or copied threatens that
confidentiality. Nothing would prevent the parties from having anyone
without a ``need-to-know'' read the file that would contain evidence
and witness statements about the incidents investigated. Those
individuals in turn could relay this confidential information to anyone
else. Institutions have no ability to enforce the confidentiality
demanded by the parties in the case. In addition, it is unclear if
there are file sharing platforms available that would prevent parties
from taking ``screen shots'' of specific documents for later
distribution. Currently, many institutions of higher education do
provide full disclosure of all evidence in Title IX cases to all
parties and their advisors through physical review of the documents in
the presence of the investigators. The parties and their advisors are
allowed to review all the evidence as witnessed by the investigators as
many times as needed. This physical review fulfills the important
mission of full disclosure to all the parties and also aligns with the
inspection requirements under FERPA. Furthermore, a physical review
does not place confidentiality at risk by releasing important evidence
to the parties that could later be provided to others beyond the
control of the institution of higher education. Any new Title IX
regulations should require that Title IX procedures assure evidence is
fairly and completely disclosed to all parties and their advisors;
however, the regulations should also provide the institutions of higher
education the autonomy to choose to disclose this evidence through
physical review as witnessed by the investigators in order to protect
the confidentiality of the process.
C. Standard of evidence
Proposed Section 106.45(b)(4)(i)
Comment: The SVAC agrees and believes strongly that institutions
need to preserve the ability to determine the standard of evidence for
student and employee misconduct processes. The federal government
should not mandate a standard of evidence for higher education.
Processes designed to address possible violations of Title IX must be
consistent with processes that address possible violations of other
civil rights. Institutions must be allowed to implement processes
consistent across the policies and processes employed to address all
forms of discrimination and discriminatory harassment. Establishing
processes unique to sexual harassment might create problems with
consistency and equity. Within the Commonwealth, institutions use the
standard of evidence that best suits the educational mission of the
college or university is consistent with institutional mission,
culture, history, precedent, and practice. Please see additional
comments on Directed Question #6 below.
Proposed Section 106.45(b)(6) Informal resolution
Comment: Consistent with its commitment to supporting institutional
autonomy, choice, and educational flexibility, the SVAC agrees that the
proposed regulations must not dictate the use of informal resolution in
Title IX processes. Colleges and universities must be allowed to
determine whether to offer informal resolution as an option and, if so,
what type of informal resolution is most appropriate.
III. Directed Questions
2. Applicability of provisions based on type of recipient or age of
parties.
Comment: Within the Commonwealth, colleges and universities serve
multiple students and guests many of whom are under the age of 18.
Clarifying applicability of these regulations to persons under the age
of 18 is necessary. Individuals under the age of 18 are served as
students and as guests in a variety of settings and in varying degrees
of engagement. Institutions must be allowed to promulgate policies and
processes consistent with state laws and regulations and include
settings such as dual-enrollment settings (high school students
enrolled in college-level courses), athletic and other types of camps
and programs such as 4-H.
3. Applicability of the Rule to Employees.
Comment: The SVAC believes that institutions must preserve the
ability to investigate and act on reports of sexual violence that might
not include a formal complaint. In the interest of preserving a safe
and equitable learning and working environment, the institution must be
able to act on information received about an employee that might be
beyond what is accounted for in the regulations and yet raises serious
concerns. In these instances, the requirement of a formal signed
complaint might be perceived as limiting the ability of the institution
to act in violation of the requirements contained in Title VII of the
Civil Rights Act.
The requirement that Title IX processes be uniform for students and
employees does not address the fact that many employees have special
access to students and their information. As an employer, colleges and
universities must be able to take into consideration that some
employees might use their access to students and status within the
university in ways that would preclude the receipt of a formal
complaint.
As mentioned above in the General Comments, the Commonwealth has
the Law Enforcement Officers Procedural Guarantee Act (Sec. 9.1-500)
that outlines processes for the investigation of law enforcement
officers charged with misconduct, including sexual harassment that
might fall under Title IX. The requirement that Title IX processes be
uniform for students and employees does not allow colleges and
universities to adapt processes, as necessary, for employees covered by
state law and regulations.
4. Training.
Comment: As a statewide advisory committee, the SVAC agrees with
the requirements for training outlined in the regulations. The SVAC has
spent the past few years discussing the Commonwealth's needs for
training on sexual violence for all professionals involved in
responding, investigation, and adjudicating allegations. Of particular
concern are the variety of trainings available and their uneven quality
and accuracy. Should the regulations include specific training
requirements, colleges and universities would be well served to receive
training accepted by the Department. Funding should be made available
through the Department for comprehensive training. In addition,
institutions would benefit from technical assistance and guidance on
policies and processes deemed consistent with Department regulations
and expectations.
6. Standard of Evidence.
Comment: In the Commonwealth of Virginia several institutions of
higher education utilize honor systems based on the ``beyond a
reasonable doubt'' standard, and in some cases, to the sanction of
permanent dismissal from the institution. These time-honored systems
have been used throughout the history of the institutions, some dating
back hundreds of years, to uphold the highest standards of academic
achievement and honor. Currently, within these institutions ``other''
conduct disciplinary systems are separated from the honor system and
utilize a different standard of evidence such as the preponderance of
evidence or the clear and convincing standards. Institutions must
continue to have the autonomy to keep historically important honor
systems that use the beyond a reasonable doubt evidence standard while
bringing uniformity to other conduct disciplinary systems under either
the preponderance of evidence standard or the clear and convincing
standard. Please see comments above on Proposed Section I
06.45(b)(4)(i).
9. Technology needed to grant requests for parties to be in separate
rooms at live hearings.
Comment: Many institutions would require additional resources for
purchasing technology and making adaptations to accommodate this
requirement. Schools would benefit from grant resources made available
through the Department.
IV. Cost and Implementation
The proposed regulations have significant costs associated with
their implementation. Costs include increased and specialized personnel
(advisors, hearing officers, and counsel), technology (software
purchase and launch, and technology for cross-examination in hearings),
the creation or renovation of space to allow for simultaneous,
screened-off hearings, advisors (for both parties), training
implementation (all involved with process, mediation/informal
processes, for faculty/staff/students), and costs associated with
increased documentation (including software purchase, launch, and
maintenance). An estimated calculation of costs for implementing these
regulations is a range of $500,000 for institutions with few cases (0-
4) to $1.8 million for institutions with many cases (up to 45). The
range of costs was estimated per institution for implementation of
investigation, hearing, and adjudication processes.
The Department might want to consider state and institutional
budget cycles, especially in consideration of possible tuition and fee
increases needed to help cover costs for implementing additional
personnel and resources for addressing student complaints. It is
recommended that the regulations allow for an implementation period of
no less than 18 months. This would allow institutions time to
accommodate budget cycles and to request additional resources for the
subsequent fiscal year.
______
National Council on Disability
April 1, 2019
Hon. Lamar Alexander, Chairman
Hon. Patty Murray, Ranking Member
Hon. Robert P. Casey, Jr.
Hon. Maggie Hassan
U.S. Senate Committee on Health, Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC.
Dear Chairman Alexander, Ranking Member Murray, Senator Hassan and
Senator Casey:
I write on behalf of the National Council on Disability (NCD) to
express our appreciation for the Committee's continued focus on the
issue of sexual assault on college campuses. Last year the National
Council on Disability published a report bringing attention to the
disproportionate incidence of sexual assault against students with
disabilities as well as the discrimination that these students too
often face when they report an assault. The report, Not on the Radar:
Sexual Assault of College Students with Disabilities found that
students with disabilities are not ``on the radar'' of colleges in
their sexual assault prevention efforts, policies, or procedures for
response and support after an assault. This includes the absence of
procedures to communicate with victims who are Deaf or hard of hearing
and inaccessible support services for students with mobility
disabilities. As this Committee considers sexual assault on college
campuses as both a personal tragedy for individual students but also as
a public health crisis, we urge you to keep students with disabilities
on your radar.
Following the release of Not on the Radar last year, Senators
Hassan and Casey co-sponsored groundbreaking legislation, the Safe
Equitable Campus Resources and Education (SECuRE) Act, in line with
NCD's policy recommendations from Not on the Radar, that requires
institutions to report sex offenses, domestic and dating violence and
stalking involving a victim who has a disability, ensure that responses
to these incidents take the needs of victims with disabilities into
account, ensure that prevention and awareness programs are accessible
and include people with disabilities, hold disciplinary hearings that
are accessible and conducted by officials with training in working with
people with disabilities. They have re-introduced the legislation in
anticipation of this hearing; NCD commends the Senators as well as
Congresswoman Dingell for their continued leadership on this critical
issue and looks forward to continuing to educate policymakers regarding
the need to include students with disabilities in efforts to prevent
sexual assault on college campuses as well as to address the impact of
sexual assault on students with disabilities. As part of that effort,
NCD would like to submit the report, Not on the Radar: Sexual Assault
of College Students with Disabilities, attached to this letter as
Appendix A, for inclusion into the record of this hearing.
Respectfully,
Neil Romano
Chairman
______
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Safety Advisors for
Educational Campuses, LLC
April 2, 2019
Hon. Lamar Alexander, Chairman
Hon. Patty Murray, Ranking Member
U.S. Senate Committee on Health, Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC.
Dear Chairman Alexander, Ranking Member Murray, and Honorable
Members of the Committee:
Safety Advisors for Educational Campuses, LLC is a social
entrepreneurship organization devoted to safer learning environments
with over 100 years of combined experience addressing gender based
violence in higher education. We greatly appreciate the Committee's
interest in and commitment to addressing this issue by holding today's
hearing.
This has long been and remains one of the foremost safety
challenges for the field. While we have made significant progress in
better addressing this challenge over the last decade, this has brought
new challenges as institutional responses expand, and much work remains
to be done. We are grateful for this opportunity to offer our input on
the federal government's role.
Currently the federal government addresses campus sexual assault as
a civil-rights issue under Title IX of the Education Amendments of 1972
(Title IX) and as a consumer-information and protection issue under the
Jeanne Clery Disclosure of Campus Security Policy and Campus Crime
Statistics Act (Clery Act), a subsection of the Higher Education Act of
1965 (HEA). Combined these laws provide a critical framework for higher
education to combat sex based harms.
As the Committee hears various concerns we hope that your focus
will be on building upon this existing framework in a manner that
enhances prevention initiatives, protects victims, ensures robust equal
procedural safeguards for both complainants and respondents in
disciplinary proceedings, and does not create overly burdensome
procedures that turn ``classrooms into courtrooms''. Our shared goal
should be to empower higher education to create safer learning
environments not put hurdles in their way.
The Scope of Campus Sexual Assault
For decades numerous studies, including those produced by the U.S.
Department of Justice (DOJ) have indicated that between 1/5 and 1/4
female undergraduates will experience a completed or attempted sexual
assault during their time in college. In 2016, the DOJ's Campus Climate
Survey Validation Study Final Technical Report found, for example, that
across nine institutions, an average of 25.1 percent of female
undergraduates had experienced a sexual assault during their academic
career. A finding, however, that has not been the subject of
significant discussion was that the prevalence rate varied widely
across these institutions. The highest prevalence rate among the
institutions was 50.8 percent, and the lowest was 13.2 percent This
indicates that the adoption of campus level climate surveys is
essential to a better understanding of the unique challenges faced by
individual institutions, and the type of prevention initiatives that
would best serve each.
Since it was first enacted in 1990, the Clery Act has been the
primary source of campus crime data. Relying on this data, however,
significantly understates the scope of the challenge of sexual assault
because it is limited both to incidents occurring on property directly
associated with the institution and when there is an official report.
The 2016 study, consistent with prior data, found that ``about one-
third of rape incidents . . . took place on campus'' and that only
``12.5 percent of rape incidents were reported by the victim'' to
officials.
The DOJ found this meant that 2,380 completed rapes against
students in their sample of nine institutions during the 2014-2015
academic year corresponded to only 40 reports under Clery. Whether or
not actually occurring directly on campus or officially reported, these
incidents impact a campus, and having the complete picture is essential
to those entrusted with preventing and responding to sexual violence.
Disciplinary Proceedings
While comprehensive data isn't available, our experience over the
last decade is that institutions of higher education have stepped-up
disciplinary enforcement involving sex based harms. This comes about as
a result of the U.S. Department of Education's 2011 Title IX Dear
Colleague Letter which was withdrawn in 2017, the Violence Against
Women Reauthorization Act of 2013's expansion of the Clery Act's sexual
violence requirements (which dated back to 1992), and subsequent public
attention focused on these issues including by student activists. Many
institutions have embraced a culture of accountability focused on
combating sexual violence reflecting a significant cultural change.
Challenges to some types of proceedings adopted as part of this
process have been raised both in private litigation and a Title IX
Notice of Proposed Rulemaking (NPRM) issued by the U.S. Department of
Education (ED) on November 29, 2018. We, along with numerous other
organizations and individuals, have raised serious concerns about the
legality of the NPRM, including that it may raise critical separation
of powers issues. We have detailed these concerns in our comments to ED
which we have also provided a copy of to the Committee for reference.
We also have serious policy concerns that the proposals of the NPRM
would reverse the progress that has been made over the last decade in
combating sexual violence. The proposals go beyond what is needed to
accomplish the stated goal of finding the truth rather they appear to
be geared towards narrowing the scope of incidents dealt with by
institutions and deterring reporting.
They also ignore the provisions which already exist within the
Clery Act that offer equal procedural safeguards for both the accused
and accuser in disciplinary proceedings involving sexual assault,
dating violence, domestic violence, and stalking as well as significant
flexibility for institutions in implementing these protections. Not
only can policies that protect the interests of the accused be
implemented without negatively impacting the interests of the accuser,
Congress has already done so. These provisions were also designed to
complement rather than subvert the civil rights protections afforded to
sex discrimination victims under Title IX.
Clery already mandates much of what is being asked for by civil
liberties advocates including explicit procedural safeguards.
Proceedings must afford a ``prompt, fair, and impartial process from
the initial investigation to the final result''. They must be conducted
``by officials who, at a minimum, receive annual training on the issues
related to dating violence, domestic violence, sexual assault, and
stalking and on how to conduct an investigation and hearing process''.
Officials must ``not have a conflict of interest or bias for or against
the accuser or the accused''.
Clery in seeking a balanced approach also enumerates specific
rights for both ``the accuser and the accused'' including:
The same opportunities to have others present.
The opportunity to be accompanied to any related
meeting or proceeding by an advisor of their choice who may be
an attorney.
Simultaneous notification, in writing of the result
of the proceeding; options, if any, to appeal; any changes to
the result; and when such results become final.
Timely and equal access to any information that will
be used during informal and formal disciplinary meetings and
hearings.
ED has determined that these protections apply in disciplinary
proceedings whether the underlying conduct occurred on or off campus.
In The Handbook for Campus Safety and Security Reporting, 2016 Edition
on pages 8-2 and 8-3, they state to institutions ``your statement must
address . . . the procedures your institution will follow when one of
these crimes is reported to your institution, whether the offense
occurred on or off campus.'' (Emphasis Added) They further state, on
page 8-16, that this applies to incidents occurring ``on or off your
institution's Clery Act geography''. This is in contrast to the NPRM
which would limit an institution's response to ``conduct within its
education program or activity''. Also, a signed complaint is not
necessary to initiate action under Clery as would be required by the
NPRM.
Live Cross Examination
We are especially concerned about the proposal for live cross
examination by either the parties or aligned advisors. The efficacy of
cross examination as a tool for determining truth is unique to its
context. In criminal and civil court, cross examination is conducted by
legally trained
individuals, operating within the framework of the rules of
evidence, overseen by a judge, with the knowledge that any violations
of the rules of evidence or harassment of witnesses could result in
either discipline or loss of their job by the American Bar Association.
In contrast, within school proceedings there are no training
requirements, process requirements, evidentiary framework, oversight
body, or even a guarantee that an individual with the smallest bit of
formal legal training will be in the room. The reasons that cross
examination is helpful in the court system are absent in the
institutional process, and the only way to rectify this is to continue
to turn classrooms into courtrooms, something that is unnecessary to
achieve the goal of challenging the testimony of any witnesses involved
in a campus proceeding.
Cross examination conducted in actual court rooms is conducted by
trained individuals and overseen by a judge, and therefore questions
are essentially vetted through a process of qualification and oversight
from a disciplinary perspective that lawyers are subject to which
prohibits harassment of witnesses. In the school context, requiring
that each party provide a panel with their list of questions to be
asked of witnesses to assure there is no harassing or purposefully
intimidating questions is appropriate, as there are no other safeguards
in place to protect witnesses and both parties from intentional misuse
of the cross examination process.
Conclusion
Again we appreciate the Committee's commitment to addressing campus
sexual assault, and the opportunity to offer our insights. If we can be
of any assistance or help answer any questions you may have please
don't hesitate to ask.
Sincerely,
S. Daniel Carter
President
Taylor Parker
Title IX Associate
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
QUESTIONS AND ANSWERS
Response by Patricia Hamill to Questions of Senator Alexander, Senator
Warren, Senator Rosen, and Senator Sanders
senator alexander
Question 1. In your representation of accused students, how have
you seen campus disciplinary proceedings impact their access to
education? What negative effects do these proceedings, regardless of
outcomes have on the future employment opportunities for these
students?
I would like to start by stating that I am heartened by the fact
that most, if not all, of the Senators and witnesses at the hearing
affirmed the need for fair and transparent procedures for resolving
Title IX complaints. \1\ As I set forth in my written testimony, basic
principles such as the need for adequate notice and fair, thorough and
impartial investigations and decisions are well established in our
nation's jurisprudence. The procedural concerns discussed at the
hearing focused on whether fair procedures should include live hearings
and direct cross-examination, which I address further in some of my
answers below. \2\
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\1\ Patricia Hamill is a partner at the Philadelphia law firm
Conrad O'Brien, P.C., and Chair of the firm's nationwide Title IX, Due
Process and Campus Discipline practice. She represents college students
and academic professionals in disciplinary proceedings and related
litigation. Patricia is a frequent speaker on Title IX litigation and
related issues to audiences including Title IX coordinators, advocacy
groups, and attorneys. Patricia is also a commercial litigator who
represents clients in white-collar and internal investigations, and is
a member of the firm's three-person Executive Committee.
\2\ My focus here is on colleges and universities and their
students.
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Answer 1. As this Committee knows, Title IX provides that ``[n]o
person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance.'' 20 U.S.C. Sec. 1681(a). At the
hearing, Senators and witnesses emphasized that Title IX protects
students' equal access to education, and that sexual harassment or
assault can affect a complainant's access to educational programs and
activities. I completely agree. And I emphasize that the right to equal
access to education means equal access for both complainants and
respondents, regardless of gender. Students who are accused of sexual
harassment or assault may be completely excluded from and denied the
benefits of their school's educational programs and activities, whether
or not they are found responsible.
First, if accused students are found responsible, they may be
suspended or expelled from their school and lose the degree they worked
and paid for, sometimes very late in their college careers. They may
lose scholarships or the ability to participate in military or other
programs that have made their educations possible. They likely will be
unable to transfer to a comparable school to complete an undergraduate
degree. And if they are able to transfer, they may lose credits or have
to repeat a term or year. \3\ Their reputations, educational prospects,
and career or professional prospects may be permanently damaged due to
gaps in their education, the stigma of being found responsible for
sexual harassment or assault, and, in many cases, permanent notations
in their academic records or on their transcripts. \4\ It is critical
to provide a process fair to both parties before such a consequential
decision is made, to minimize the possibility that a student wrongfully
accused is found responsible. And it is also critical to provide a path
to rehabilitation in cases where an institution's finding of
responsibility might have merit. I believe schools should be able to
expunge a student's records after a designated period of time, and that
there should be a time frame after which respondents are no longer
required to report an adverse disciplinary ruling on an application for
admission to another school. I note the broad support for ``ban the
box'' laws in the criminal context, which require employers to consider
a job candidate's qualifications first, without the stigma of a
criminal conviction or arrest record. And the Common Application has
removed its question on criminal history - though it continues to
include a question on disciplinary history.
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\3\ For instance, a student expelled after completing junior year
ordinarily cannot simply complete his senior year elsewhere and be
awarded a degree from the second institution. Most schools require
students to earn a certain number of credits at their institution
before awarding a degree. That usually means a student must complete
two full years, so a student expelled after his junior year will
usually have to repeat that year - assuming he is admitted somewhere
else. Also, when a school suspends a student, it typically will not
honor courses the student has taken elsewhere during the period of
suspension.
\4\ Some states and some school policies require notations on
transcripts indicating a finding of responsibility for sexual
harassment or assault. Some such notations are permanent, particularly
in the case of expulsion, and some may be removed after a suspension is
served. See, e.g., Va. Code Sec. 23-9.2:15; N.Y. Education Law Art.
129-B.
Second, an accused student who is ultimately exonerated may also be
excluded from and denied the benefits of the school's educational
programs and activities. In my experience, this happens frequently due
to interim actions schools take while a disciplinary proceeding is
pending. The exclusion/denial is obvious if a school suspends or
removes a respondent from campus before a final decision is made. The
Department's proposed Title IX regulations address this problem,
stating that emergency removal is appropriate only if the school
``undertakes an individualized safety and risk analysis, determines
that an immediate threat to the health or safety of students or
employees justifies removal, and provides the respondent with notice
and an opportunity to challenge the decision immediately following the
removal.'' Proposed 34 C.F.R. Sec. 106.44(c). I support those
protections, and have proposed in addition that emergency removal be
allowed only if it is the least restrictive alternative. Moreover,
comparable protections should be in place for other interim actions
schools routinely take. ``No contact orders,'' though often appropriate
and necessary, should be tailored in such a way that they do not
prevent either student from participating in educational programs or
activities while the proceeding is pending. The routine practice of
putting a ``disciplinary hold'' on accused students' transcripts or,
for students with cases pending at graduation, withholding their
degrees, denies accused students the benefits of their education in
some of the same ways as a finding of responsibility. For example, a
student who cannot get a clean official transcript or whose degree is
withheld may, while waiting for the final outcome, lose a job, a
scholarship, the ability to participate in a military program, etc.,
and may be unable to apply for jobs or graduate programs. The damage
that occurs while those interim sanctions are in place cannot be
undone. Unless a particular student poses an ``immediate threat,''
there is simply no justification for denying him the benefits of his
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education while his responsibility has yet to be adjudicated.
Third, even apart from the school's official actions, the mere fact
of an accusation and a disciplinary proceeding involving alleged sexual
harassment or assault can interfere with an accused student's ability
to pursue his education. A student who is accused is distressed and is
often ostracized. In this age of the Internet and social media, the
damage to an accused student's educational and career prospects can
persist regardless of the outcome of the disciplinary proceeding. While
I understand that is not entirely in a school's control, schools can
and should mitigate the impact by adopting fair procedures;
administering them fairly; avoiding any suggestion that an accusation
is credible simply because it was made; educating both employees and
students on what a fair process entails; and taking prompt and
effective action when harassment or retaliation occurs. The current
stigma associated with even a wrongful allegation of sexual assault is
so intense that the vast majority of judges who have handled lawsuits
in this area have allowed the accused student to file pleadings as
``John Doe.''
A number of people who responded to the Department's request for
comments on its proposed Title IX regulations shared personal stories
illustrating the devastating impact of accusations of sexual harassment
or assault, interim sanctions, findings of responsibility, and final
sanctions. \5\ These stories are consistent with what I have observed
firsthand. I urge the Committee to consider these stories, and to
remember that complainants and respondents are people - young people -
who deserve a fair and impartial resolution based on the facts of their
individual cases.
---------------------------------------------------------------------------
\5\ See, for example, Comments of Anonymous parent, https://
www.regulations.gov/document?D=ED-2018-OCR-0064-9000 (describing
student's experience and sharing specific recommendations based on that
experience: the student was found responsible without a hearing and
expelled, his parents learned about the situation when they received a
call that he was suicidal and in the hospital, and they sued and won.
``Many of us have daughters, some women have experienced sexual assault
themselves and we strongly agree that victims need protection. However,
it should never come at the expense of an innocent accused student. The
goal should be to find the truth and provide a fair process given the
high stakes for both students. Both victims and falsely accused
students experience profound trauma''); Comments of Anonymous parent,
https://www.regulations.gov/document?D=ED-2018-OCR-0064-7160 (sharing
perspective from having had a daughter who was sexually assaulted and a
son accused of sexual assault while in college. ``We all, as a family,
appreciate the hesitancy of victims to come forward, and we certainly
want those guilty of sexual crimes to be prosecuted. However, to deny
basic and established constitutional rights to the accused becomes a
slippery slope and begs the question of which other situations should
be considered for the repeal of one's constitutional rights?'');
Comments of Craig Stanfill, https://www.regulations.gov/document?D=ED-
2018-OCR-0064-10624 (student who was accused a few months before
graduation and exonerated over a year later lost two years of his
professional life because of the withholding of his degree and
inability to apply for graduate school or find a permanent job);
Comments of Mark Shaw, https://www.regulations.gov/document?D=ED-2018-
OCR-0064-10413 (student was exonerated eight months after complaint was
made, but was damaged by the campus restrictions imposed during that
period); Comments of Anonymous student, https://www.regulations.gov/
document?D=ED-2018-OCR-0064-9043.
Question 2. Are campus disciplinary proceedings distinguishable
---------------------------------------------------------------------------
from workplace disciplinary actions? If so, why?
Answer 2. I believe this question stems from the fact that some
have suggested that workplace disciplinary proceedings use single
investigator models without hearings and cross-examination, and that
the same model is therefore appropriate for student proceedings. As I
explain below, such generalizations ignore the substantial variation in
workplace protections and do not justify efforts to deny important
procedural protections in the campus setting. Indeed, many schools
offer their employees greater rights and protections than the
Department of Education's proposed regulations would provide. In
addition, courts are increasingly recognizing the need for fundamental
protections in student disciplinary proceedings. Both historical and
practical considerations support those protections.
First, employers handle disciplinary proceedings in a wide variety
of ways and workers are subject to a wide variety of procedures and
protections. Some employees are at will. Some are protected by
statutes, regulations, handbooks (which may or may not be contractually
binding), contracts or collective bargaining agreements, with
provisions that differ for different employers, and sometimes also for
different employees at the same company. The broad generalizations
about ``workplace models'' are not based on evidence and do not support
efforts to deny accused students fair processes in campus proceedings.
Second, the rights and protections many colleges and universities
give their employees are greater than the rights and protections that
would be guaranteed by the Department of Education's proposed
regulations. Indeed, in comments to the proposed regulations, many
schools protested the proposal that universities apply the same
standard of evidence in student Title IX proceedings as they use in
employee proceedings. The Association of Independent Colleges and
Universities of Massachusetts (AICUM), for example, argued that student
disciplinary cases are ``fundamentally different'' from employee
proceedings. ``Campus conduct proceedings involving faculty and other
employees are governed by existing state laws, collective bargaining
agreements, faculty by-laws, and/or other constraints, which
institutions often have no power unilaterally to change.'' \6\
---------------------------------------------------------------------------
\6\ Comments of AICUM, at 13, http://aicum.org/wp-content/uploads/
2019/01/AICUM-public-comments-on-Notice-of-Proposed-Rulemaking-
%E2%80%9CNPRM%E2%80%9D-amending-regulations-implementing-Title-IX-of-
the-Education-Amendments-of-1972-Title-IX%E2%80%9D-Docket-ID-ED-2018-
OCR-0064.pdf; see also Comments of Association of Governing Boards of
Universities and Colleges, https://www.regulations.gov/document?D=ED-
2018-OCR-0064-7550 (stating that requiring consistency across all
proceedings would impact ``myriad campus matters, constituencies and
processes,'' including ``collective bargaining agreements,
institutional governance decisions, as well as state-law-regulated and
non-Title IX disciplinary policies and procedures'').
I am not arguing here that students should necessarily have every
right enjoyed by faculty or by employees governed by a collective
bargaining agreement. I am simply pointing to the protections colleges
and universities give their employees - particularly academic employees
- to illustrate that it is inappropriate to advocate for limiting
accused students' rights in disciplinary proceedings by suggesting that
there is some uniform ``workplace model'' involving decisions made by a
single investigator, with no live hearings and no opportunity to
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confront the other party or witnesses.
The University of Washington provides just one example of a
workplace model involving substantial procedural protections -
including separation of investigative and adjudicative functions, steps
to ensure impartial decisionmakers, steps to ensure all relevant
evidence is gathered and shared with the parties, right to a hearing,
and right to cross-examination. Administrative Policy Statement 46.3,
``Resolution of Complaints Against University Employees,'' describes
how the university handles complaints against university employees,
including complaints involving alleged sexual harassment or sexual
violence. As an initial matter, complaints may be addressed through
local investigation and resolution or through the University Complaint
Investigation and Resolution Office (UCIRO) process. In the UCIRO
process, an investigator ``acts as a neutral, objective fact-finder''
and produces ``a summary of the allegations investigated and the facts
determined.'' ``As warranted, UCIRO will refer the result to the
appropriate administrative head to determine whether corrective actions
should be taken involving the individual whose behavior is the subject
of the complaint in accordance with the individual's employment
program.'' Id., http://www.washington.edu/admin/rules/policies/APS/
46.03.html (emphasis added).
Complaints against faculty are governed by the Faculty Code, which
sets forth ``the adjudicative procedures to be used in resolving
disputes involving faculty members that cannot be resolved by informal
means.'' Ch. 28, http://www.washington.edu/admin/rules/policies/FCG/
FCCH28.html. The chapter starts by strongly encouraging the use of
informal dispute resolution. Id. If the UCIRO files ``a written report
that claims reasonable causes exist to adjudicate charges'' against a
faculty member, the first step is a determination of reasonable cause,
to be made by the provost with the assistance of a special committee of
three faculty members ``who are not involved in the matter being
considered'' and who will not ``subsequently serve on any panel hearing
or review any adjudication arising out of or related to the matters set
forth in the report.'' Section 28-32(A).
For ``[c]omprehensive adjudication,'' defined as ``the formal
hearing process used for all cases except the minor cases that are
resolved with brief adjudications,'' the Code sets forth extensive
rights and protections, including the following provisions:
``In selecting members of a particular hearing panel,
the Chair of the Adjudication Panel shall attempt to achieve
the highest degree of diversity and impartiality and make every
possible effort to select panel members with differing
backgrounds that the Chair deems relevant to the issues at hand
and the persons involved. This requirement is especially
important to observe in cases where unlawful discrimination is
alleged. The purposes of this provision are to broaden the
perspective of the panel, and increase the panel's ability to
understand the motivations of the persons involved.'' Section
28-32(G).
``The role of any member of a hearing panel . . .
shall be that of an impartial fact finder and judge and shall
not be that of an advocate for any of the parties to the
adjudication.'' Section 28-32(H).
A pre-hearing conference will be held at which ``the
hearing officer, the panel and the parties shall discuss and
agree upon the evidence to be presented and the issues to be
addressed at the hearing.'' Section 28-52(D).
The hearing officer ``shall issue a Prehearing Order
. . . which shall set forth the issues to be addressed at the
hearing, the factual issues which are uncontroverted, the
witnesses to be called and the other evidence to be presented,
the extent to which any discretionary rights to participate
will be given to nonparty participants, the extent to which
depositions, requests for admission and any other form of
discovery will be allowed and any other matters the hearing
panel shall deem appropriate in setting the procedure to be
followed at the hearing.'' Section 28-52(E).
``Any faculty member who is a party to a proceeding
under this chapter shall have the right to be represented by
counsel at all stages in the proceedings.'' Section 28-52(G).
``The hearing officer may instruct any person who is
a party to the adjudication or an administrative officer or
administrative employee of the University to appear and to give
testimony under oath or affirmation.'' A person who refuses to
comply is subject to sanctions, including dismissal or the
drawing of adverse inferences. Section 28-52(H).
``The hearing officer may at any time issue any
discovery or protective orders that he or she deems
appropriate, and such orders shall be enforceable under the
provisions of Chapter 34.05 RCW regarding civil enforcement of
agency actions.'' Section 28-52(K).
``The parties and nonparty participants of right and
their advisors and representatives'' are entitled to be present
at the hearing. Section 28-53(A).
``The hearing shall either be recorded, audio only or
video, or transcribed by a court reporter, as determined by the
hearing panel. . . . Copies of the recording or transcript
shall be made available to any party or nonparty participant of
right at University expense upon request.'' Section 28-53(B).
``If the facts in the case or relief requested are in
dispute, testimony of witnesses and other evidence relevant to
the issues and to the relief requested shall be received if
offered. The hearing officer may admit and consider evidence on
which reasonably prudent people are accustomed to rely in the
conduct of their affairs,'' and shall ``refer to the Washington
Rules of Evidence as non-binding guidelines for evidentiary
rulings. All testimony of parties and witnesses shall be given
under oath or on affirmation.'' Section 28-53(C).
``To the extent necessary for full disclosure of all
relevant facts and issues, the hearing officer shall afford to
all parties and nonparty participants the opportunity to
respond, present evidence and argument, conduct cross-
examination and submit rebuttal evidence . . . .'' Section 28-
53(D).
``The parties shall have the opportunity to confront
all witnesses.'' Section 28-53(F).
Third, as I explained in my written testimony, campus disciplinary
proceedings have been in a spotlight in recent years. Courts are
increasingly holding that students accused of sexual harassment or
assault are entitled to certain procedural protections, and that how
respondents are treated in disciplinary proceedings can constitute
gender discrimination. The case law continues to develop regarding the
obligations of both public and private institutions. When similar
issues about unfair processes and arbitrary results arise in the
workplace context, courts, regulators, and others should be just as
concerned to ensure fair procedures in the workplace. Indeed, a federal
court recently ruled that a tenured professor who alleged he was fired
without a hearing and without consideration of exculpatory evidence
stated a valid gender discrimination claim. Fogel v. Univ. of the Arts,
No. CV 18-5137, 2019 WL 1384577 (E.D. Pa. Mar. 27, 2019).
Fourth, with the above points in mind, there are historical and
practical considerations that support requiring robust procedural
protections before students are deprived of their educations.
a. Historical considerations. Title IX applies to
federally funded educational institutions, and thus to almost
every college and university in the United States. Starting
with the Office for Civil Rights' 2011 Dear Colleague Letter,
the federal government has used the threat of withdrawal of
funding to dictate campus procedures for sexual harassment and
assault allegations. The government's pressure has led to
massive Title IX bureaucracies at colleges and universities.
\7\ While individual schools have different policies and
procedures, there are common elements (some prescribed by the
government and others that are an outgrowth of its mandates)
and common themes, including presumptions of guilt, use of a
``single investigator'' model that involves inherent conflicts
of interest and severely limits the respondent's ability to
challenge the complainant's account, denial of meaningful
cross-examination, erosion of other procedural protections for
respondents, and systemic gender discrimination. As noted above
and in my written testimony, courts are already responding by
holding that schools must avoid discrimination and provide
procedural protections, including live hearings and cross-
examination. For public institutions, courts have confirmed
these protections are mandated by the Constitution's Due
Process and Equal Protection clauses. In this context, it is
critical that lawmakers, regulators, and schools also take
action to undo the harm that has been done. If employers are
using unfair procedures to discipline their employees, that is
of course an important concern and should be addressed, but it
does not change the fact that campus disciplinary procedures
need reform now.
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\7\ For one example, a 2016 Harvard Crimson article discussed
``Harvard's web of 50 Title IX coordinators at each of the 12 schools
and units.'' See Andrew Duehren and Emma Talkoff, Seeking Trust:
Navigating Harvard's Sexual Assault Policies, Harvard Crimson (March
10, 2016), https://www.thecrimson.com/article/2016/3/10/harvard-sexual-
assault-policies/.
b. General practical considerations. (I say
``general'' because individual cases and circumstances differ,
and overall these considerations are on a spectrum). First,
students generally pay tuition for an education at a particular
school, including enrollment for a time period and a degree
from that school. Given the way the education system works, a
student who is sanctioned midway through an academic year or
midway through his college career (even if just shortly before
graduation) can lose credit for courses he took and paid for,
may be unable to graduate from the school that accepted his
tuition, and may be unable to transfer to a comparable
institution or have his previous coursework accepted. If his
transcript contains a notation of the disciplinary finding (as
many schools and some states require), or if he has to complete
the Common Application, his job and transfer applications may
never even be considered. There are good reasons to require a
formal process before a student is deprived of the education he
paid for and is substantially impeded in seeking other
educational opportunities. Second, at many schools, students
study, work, live, and socialize in the context of the school
community. Many contested student complaints involve sexual
encounters between young people who are sexually inexperienced,
are engaged in the casual hook-up culture prevalent on
campuses, or both. They may have misread or misinterpreted each
other's feelings or intent. Often both parties have consumed
alcohol or drugs, further diminishing their ability to make
clear decisions, communicate effectively, or remember what
happened. Disputes often center not on whether particular
conduct occurred but whether it was consensual. In such
ambiguous and nuanced situations, live hearings and cross-
examination are critical both for the parties to explore and
test each other's accounts and for the decisionmakers to
observe the parties as they testify. Of course these
observations may not apply to all schools and all students, and
employees may have analogous arguments. But again, whether or
not fair procedures are available in the workplace does not
change the need to act now to ensure fair procedures on school
campuses. And I note that workers have an important legal
protection that students do not: Title VII of the Civil Rights
Act of 1964 allows legal challenges to employment practices
that have a disparate impact on a protected class of
individuals (including a particular gender), whether or not the
employer intends to discriminate. In contrast, courts have held
that a plaintiff bringing a claim under Title IX must plead and
ultimately prove ``particularized'' facts to show that a school
was motivated by gender bias. \8\ This has allowed schools to
argue, and some courts to hold, that they are free to
discriminate against respondents and for complainants even
though this discrimination overwhelmingly harms men. \9\
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\8\ See, e.g., Doe v. Baum, 903 F.3d 575, 585 (6th Cir. 2018).
\9\ See my written testimony, p.9 n.26.
Some have argued that the federal government should not be overly
prescriptive in this area and that additional protections for students
will be too costly. This ignores the realities: the government is
already prescriptive, schools already invest huge sums in their Title
IX bureaucracies, fair treatment for both complainants and respondents
is required both by existing law and by our basic principles of
justice, and the system that currently exists does not provide fair
processes or fair and reliable outcomes. \10\
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\10\ Live hearings and cross-examination may not be required or
necessary in every case involving alleged sexual misconduct. The
Department of Education's proposed regulations represent an effort to
reserve formal Title IX proceedings for alleged conduct that could
deprive a complainant of educational opportunities, and give schools
and parties more flexibility to pursue informal, non-punitive
resolutions. And in general, the case law on these issues requires
hearings when the potential sanctions are as serious as expulsion or
suspension, and cross-examination when the decision turns on
credibility. See, e.g., Baum, 903 F.3d at 581.
Question 3. Some have argued that the 6th Circuit Court of Appeals
decision, Doe v. Baum, was decided based on the fact that University of
Michigan offered live cross-examination in other disciplinary
proceedings, but not in proceedings involving sexual assault. However,
the holding is not specific to those facts. Do you view Doe v. Baum as
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unique to its facts, or is the holding broader?
Answer 1. Doe v. Baum, 903 F.3d 575 (6th Cir. 2018), is not unique
to its facts. The Court's decision is based on long-standing precedent
regarding fair disciplinary processes and stands for three broad
propositions. First, due process requires that ``if a student is
accused of misconduct, the university must hold some sort of hearing
before imposing a sanction as serious as expulsion or suspension.'' Id.
at 581. Second, due process requires that ``when the university's
determination turns on the credibility of the accuser, the accused, or
witnesses, that hearing must include an opportunity for cross-
examination;'' i.e., ``if a university is faced with competing
narratives about potential misconduct, the administration must
facilitate some form of cross-examination in order to satisfy due
process.'' Id. And third, for purposes of a Title IX ``erroneous
outcome'' claim (which can be asserted against either a private or a
public school), a plaintiff who alleges ``the university did not
provide an opportunity for cross-examination even though credibility
was at stake in his case . . . has pled facts sufficient to cast some
articulable doubt on the accuracy of the disciplinary proceeding's
outcome.'' Id. at 585-86. \11\
---------------------------------------------------------------------------
\11\ ``A university violates Title IX when it reaches an erroneous
outcome in a student's disciplinary proceeding because of the student's
sex.'' Id. Courts have held that ``[t]o survive a motion to dismiss
under the erroneous-outcome theory, a plaintiff must plead facts
sufficient to (1) `cast some articulable doubt' on the accuracy of the
disciplinary proceeding's outcome, and (2) demonstrate a
`particularized ... causal connection between the flawed outcome and
gender bias.''' Id. at 585.
The Court's reasoning confirms that it intended its ruling to apply
broadly. Among other things, it repeated the classic statement that
cross-examination is ```the greatest legal engine ever invented for
uncovering the truth.''' It also noted that cross-examination is
critical both because it allows parties ``to identify inconsistencies
in the other side's story'' and because it ``gives the fact-finder an
opportunity to assess a witness's demeanor and determine who can be
---------------------------------------------------------------------------
trusted.'' Id. at 581 (internal citation omitted).
Only after finding ``a significant risk that the university
erroneously deprived Doe of his protected interests'' by denying him
cross-examination did the Court note that ``[t]his risk is all the more
troubling considering the significance of Doe's interests and the
minimal burden that the university would bear by allowing cross-
examination in Doe's case.'' Id. at 582. ``As it turns out,'' the Court
stated, ``the university already provides for a hearing with cross-
examination in all misconduct cases other than those involving sexual
assault.'' Id. The Court used this observation to bolster the ruling it
had already made, not to limit the applicability of the ruling.
The Court then went on to further emphasize the importance of
cross-examination, roundly rejecting the university's argument that Doe
was adequately protected by being allowed to review the complainant's
statement and identify inconsistencies for the investigator. ``Cross-
examination is essential in cases like Doe's because it does more than
uncover inconsistencies--it `takes aim at credibility like no other
procedural device.' . . . Without the back-and-forth of adversarial
questioning, the accused cannot probe the witness's story to test her
memory, intelligence, or potential ulterior motives. Nor can the fact-
finder observe the witness's demeanor under that questioning. For that
reason, written statements cannot substitute for cross-examination. `It
is of great importance in the distribution of justice that witnesses
should be examined face to face, that the parties should have the
fairest opportunity of cross-examining them in order to bring out the
whole truth; there is something in the manner in which a witness
delivers his testimony which cannot be committed to paper, and which
yet very frequently gives a complexion to his evidence, very different
from what it would bear if committed to writing . . . .''' Id. at 582-
83 (internal citations omitted).
Developments after Baum Court's ruling confirm its breadth. The
University of Michigan filed a petition for rehearing en banc. Other
Michigan universities, which did not have the same procedures, filed an
amicus brief. The Sixth Circuit denied the petition, saying the
original panel had already fully considered the issues it raised and
that on consideration by the full court ``[n]o judge has requested a
vote on the suggestion for rehearing en banc.'' \12\ Universities in
the Sixth Circuit are now revising their procedures to comply with the
Court's ruling. \13\
---------------------------------------------------------------------------
\12\ Doe v. Baum, No. 17-2213 (6th Cir.), Docs. 49, 55, 56.
\13\ See Universities confront Title IX policy changes after
proposed regulations, federal court rulings (Mar. 31, 2019), http://
www.kentwired.com/latest--updates/article--0d03846c-53de-11e9-82d5-
17570f289133.html.
Question 4. Aside from the 6th Circuit's decision in Doe v. Baum,
what are other courts around the country saying on the issues of live
hearings, cross-examination, and the single-investigator model in
---------------------------------------------------------------------------
university disciplinary proceedings?
Answer 4. As I stated, the rulings in Doe v. Baum and other cases
are solidly based on long-standing precedent requiring that people
accused of serious misconduct are entitled to a reasonable opportunity
to defend themselves before impartial decisionmakers. This is
constitutionally required for public institutions, and courts have
applied similar requirements to private institutions based on Title IX,
federal regulations, state law, or contractual documents.
One of the earliest, and most powerful, description of those rights
in the context of a student disciplined under Title IX was in Doe v.
Brandeis Univ., 177 F. Supp. 3d 561, 603 (D. Mass. 2016), where the
Court held that a private university did not provide the accused
student the ``basic fairness'' required by state law and the parties'
contract. ``Here, Brandeis failed to provide a variety of procedural
protections to John, many of which, in the criminal context, are the
most basic and fundamental components of due process of law.'' Id. at
603. These ``basic and fundamental components'' included the right to
confront the accuser; to present evidence at a hearing; and to
separation of investigation, prosecution, and adjudication functions.
Regarding cross-examination, the Court said:
Brandeis did not permit John to confront or cross-
examine J.C. [the complainant], either directly or through
counsel. Presumably, the purpose of that limitation was to
spare J.C. the experience of being subject to cross-
examination. While protection of victims of sexual assault from
unnecessary harassment is a laudable goal, the elimination of
such a basic protection for the rights of the accused raises
profound concerns.
In the famous words of John Henry Wigmore, cross-
examination is ``beyond any doubt the greatest legal engine
ever invented for the discovery of truth.'' 3 Wigmore, Evidence
Sec. 1367, p. 27 (2d ed. 1923). The ability to cross-examine
is most critical when the issue is the credibility of the
accuser. . . .
Here, there were essentially no third-party witnesses
to any of the events in question, and there does not appear to
have been any contemporary corroborating evidence. The entire
investigation thus turned on the credibility of the accuser and
the accused. Under the circumstances, the lack of an
opportunity for cross-examination may have had a very
substantial effect on the fairness of the proceeding.
Id. at 604-05.
Regarding the university's use of a single investigator model, the
Court said:
Under the Special Examiner Process, a single
individual was essentially vested with the powers of an
investigator, prosecutor, judge, and jury. Furthermore, those
decisions were not reviewable except as to certain narrowly
defined categories.
The dangers of combining in a single individual the
power to investigate, prosecute, and convict, with little
effective power of review, are obvious. No matter how well-
intentioned, such a person may have preconceptions and biases,
may make mistakes, and may reach premature conclusions. The
dangers of such a process can be considerably mitigated if
there is effective review by a neutral party, but here that
right of review was substantially circumscribed.
Id. at 606.
The Sixth Circuit's decision in Doe v. Univ. of Cincinnati, 872
F.3d 393 (6th Cir. 2017), from which the Baum decision logically
flowed, made clear again that the cross-examination requirement is
rooted in due process and legal precedent and essential to reliable
results, and that ``[r]eaching the truth through fair procedures is an
interest Doe and UC have in common.'' Id. at 402 (emphasis added).
``The Due Process Clause will not shield [a student]
from suspensions properly imposed, but it disserves both his
interest and the interest of the state if his suspension is in
fact unwarranted.'' Goss [v. Lopez], 419 U.S. [565,] at 579, 95
S. Ct. 729. UC, of course, also has a ``well recognized''
interest in maintaining a learning environment free of sex-
based harassment and discrimination. Bonnell v. Lorenzo, 241
F.3d 800, 822 (6th Cir. 2001). To that end, ``ensuring
allegations of sexual assault on college campuses are taken
seriously is of critical importance, and there is no doubt that
universities have an exceedingly difficult task in handling
these issues.'' Brandeis, 177 F.Supp.3d at 602 (citation
omitted).
But if a university's procedures are insufficient to
make ``issues of credibility and truthfulness ? . . clear to
the decision makers,'' that institution risks removing the
wrong students, while overlooking those it should be removing.
See Furey v. Temple Univ., 884 F. Supp. 2d 223, 252 (E.D. Pa.
2012). ``The concern would be mostly academic if the
disciplinary process were a totally accurate, unerring process,
never mistaken and never unfair. Unfortunately, that is not the
case, and no one suggests that it is.'' Goss, 419 U.S. at 579-
80, 95 S. Ct. 729. Cross-examination, ``the principal means by
which the believability of a witness and the truth of his
testimony are tested,'' can reduce the likelihood of a mistaken
exclusion and help defendants better identify those who pose a
risk of harm to their fellow students.
Id.
Other cases addressing the need for hearings and cross-examination
in the specific context of campus Title IX proceedings are described
below.
In series of recent cases in California state court, the courts
have directed both public and private universities to set aside
decisions finding male students responsible for sexual misconduct, and
have held that when a disciplinary decision turns on credibility,
parties and witnesses must be subjected to questioning and cross-
examination at a live hearing before a neutral adjudicator who cannot
be the same person as the investigator. See, e.g., Doe v. Allee, 30
Cal. App. 5th 1036 (Cal. Ct. App. 2019). In the Allee case, the Court
stated that ``[f]or practical purposes, common law requirements for a
fair disciplinary hearing at a private university mirror the due
process protections at public universities,'' including ```a full
opportunity to present [respondent's] defenses.''' Id. at 1061-62.
Citing multiple cases, the Court held that when credibility is at
stake, the accused must be allowed to cross-examine the accuser and
adverse witnesses. It noted that a cross-examiner may ``delve into the
witness' story to test the witness' perceptions and memory;'' may
``expose testimonial infirmities such as forgetfulness, confusion, or
evasion;'' and may ``reveal[] possible biases, prejudices, or ulterior
motives' that color the witness's testimony.'' And, the Court noted,
the ``strategy may also backfire, provoking the kind of confident
response that makes the witness appear more believable to the fact
finder than [the cross-examiner] intended. . . . Whatever the outcome,
`the greatest legal engine ever invented for the discovery of truth'
will do what it is meant to: `permit[] the [fact finder] that is to
decide the [litigant]'s fate to observe the demeanor of the witness in
making his statement, thus aiding the [fact finder] in assessing his
credibility.''' Id. at 1065-66 (internal citations omitted). The Allee
Court also disapproved the university's use of a single investigator to
resolve Title IX complaints without a hearing. In the Court's words:
As we have explained, in USC's system, no in-person
hearing is ever held, nor is one required. Instead, the Title
IX investigator interviews witnesses, gathers other evidence,
and prepares a written report in which the investigator acts as
prosecutor and tribunal, making factual findings, deciding
credibility, and imposing discipline. The notion that a single
individual, acting in these overlapping and conflicting
capacities, is capable of effectively implementing an accused
student's right of cross-examination by posing prepared
questions to witnesses in the course of the investigation
ignores the fundamental nature of cross-examination:
adversarial questioning at an in-person hearing at which a
neutral fact finder can observe and assess the witness'
credibility . . . In light of these concerns, we hold that when
a student accused of sexual misconduct faces severe
disciplinary sanctions, and the credibility of witnesses
(whether the accusing student, other witnesses, or both) is
central to the adjudication of the allegation, fundamental
fairness requires, at a minimum, that the university provide a
mechanism by which the accused may cross-examine those
witnesses, directly or indirectly, at a hearing in which the
witnesses appear in person or by other means (e.g.,
videoconferencing) before a neutral adjudicator with the power
independently to find facts and make credibility assessments.
That factfinder cannot be a single individual with the divided
and inconsistent roles occupied by the Title IX investigator in
the USC system.
Id. at 1068-69.
In Doe v. Regents of Univ. of California, 28 Cal. App. 5th 44 (Cal.
Ct. App. 2018), the Court's ruling illustrates that the right to cross-
examination is the right to effective cross-examination, and must
include access to relevant information and the ability to ask questions
relating to the respondent's defense. In that case, the university
allowed a detective to testify about a single phrase from a sexual
assault response team (SART) report without requiring production of the
entire report to the hearing committee or the respondent. ``Without
access to the complete SART report, [respondent] did not have a fair
opportunity to cross-examine the detective and challenge the medical
finding in the report. The accused must be permitted to see the
evidence against him. Need we say more?'' Id. at 57. The university
also violated respondent's rights by allowing the complainant to refuse
to answer questions relating to his defense. ``This deprived John of
his right to cross-examine Jane and impeded his ability to present
relevant evidence in support of his defense.'' Id. at 60.
In Norris v. Univ. of Colorado, Boulder, No. 1:18-CV-02243-LTB,
2019 WL 764568 (D. Colo. Feb. 21, 2019), the Court discussed cases
holding that ``a lack of meaningful cross-examination may contribute to
a violation of due process rights of an accused student in a
disciplinary hearing regarding sexual assault. . . . So with the
credibility of the parties in the investigation at issue . . ., the
lack of a full hearing with cross-examination provides evidence
supporting a claim for a violation of his due process rights.'' Id. at
*15 (emphasis added).
One of the cases Norris cited for the proposition that cross-
examination must be ``meaningful'' was Gischel v. Univ. of Cincinnati,
302 F. Supp. 3d 961 (S.D. Ohio 2018). In that case, the Court found a
viable procedural due process claim based on allegations that a hearing
panel refused to ask entire categories of questions plaintiff deemed
critical to his defense. This included questions to the complainant
regarding her ``inconsistent or inaccurate statements about how much
she drank, the last events she remembered, and whether she was
drugged.'' Id. at 978-79.
In Oliver v. University of Texas Southwestern Medical School, No.
3:18-CV-1549-B, 2019 WL 536376 (N.D. Tex. Feb. 11, 2019), the Court
denied the university's motion to dismiss a student's procedural due
process and Title IX claims. ``[B]ased on Oliver's allegations, it
appears that UTSW did not present any witnesses to the alleged assault
for Oliver to effectively cross-examine such as Rowan [the
complainant], nor did UTSW present key evidence [including audio files
which plaintiff eventually proved the complainant had doctored, and
pictures which established that complainant's bruises were from an
injury at work, before the parties' alleged encounter]. . . . The Court
recognizes that neither the Supreme Court nor the Fifth Circuit has
explicitly required any one of these procedures. But taken together,
the allegations show Oliver was not afforded sufficient procedural
mechanisms in light of the facts and circumstances of this case and
what he stood to lose. . . . [T]here was a substantial risk of
erroneously depriving Oliver's interests through the procedures used,
and the probable value of disclosing that evidence or having Rowan
testify is clearly shown.'' Id. at *11, 13. The Court reached this
conclusion without citing the Sixth Circuit cases, basing its decision
on ``the minimum procedural due-process required in previous cases''
decided by the Fifth Circuit and the Supreme Court. Id. at *13.
Regarding plaintiff's Title IX claim, the Court held that the
``inference of gender bias in the erroneous outcome is further
exacerbated by the fact that Oliver was never given access to the
incriminating evidence against him nor was Rowan required to testify
against him at trial, which significantly limited his ability to mount
a viable defense.'' Id. at *18.
In Doe v. Univ. of Mississippi, No. 3:18-CV-138-DPJ-FKB, 2019 WL
238098 (S.D. Miss. Jan. 16, 2019), the Court denied a university's
motion to dismiss a student's due process claim, in part because the
student plausibly alleged that allowing him to cross-examine his
accuser would have added ``some value to the hearing.'' Id. at *10. The
Court cited a 1970 U.S. Supreme Court opinion for the principle that
```[i]n almost every setting where important decisions turn on
questions of fact, due process requires an opportunity to confront and
cross-examine adverse witnesses.''' Id. at *9 (internal citation
omitted). The Court also said that, even though the Fifth Circuit has
not ruled on the specific issue, it was proper to address the need for
cross-examination under the factors set forth in Mathews v. Eldridge,
424 U.S. 319, 332 (1976). Id. at *9. Mathews held that procedural due
process ``imposes constraints on governmental decisions which deprive
individuals of `liberty' or `property' interests within the meaning of
the Due Process Clause of the Fifth or Fourteenth Amendment.'' Id. at*
6 (citing Mathews). In the context of school disciplinary proceedings,
courts applying Mathews consider three factors: ```(a) the student's
interests that will be affected; (b) the risk of an erroneous
deprivation of such interests through the procedures used and the
probable value, if any, of additional or substitute procedural
safeguards; and (c) the university's interests, including the burden
that additional procedures would entail.''' Id. (citing Plummer v.
Univ. of Houston, 860 F.3d 767, 773 (5th Cir. 2017). The university
argued that requiring cross-examination would significantly burden it,
but the Court stated that the Sixth Circuit does not require cross-
examination in every case [as I noted above] and cited a Supreme Court
case noting the ``need for cross-examination `where governmental action
seriously injures an individual, and the reasonableness of the action
depends on fact findings.''' Id. at *10 (internal citation omitted).
In Doe v. Marymount Univ., 297 F. Supp. 3d 573, 584 (E.D. Va.
2018), the Court denied a motion to dismiss a student's Title IX claim,
holding among other thing that allegations that the student ``was
deprived the opportunity to identify and interview potential witnesses,
to gather exculpatory evidence, to meet with the adjudicator in person,
and to cross-examine [complainant], . . . taken together, [] warrant
concern that [respondent] was denied a full and fair hearing.'' Id. at
584.
In Powell v. Montana State Univ., No. CV 17-15-BU-SEH, 2018 WL
6728061 (D. Mont. Dec. 21, 2018), the Court denied a university's
motion for summary judgment on a student's due process claims, in part
because he was denied the right to cross-examine a witness against him.
The Court cited the Sixth Circuit's decisions and said they were
consistent with Ninth Circuit precedent expressing the view that ``a
charge resulting in a disciplinary suspension of a student `may require
more formal procedures' to satisfy components of our system of
constitutional due process.'' Id. at *7 (internal citations omitted).
In Lee v. University of New Mexico, No. 17-1230, Order, at 2-3
(D.N.M. Sept. 20, 2018), available at https://www.thefire.org/lee-v-
university-of-new-mexico/, the Court - citing only the Fourteenth
Amendment itself - denied a motion to dismiss a student's due process
claims, holding that ``Lee's allegations plausibly support a finding
that his sexual misconduct investigation resolved into a problem of
credibility such that a formal or evidentiary hearing, to include the
cross-examination of witnesses and presentation of evidence in his
defense, is essential to basic fairness.''
In Doe v. Pennsylvania State Univ., 336 F. Supp. 3d 441 (M.D. Pa.
2018), the Court denied a motion to dismiss a student's due process
claims. The university used an ``Investigative Model'' in which a
hearing panel resolved cases based on a paper record compiled by an
investigator, with no in-person testimony and no opportunity for cross-
examination. In concluding this model raised constitutional concerns,
the Court emphasized ``PSU's interest in securing accurate resolutions
of student complaints like the one at issue here. PSU's educational
mission is, of course, frustrated if it allows dangerous students to
remain on its campuses. Its mission is equally stymied, however, if PSU
ejects innocent students who would otherwise benefit from, and
contribute to, its academic environment.'' Id. at 449 (Court's
emphasis).
When the panel determined Mr. Doe's responsibility
and sanction, it was relying solely on the Investigative Packet
and its written responses. Mr. Doe's main objection to this
paper-only Investigative Model is that it prohibited him from
telling his story directly to the panel, and from challenging
Ms. Roe's version of events before that panel. . . . In a case
like this, however, where everyone agrees on virtually all
salient facts except one--i.e., whether or not Ms. Roe
consented to sexual activity with Mr. Doe--there is really only
one consideration for the decisionmaker: credibility. After
all, there were only two witnesses to the incident, with no
other documentary evidence of the sexual encounter itself. As a
result, in this Court's view, the Investigative Model's virtual
embargo on the panel's ability to assess that credibility
raises constitutional concerns. Consequently, while this Court
is consistently ``mindful of [the Supreme Court's] admonition
[that j]udicial interposition in the operation of the public
school system of the Nation raises problems requiring care and
restraint,'' Defendants' motion to dismiss Mr. Doe's due
process claim for a failure to state a claim upon which relief
can be granted will be denied.
Id. at 450-51 (internal citations omitted).
In Doe v. Alger, 175 F. Supp. 3d 646, 661-662 (W.D. Va. 2016), the
Court held a male student adequately alleged a procedural due process
violation where a university appeal panel reversed a decision that
cleared the student of alleged rape, without hearing live testimony
despite the credibility issues. In a later opinion, the Court granted
summary judgment to the student. 228 F. Supp. 3d 713 (W.D. Va. 2016).
Question 5. Are there rules or guidelines institutions should adopt
to govern the live questioning of witnesses or parties in campus
disciplinary proceedings? If so, do you have specific suggestions on
what rules or guidelines institutions should adopt?
Answer 1. Yes. As the Sixth Circuit observed in Baum and Senator
Alexander suggested at the hearing, the concern that direct interaction
between an accuser and accused will cause trauma does not justify
denying cross-examination altogether, but the concern can be mitigated
by allowing ``the accused student's agent to conduct cross-examination
on his behalf. After all, an individual aligned with the accused
student can accomplish the benefits of cross-examination--its
adversarial nature and the opportunity for follow-up--without
subjecting the accuser to the emotional trauma of directly confronting
her alleged attacker.'' Baum, 903 F.3d at 583. Schools can, should, and
do adopt measures to ensure respectful treatment of parties and
witnesses and prevent irrelevant, unfair, or badgering questions.
Schools can also allow a witness or party to be questioned outside the
other party's physical presence, e.g., by using a witness screen or
allowing questioning via Skype. See id. & n.3. For cross-examination to
be meaningful, however, the parties and decisionmakers must be able to
observe people as they testify, whether live or through electronic
means. Id.
Question 6. 6. Do you have any specific suggestions on what
guidelines or parameters, if any, should be used when informal
resolution methods, such as mediation or restorative justice, are
selected as a way to resolve sexual misconduct allegations, including
sexual assaults?
Answer 6. Yes. Schools should establish in advance the kinds of
informal resolutions they will offer, and should publicize the
availability of informal resolution processes. When a complaint is
filed, schools should notify both parties clearly and prominently that
informal resolution is available, what it would involve, and the
consequences of participating in it (including whether a student who
opts to participate could later change his or her mind, and whether
statements made during an informal resolution could later be used in a
formal proceeding if one occurs). It would be appropriate for schools
to encourage informal resolution - as the University of Washington does
in its procedures for faculty - but they should not pressure parties to
participate in an informal process. An informal resolution should
proceed only if both parties give voluntary, written consent. Informal
resolutions should be facilitated by a person or persons who are
trained and skilled in the process, and should be conducted in a way
that is fair and respectful to both parties.
Question 7. Should institutions be able to implement a statute of
limitations to report an allegation of sexual misconduct, including
sexual assault?
Answer 7. Yes. I have frequently seen cases in which a complaint is
made to a school many months or years after an alleged incident
occurred. At that point memories have faded, witnesses may be
unavailable, and evidence may have been lost, making a fair and
reliable resolution virtually impossible. At the same time, as long as
both complainant and respondent attend the school, the school has an
interest in addressing alleged sexual harassment or assault, and in
some circumstances may have a legal obligation. There are different
ways to approach this issue, and I would recommend it be addressed with
input from many stakeholders. A few points to consider:
A school could adopt a time limit with a provision it
will consider significant extenuating circumstances that
prevented the complaint from being brought within the period.
Adopting and publicizing a limitations period could
encourage complainants to bring their complaints at a time when
they can be fairly and reliably resolved - to the benefit of
both complainants and respondents. If the time period is
reasonable and the school makes clear complaints are taken
seriously, that should not pose an undue deterrent to
reporting.
If an alleged act continues to have effects after the
limitations period expires, the school could address those
effects without opening a disciplinary process. The
Department's proposed regulations suggest various forms of non-
punitive supportive measures that may be appropriate apart from
a formal disciplinary process, finding, or sanction, including
``counseling, extensions of deadlines or other course-related
adjustments, modifications of work or class schedules, campus
escort services, mutual restrictions on contact between the
parties, changes in work or housing locations, leaves of
absence, increased security and monitoring of certain areas of
the campus, and other similar measures.'' Proposed 34 CFR Sec.
106.30.
A school may provide that it will not conduct a
disciplinary proceeding if either the complainant or the
respondent no longer attends the school; indeed, the school may
not have jurisdiction in those circumstances. Regardless, a
complainant who is still enrolled could be given supportive
measures.
While this was not addressed in Senator Alexander's written
questions, the Senator asked me during the hearing whether a
respondent's testimony in a Title IX proceeding could be used against
him in a criminal proceeding. I answered that it could, and I would
like to supplement that answer here. The risk is very real,
particularly when students are questioned without legal representation
or without proper notice of the accusations against them. A 2015
article describes the case of a University of Wisconsin student whose
statement during a Title IX investigation was used to arrest him. ``The
accused student denied the charges when interviewed by police, [Susan]
Riseling [a university administrator and then-campus police chief]
said. In his disciplinary hearing, however, he changed his story in an
apparent attempt to receive a lesser punishment by admitting he
regretted what had occurred. That version of events was `in direct
conflict with what he told police,' Riseling said. Police subpoenaed
the Title IX records of the hearing and were able to use that as
evidence against the student. `It's Title IX, not Miranda,' Riseling
said. `Use what you can.''' Jake New, Making Title IX Work, Inside
Higher Ed (July 6, 2015), https://www.insidehighered.com/news/2015/07/
06/college-law-enforcement-administrators-hear-approach-make-title-ix-
more-effective.
If a Title IX proceeding continues while a criminal investigation
is pending, a respondent's right to avoid self-incrimination must be
protected and no adverse inference should be drawn if the respondent
limits his participation or testimony.
senator warren
Question 1. According to data from the U.S. Department of Justice,
only one in five women who are sexually assaulted on campus will
actually report the attack to the police. \1\ What should Congress do
to encourage students to report incidences of harassment and assault?
---------------------------------------------------------------------------
\1\ U.S. Department of Justice, Office of Justice Programs, Bureau
of Justice Statistics. (2014). Rape and Sexual Victimization Among
College-Aged Females, 1995-2013. https://www.bjs.gov/content/pub/pdf/
rsavcaf9513.pdf.
Answer 1. With respect to the Department of Justice publication
referenced in the question, I would like to offer some points of
clarification. First, the publication stated that it was based on
responses to the National Crime Victimization Survey (for the period
1995-2013), and used the term ``victims'' to refer to people who
reported in the survey that they had been raped or assaulted. Second,
it stated that 20 percent of ``female victims ages 18 to 24 enrolled
part time or full time in a post-secondary institution'' reported to
police. For this figure, the publication did not address where alleged
assaults occurred or whether the alleged assaulter was a fellow
student, and specifically did not include reports to ``other officials
or administrators.'' Third, based on the survey, the publication set
forth a rate of rape or sexual assault of 6.1 per 1000 female college
students from 1995 to 2013, with the rate trending significantly
downwards, from 9 per 1000 in 1997 to 4.3 per 1000 in 2013. As set
forth in my written testimony, policymakers and advocates often claim
that one in five women is sexually assaulted in college, and the
Department of Justice's figures, generated by an office with
substantial experience in producing statistics for questions related to
crime and criminal activity, show a much lower rate - though, of
course, even one sexual assault is too many. Finally, I note that the
publication reported a rate of rape or sexual assault 1.2 times higher
for college-aged females not enrolled in a post-secondary school: 7.6
per 1000 from 1995 to 2013. Of course, survey responses and figures do
not prove sexual assault occurred. As I stated in my testimony and
discuss again below, a finding of sexual harassment or assault in a
---------------------------------------------------------------------------
specific case must depend on the individual facts of that case.
Turning to Senator Warren's question, given the focus of the HELP
Committee and the April 2 hearing, I assume the question pertains to
whether Congress should act to encourage students to report harassment
and assault to their schools.
First, in addressing that question, Congress should have a thorough
understanding of the measures that are already in place to encourage
reporting. Six years have passed since the last year referenced in the
Department of Justice's publication, and substantial progress has been
made. In my experience, schools are already doing a great deal to
encourage students to come forward if they encounter or witness
harassment or assault. Based on long-standing federal law, all colleges
and universities have a dedicated Title IX office, at least one and
often a number of Title IX coordinators, and specific Title IX policies
and procedures. These policies and procedures, published to students
and employees and generally available on line, explain the options for
reporting sexual harassment to the school or to law enforcement and the
procedures for making and resolving complaints to the school. Schools
offer continual training. They support advocacy groups. They host
awareness campaigns such as ``Take Back the Night'' and ``It's On Us.''
They provide extensive health and support services for students who
believe they have experienced sexual harassment or assault, including
services students can obtain without reporting to their Title IX
offices. In my experience, students in 2019 know they have recourse at
their schools, as well as through the criminal (and civil) justice
system. Under the current legal framework, students may make their own
decisions about whether or not to report an assault to the school and/
or police. The Department of Education, in its 2018 Notice of Proposed
Rulemaking, reported hearing ``from a wide range of stakeholders about
the importance of a school taking into account the wishes of the
complainant in deciding whether or not a formal investigation and
adjudication is warranted.'' \2\ Students' right to decide whether or
not to go to the police should also be respected.
---------------------------------------------------------------------------
\2\ Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance, https://
www.federalregister.gov/documents/2018/11/29/2018-25314/
nondiscrimination-on-the-basis-of-sex-in-education-programs-or-
activities-receiving-federal.
Second, while the goal of ensuring that any student who is sexually
harassed or assaulted feels comfortable in reporting the offense is a
commendable one, the central purpose of a grievance procedure should be
to ensure reliable results in particular cases. The overall goal must
be to ensure that campus disciplinary proceedings are fundamentally
fair to both parties; that each individual case is decided based on the
facts of that case, objectively and fairly assessed; and that no
student (whether complainant or respondent, and regardless of gender)
is unjustifiably deprived of access to an education. \3\
---------------------------------------------------------------------------
\3\ I emphasize that Title IX's right to equal access to education
means equal access for both complainants and respondents, regardless of
gender. Students who are accused of sexual harassment or assault are
routinely excluded from and denied the benefits of their school's
educational programs and activities, whether or not they are found
responsible. I explained this at length in response to Questions for
the Record from Senator Alexander, which I understand will be included
in the record for consideration by all Committee Members.
To that end, schools should: a) resolve, and publicize their
resolve, to take every complaint of sexual harassment or assault
seriously; b) resolve, and publicize their resolve, to ensure
complaints are handled through a process that is prompt and
fundamentally fair to both parties; c) make sure all members of the
school community know the school's policies and the protections
available to all parties; d) offer appropriate, non-punitive support
services to both parties, to increase the likelihood that they can
continue their education, whether or not conduct of concern rises to
the level of a particular definition of harassment and whether or not a
formal complaint is filed; e) offer the parties the option of
addressing a complaint through informal resolution processes; f) if a
formal proceeding does occur, provide a fundamentally fair process and
impartial decisionmakers; and g) educate the school community about the
importance of fair procedures in a nation committed to the rule of law
and the fact that both parties (as well as the schools themselves)
benefit from disciplinary procedures that are fair, prompt, and
reliable. Clear options for supportive measures and informal
resolutions, with steps to ensure fair procedures and reliable outcomes
if a formal grievance procedure takes place and with appropriate
education, should encourage students who encounter sexual harassment or
---------------------------------------------------------------------------
assault to report to and seek support from their schools.
Question 2. From your perspective, how would each of the following
aspects of the Department of Education's proposed rule,
``Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance,'' affect a
complainant's likelihood of reporting harassment or assault?
a. The live cross examination requirement;
b. The proposed definition of harassment, which would narrow
the scope of what incidences of sexual misconduct schools are
required to respond to;
c. The geographic location limitations, which would limit
instances where schools may respond to sexual harassment and
assault to school grounds, activities, and programs;
d. The clear and convincing standard requirement; and
e. The actual knowledge standard and requirements for filing
formal complaints.
I am not aware of empirical data connecting the specifics of campus
procedures to reporting patterns, and do not have a basis to answer the
question specifically.
That said, I will share my thoughts, based on my experience and
observations, on points a and d first, and then points b, c and e.
First, regarding points a and d, as discussed above and in my oral
and written testimony, measures to ensure fair procedures and reliable
outcomes in Title IX grievance procedures benefit both complainants and
respondents, and are increasingly being required by the courts. In my
written and oral testimony, I explained why live cross-examination is
essential to a fair proceeding, and cited cases allowing accused
students to sue their schools when they were not given the opportunity
to cross-examine their accusers. In my responses to questions for the
record from Senator Alexander, I cited additional cases reaching that
result, including at least a dozen since early 2018 alone. In my
written testimony, I also addressed the importance of the clear and
convincing standard, given the severe and life-long consequences of
sexual harassment or assault charges, the anti-respondent, anti-male
bias that pervades Title IX disciplinary proceedings now, and the need
to ensure schools reach just results, not simply adopt fairer
procedures on paper.
The Department of Education's proposed requirements regarding live
hearings and cross-examination and provisions regarding the standard of
evidence should also be considered in the context of the regulations as
a whole. As set forth in my written testimony, the Department proposes
to give schools and parties more flexibility to pursue informal, non-
punitive resolutions. Only if a case advances to the formal grievance
procedure will a live hearing and cross-examination be required, and
the standard of evidence applied. And those cases are particularly
likely to involve credibility issues and competing narratives, where
cross-examination is essential for determining the truth. When live
hearings and cross-examination do take place, the impact on students
can be mitigated with measures to ensure respectful treatment of
parties and witnesses; prevent irrelevant, unfair, or badgering
questions; and keep the parties separated by use of screens or
technology.
As California's Second Appellate District Court of Appeal held last
year, both parties suffer from unfair procedures that deny a full
testing of the allegations:
Due process-two preeminent words that are the lifeblood of our
Constitution. Not a precise term, but most everyone knows when it is
present and when it is not. It is often most conspicuous by its
absence. Its primary characteristic is fairness. It is self-evident
that a trial, an adjudication, or a hearing that may adversely affect a
person's life must be conducted with fairness to all parties. Here, a
university held a hearing to determine whether a student violated its
student code of conduct. Noticeably absent was even a semblance of due
process. When the accused does not receive a fair hearing, neither does
the accuser.
It is ironic that an institution of higher learning, where American
history and government are taught, should stray so far from the
principles that underlie our democracy. This case turned on the
Committee's determination of the credibility of the witnesses.
Credibility cannot be properly decided until the accused is given the
opportunity to adequately respond to the accusation. The lack of due
process in the hearing here precluded a fair evaluation of the
witnesses' credibility. In this respect, neither Jane nor John received
a fair hearing.
Doe v. Regents of Univ. of California, 28 Cal. App. 5th 44, 46, 61
(Cal. Ct. App. 2018) (emphasis added).
If institutions of higher education properly educate their
communities about the importance of fundamentally fair proceedings to
ensure fair and reliable outcomes, the options for supportive measures
and informal resolutions, and the protections available if live
hearings do occur, students who experience sexual harassment or assault
should be more rather than less willing to report to and seek support
from their schools. And if schools' procedures are fairer and more
reliable, they will also be less vulnerable to lawsuits. Litigation can
extend the life of an allegation for years, and will often require
complainants to sit for a deposition and/or provide documents, whether
or not they are parties.
Second, regarding points b, c, and e, I have no data that would
allow me to express an opinion on how these provisions could impact
reporting. As I stated in my written testimony, I believe commenters
have raised legitimate concerns about the proposed definitions and
conditions that give rise to schools' duty to respond, and there is
room for discussion and compromise. Counterproposals include, on the
one hand, expanded definitions of sexual harassment and the conditions
that give rise to a duty to respond, and, on the other, measures to
ensure schools do not circumvent key procedural protections by handling
cases of serious alleged misconduct outside of the Title IX process.
While this is beyond the scope of the issues I was asked to address at
the hearing, I encourage lawmakers and the Department to consider the
comments and requests for clarification regarding the Department's
proposed definitions of sexual harassment and sexual assault (Section
106.30 of the proposed regulations), the ``deliberate indifference''
standard (Section 106.44(a)); and the standards for what constitutes
conduct within a school's ``education program or activity'' (Section
106.44(a)).
senator rosen
Question 1. As others have expressed today, I am incredibly
concerned with the proposed rollbacks of Title IX protections for
sexual assault survivors and how they would jeopardize student safety,
particularly students in my home state of Nevada. Among other harmful
provisions, the Department of Education's proposed rule only allows
schools to investigate a report of sexual harassment if it occurred
``within a school's own program or activity.'' At University of Nevada
Las Vegas (UNLV) - a public university with the highest student
enrollment rate in my state - only 6 percent of full-time students
reside on campus. UNLV is a commuter campus, so the majority of
students experience sexual violence, harassment, or misconduct
involving fellow students outside the campus or university-sponsored
program or activity. Likewise, in a 2016 survey of sexual conduct and
campus safety, 79 percent of University of Nevada Reno students
reported that ``unwanted sexual conduct affecting students occurs off
campus''. And this doesn't even account for the many Nevadans who
attend other commuter campuses like Truckee Meadows Community College,
Nevada State College, and College of Southern Nevada. Changing the
rules so schools only have to respond if the incident occurred on
campus would have a direct negative impact on survivors of sexual
assault and harassment in Nevada. Just because assault or harassment
took place off campus, students may be forced to see their harasser on
campus every day, and their education can be impacted - potentially
resulting in them dropping out of school altogether.
a. Given that Title IX itself does not state that
discriminatory conduct must occur during a school activity for
there to be a discriminatory environment, how is this proposed
change appropriate?
b. Nevada institutions like UNLV have pledged to continue to
offer support and resources to survivors of off-campus
assaults, even if this rule goes into effect. Unfortunately,
not all schools will do the same. How will these changes affect
the rate of student reporting of sexual misconduct?
Answer 1. As background for my response, I note that Senator
Alexander, in his opening statement at the April 2 hearing, outlined
the statutes and binding regulations that govern campus Title IX
proceedings. As Senator Alexander also stated, the guidance documents
issued during the previous administration, including OCR's 2011 Dear
Colleague Letter and the 2014 Questions and Answers on Title IX Sexual
Violence, did not undergo formal rulemaking procedures and were not
legally binding, though OCR behaved as if they were - and schools
responded accordingly. In my written testimony, I described those
guidance documents and related actions by the federal government
between 2011 and 2016. Doubtless the government's actions were
motivated by the legitimate and necessary goal of making sure schools
take sexual harassment and assault seriously. However, as set forth in
my written testimony, the end result has been that schools have
essentially eliminated fundamental fairness and due process protections
for respondents - the great majority of whom are male - and have
undermined the legitimacy of campus disciplinary proceedings and
outcomes. Concerns about these developments have been voiced in public
and scholarly commentary, by universities and colleges, in several
state legislatures, and in an increasing number of opinions from
federal and state courts
In this context - including developing case law and escalating
concerns that individual Title IX complaints are not being justly
resolved - the Department of Education has modified its position on
Title IX enforcement. In September 2017, it withdrew the 2011 Dear
Colleague Letter and the 2014 Questions and Answers on Title IX Sexual
Violence, and released a new interim Q&A to guide schools on how to
investigate and adjudicate sexual misconduct allegations under federal
law. In November 2018, it issued a Notice of Proposed Rulemaking
including proposed amended Title IX regulations. The basic statutory
and regulatory framework that Senator Alexander summarized is still in
place, and still requires schools to provide a prompt, fair, and
impartial investigation and resolution. Court opinions also provide
roadmaps for what that entails.
Answer (a). In response to Senator Rosen's question a, as I stated
in my written testimony, I believe commenters have raised legitimate
concerns about the proposed definitions and conditions that give rise
to schools' duty to respond, including the standards for what
constitutes conduct within a school's ``education program or activity''
(Section 106.44(a) of the proposed regulations). Counterproposals
include, on the one hand, expansion of the conditions that give rise to
a duty to respond, and, on the other, measures to ensure schools do not
circumvent key procedural protections by handling cases of serious
alleged misconduct outside of the Title IX process. While this is
beyond the scope of the issues I was asked to address at the hearing, I
encourage lawmakers and the Department to consider the comments and
requests for clarification on that subject. I do note that the
Department stated in its Notice of Proposed Rulemaking that ``[w]hether
conduct occurs within a recipient's education program or activity does
not necessarily depend on the geographic location of an incident (e.g.,
on a recipient's campus versus off of a recipient's campus),'' and
cited case law developing standards for making this determination. \4\
---------------------------------------------------------------------------
\4\ Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance, 83 FR at 61468,
https://www.federalregister.gov/documents/2018/11/29/2018-25314/
nondiscrimination-on-the-basis-of-sex-in-education-programs-or-
activities-receiving-federal.
Answer (b). With respect to question b, I am not aware of empirical
data connecting the specifics of campus procedures to reporting
patterns, and do not have a basis to answer the question specifically.
In general, however, in my experience, the support services and
resources schools offer for students who believe they have experienced
sexual harassment or assault are available whether or not a student
wishes to file a complaint with the school's Title IX office. I am not
aware of any school that has announced it would cease offering support
and resources to students who report off-campus assault if the proposed
regulations go into effect. Any college or university president who did
so would likely face substantial, and deserved, campus criticism.
Moreover, while the goal of ensuring that any student who is sexually
harassed or assaulted feels comfortable in reporting the offense is a
commendable one, the central purpose of a grievance procedure should be
to ensure reliable results in particular cases. The overall goal for
Title IX grievance procedures must be to ensure that campus
disciplinary proceedings are fundamentally fair to both parties; that
each individual case is decided based on the facts of that case,
objectively and fairly assessed; and that no student - whether
complainant or respondent, and regardless of gender - is unjustifiably
deprived of access to an education. \5\
---------------------------------------------------------------------------
\5\ I emphasize that Title IX's right to equal access to education
means equal access for both complainants and respondents, regardless of
gender. Students who are accused of sexual harassment or assault are
routinely excluded from and denied the benefits of their school's
educational programs and activities, whether or not they are found
responsible. I explained this at length in response to Questions for
the Record from Senator Alexander, which I understand will be included
in the record for consideration by all Committee Members.
---------------------------------------------------------------------------
Senator Sanders
Question 1. As you know, Secretary DeVos rescinded guidance issued
by the Obama administration that helped schools understand their
responsibility to address campus sexual assault and ensure student
safety and rights. Colleges and universities are focused on policies
and procedures, the Department of Education ensures schools comply with
federal law and it seems students, faculty and visitors to campus are
an afterthought. Based on your experience working in the field of
criminal law, how should the views, perspectives and experiences of
students and various stakeholders taken into account to ensure that
everyone feels safer on campus?
Answer 1. I would like to open with some background regarding the
previous administration's guidance and where it fit within the
statutory and regulatory framework governing campus Title IX
proceedings.
As Senator Alexander outlined in his opening statement at the April
2 hearing, federal statutes and legally binding regulations forbid
gender discrimination and retaliation at federally funded educational
institutions (i.e., most colleges and universities in the United
States) and require prompt and equitable disciplinary proceedings.
These include Title IX itself, which provides that ``[n]o person in the
United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance,'' 20 U.S.C. Sec. 1681(a); the Jeanne
Clery Disclosure of Campus Security Policy and Campus Crime Statistics
Act, as amended in 2013, which states that school disciplinary
procedures for alleged sexual misconduct must ``provide a prompt, fair,
and impartial investigation and resolution,'' 20 U.S.C. Sec.
1092(f)(8)(B)(iv)(I)(aa); binding regulations implementing Title IX,
issued by the Department of Education and Department of Justice, which
require schools to ``adopt and publish grievance procedures providing
for prompt and equitable resolution of student . . . complaints
alleging any action which would be prohibited'' by Title IX and
implementing regulations, 34 C.F.R. 106.8(b) and 45 C.F.R. Sec.
86.8(b); and binding regulations implementing the Clery Act, which
specify the requirements for ``prompt, fair, and impartial''
proceedings, including notice, fair investigations, compliance with
schools' policies, transparency to both accuser and accused, equal
access to evidence, impartial officials, and explanations of ``the
rationale for the result and the sanctions,'' 34 C.F.R. Sec.
668.46(k). A guidance document issued by the Office for Civil Rights
(OCR) in 2001, after public notice and comment, also outlined the
elements of a fair and equitable process; stated that ``[a]ccording due
process to both parties involved, will lead to sound and supportable
decisions''; and made clear that Title IX's ``due process'' requirement
applies to both public and private colleges and universities. Revised
Sexual Harassment Guidance: Harassment of Students by School Employees,
Other Students, or Third Parties, at 2, 20, 22, https://www2.ed.gov/
about/offices/list/ocr/docs/shguide.pdf).
As Senator Alexander also stated in his opening, the guidance
documents issued during the previous administration, including OCR's
2011 Dear Colleague Letter and the 2014 Questions and Answers on Title
IX Sexual Violence, did not undergo formal rulemaking procedures and
were not legally binding, though OCR behaved as if they were - and
schools responded accordingly. In my written testimony, I described
those guidance documents and related actions by the federal government
between 2011 and 2016. Doubtless the government's actions were
motivated by the legitimate and necessary goal of making sure schools
take sexual harassment and assault seriously. However, as set forth in
my written testimony, the end result has been that schools have
essentially eliminated fundamental fairness and due process protections
for respondents - the great majority of whom are male - and have
undermined the legitimacy of campus disciplinary proceedings and
outcomes. Concerns about these developments have been voiced in public
and scholarly commentary, by universities and colleges, in several
state legislatures, and in an increasing number of opinions from
federal and state courts.
In this context - including developing case law and escalating
concerns that individual Title IX complaints are not being justly
resolved - the Department of Education has modified its position on
Title IX enforcement. In September 2017, it withdrew the 2011 Dear
Colleague Letter and the 2014 Questions and Answers on Title IX Sexual
Violence, and released a new interim Q&A to guide schools on how to
investigate and adjudicate sexual misconduct allegations under federal
law. In November 2018, it issued a Notice of Proposed Rulemaking
including proposed amended Title IX regulations. The basic statutory
and regulatory framework, summarized above, is still in place, and
still requires schools to provide a prompt, fair, and impartial
investigation and resolution. Court opinions also provide roadmaps for
what that entails.
While the goal of ensuring that everyone feels safer on campus is a
commendable one, the central purpose of a grievance procedure should be
to ensure reliable results in particular cases. The overall goal must
be to ensure that campus disciplinary proceedings are fundamentally
fair to both parties; that each individual case is decided based on the
facts of that case, objectively and fairly assessed; and that no
student - whether complainant or respondent, and regardless of gender -
is unjustifiably deprived of access to an education. \6\ The
stakeholders here are not just students and schools, but everyone
concerned with the long-term negative effects of government deprivation
of civil liberties.
---------------------------------------------------------------------------
\6\ I emphasize that Title IX's right to equal access to education
means equal access for both complainants and respondents, regardless of
gender. Students who are accused of sexual harassment or assault are
routinely excluded from and denied the benefits of their school's
educational programs and activities, whether or not they are found
responsible. I explained this at length in response to Questions for
the Record from Senator Alexander, which I understand will be included
in the record for consideration by all Committee Members.
Question 2. The Clery Act, amended by the Violence Against Women
Act (VAWA), requires colleges and universities across the United States
to disclose information about crime on and around their campuses. The
law applies to most institutions of higher education because it compels
compliance in order to participate in federal student financial aid
programs. Again, based on your experience working in the field of
criminal law, are schools fully complying with the Clery Act? Is the
---------------------------------------------------------------------------
Department of Education properly enforcing the Clery Act and VAWA?
Answer 2. Respectfully, this question is not within the scope of my
experience in representing individual students.
Question 3. Colleges and universities seem to be struggling with
the repeal of the Obama Title IX rules since they provided much needed
guidance for institutions experiencing rising cases of sexual assault
and harassment. While Secretary DeVos has proposed new guidelines, they
are not in effect and have drawn criticism for favoring the rights of
the accused over those of the survivor and for not actually preventing
or addressing campus sexual assault. In the meantime, how can colleges
and universities strengthen their campus disciplinary process to ensure
that all students are safer on and near campus, especially if students
feel discouraged from coming forward about sexual assaults and other
acts of violence?
Answer 3. For background relevant to this question, please see my
response to Question 1 and my written testimony. As I have noted, the
basic statutory and regulatory framework governing Title IX proceedings
is still in place, and the courts have provided roadmaps for what is
required. While the Department has opened a notice and comment
proceeding for its proposed regulations, to ensure all stakeholders are
heard before legally binding regulations are issued, it has issued
interim guidance for schools on how to investigate and adjudicate
allegations under federal law.
Regarding the concern that students ``feel discouraged from coming
forward,'' I note that, in my experience, schools are already doing a
great deal to encourage students to come forward if they encounter or
witness sexual harassment or assault. Based on long-standing federal
law, all colleges and universities have a dedicated Title IX office, at
least one and often a number of Title IX coordinators, and specific
Title IX policies and procedures. These policies and procedures,
published to students and employees and generally available on line,
explain the options for reporting sexual harassment to the school or to
law enforcement and the procedures for making and resolving complaints.
Schools offer continual training. They support advocacy groups. They
host sexual awareness campaigns such as ``Take Back the Night'' and
``It's On Us.'' They provide extensive health and support services for
students who believe they have experienced sexual harassment or
assault, including services students can obtain without reporting to
their Title IX offices. In my experience, students in 2019 know that
they have recourse at their schools, as well as through the criminal
(and civil) justice system. Under the current legal framework, students
may make their own decisions about whether or not to report an assault
to the school and/or police.
In addition, as I said with respect to the goal of ensuring people
feel safe, the goal of encouraging students to come forward about
sexual assault is a commendable one, but the central purpose of a
grievance procedure should be to ensure reliable results in particular
cases. To that end, schools should: a) resolve, and publicize their
resolve, to take every complaint of sexual harassment or assault
seriously; b) resolve, and publicize their resolve, to ensure
complaints are handled through a process that is prompt and
fundamentally fair to both parties; c) make sure all members of the
school community know the school's policies and the protections
available to all parties; d) offer appropriate, non-punitive support
services to both parties, to increase the likelihood that they can
continue their education, whether or not conduct of concern rises to
the level of a particular definition of harassment and whether or not a
formal complaint is filed; e) offer the parties the option of
addressing a complaint through informal resolution processes; f) if a
formal proceeding does occur, provide a fundamentally fair process and
impartial decisionmakers; and g) educate the school community about the
importance of fair procedures in a nation committed to the rule of law
and the fact that both parties (as well as the schools themselves)
benefit from disciplinary procedures that are fair, prompt, and
reliable. Clear options for supportive measures and informal
resolutions, with steps to ensure fair procedures and reliable outcomes
if a formal grievance procedure takes place and with appropriate
education, should encourage students who encounter sexual harassment or
assault to report to and seek support from their schools.
Measures to ensure fair procedures and reliable outcomes in Title
IX grievance procedures benefit both complainants and respondents, as
well as the schools themselves, and are increasingly being required by
the courts. In my written and oral testimony, I explained why live
hearings and cross-examination in particular are essential to a fair
proceeding, and cited cases allowing accused students to sue their
schools when they were not given the opportunity to cross-examine their
accusers. In my responses to questions for the record from Senator
Alexander, I cited additional cases reaching that result, including at
least a dozen since early 2018 alone. In my written testimony, I also
addressed the importance of the clear and convincing standard, given
the severe and life-long consequences of sexual harassment or assault
charges, the anti-respondent, anti-male bias that pervades Title IX
disciplinary proceedings now, and the need to ensure schools reach just
results, not simply adopt fairer procedures on paper.
The Department of Education's proposed requirements regarding live
hearings and cross-examination and provisions regarding the standard of
evidence should also be considered in the context of the regulations as
a whole. As set forth in my written testimony, the Department proposes
to give schools and parties more flexibility to pursue informal, non-
punitive resolutions. Only if a case advances to the formal grievance
procedure will a live hearing and cross-examination be required, and
the standard of evidence applied. And those cases are particularly
likely to involve credibility issues and competing narratives, where
cross-examination is essential for determining the truth. When live
hearings and cross-examination do take place, the impact on students
can be mitigated with measures to ensure respectful treatment of
parties and witnesses; prevent irrelevant, unfair, or badgering
questions; and keep the parties separated by use of screens or
technology.
As California's Second Appellate District Court of Appeal held last
year, both parties suffer from unfair procedures that deny a full
testing of the allegations:
Due process-two preeminent words that are the lifeblood of our
Constitution. Not a precise term, but most everyone knows when
it is present and when it is not. It is often most conspicuous
by its absence. Its primary characteristic is fairness. It is
self-evident that a trial, an adjudication, or a hearing that
may adversely affect a person's life must be conducted with
fairness to all parties. Here, a university held a hearing to
determine whether a student violated its student code of
conduct. Noticeably absent was even a semblance of due process.
When the accused does not receive a fair hearing, neither does
the accuser.
It is ironic that an institution of higher learning, where
American history and government are taught, should stray so far
from the principles that underlie our democracy. This case
turned on the Committee's determination of the credibility of
the witnesses. Credibility cannot be properly decided until the
accused is given the opportunity to adequately respond to the
accusation. The lack of due process in the hearing here
precluded a fair evaluation of the witnesses' credibility. In
this respect, neither Jane nor John received a fair hearing.
Doe v. Regents of Univ. of California, 28 Cal. App. 5th 44, 46, 61
(Cal. Ct. App. 2018) (emphasis added).
If institutions of higher education properly educate their
communities about the importance of fundamentally fair proceedings to
ensure fair and reliable outcomes, the options for supportive measures
and informal resolutions, and the protections available if live
hearings do occur, students who experience sexual harassment or assault
should be more rather than less willing to report to and seek support
from their schools. And if schools' procedures are fairer and more
reliable, they will also be less vulnerable to lawsuits. Litigation can
extend the life of an allegation for years, and will often require
complainants to sit for a deposition and/or provide documents, whether
or not they are parties.
Finally, I would like to express my concern about the use of the
term ``survivor'' in this context. A campus Title IX disciplinary
tribunal hears allegations between a complainant and a respondent, or
between an accuser and an accused--not between ``the accused [and] the
survivor.'' Deeming the complainant a survivor prejudges the outcome of
the case. As the U.S. District Court of Massachusetts held in Doe v.
Brandeis University, ``Whether someone is a `victim' is a conclusion to
be reached at the end of a fair process, not an assumption to be made
at the beginning. Each case must be decided on its own merits,
according to its own facts.'' \7\ A fair system - designed not to
prejudge the case but to treat both parties with respect and to ensure
that the school's goal is to determine the truth of the allegations -
remains the best way to ensure safety for all students without
denigrating the rights of any.
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\7\ Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 573 (D. Mass.
2016).
Question 4. What changes to Secretary DeVos' proposed Title IX
guidance would you recommend to ensure that the administration does not
create a campus sexual assault disciplinary process that favors
wealthier students and their families who can afford attorneys and
consultants to guide them through the labyrinth of filing a formal
complaint with the ``appropriate person,'' notification requirements,
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live cross examinations, and extensive knowledge of criminal procedure?
Answer 4. As I have stated, fundamentally fair campus proceedings
are essential and required by law. \8\ In my experience, under the
system as it exists now, schools generally make very substantial
efforts to ensure that reporting is easy and provide complainants ample
support and resources throughout the process, including access to
advisors trained in advocating for reported victims of sexual assault.
Respondents have commonly not received the same support or resources,
and they have been the ones who need money and connections to protect
themselves. I have frequently seen cases in which school policies are
unclear and internally inconsistent. Sometimes school officials
themselves do not understand their own policies and have not given
accused students even the most basic protections, such as notice,
access to evidence, and impartial decisionmakers. The existing system
has been particularly detrimental to poor students, and
disproportionately students of color. \9\
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\8\ It is important to note that Title IX proceedings are not
criminal proceedings, though the consequences for respondents can be
severe and permanent.
\9\ See Emily Yoffe, The Question of Race in Campus Sexual-Assault
Cases; Is the system biased against men of color?, The Atlantic (Sept.
11, 2017), https://www.theatlantic.com/education/archive/2017/09/the-
question-of-race-in-campus-sexual-assault-cases/539361/; Ben
Trachtenberg, How University Title IX Enforcement and Other Discipline
Processes (Probably) Discriminate Against Minority Students,18 Nevada
Law Journal 107 (Fall 2017), https://papers.ssrn.com/sol3/
papers.cfm?abstract--id=3035999 (``increasingly muscular Title IX
enforcement--launched with the best of intentions in response to real
problems-- almost certainly exacerbates yet another systemic barrier to
racial justice and equal access to educational opportunities''). Please
also see my answers to Senator Alexander's QFRs, where I cite comments
filed by students and their families who have suffered harm from unfair
campus procedures, including through substantial legal bills.
Procedures that are fundamentally fair and transparent will make it
more rather than less likely that students without economic means will
be treated fairly. And the Department's proposals encourage schools to
provide support and resources for both parties, regardless of whether a
formal complaint is filed and regardless of whether the alleged conduct
fits certain regulatory definitions, and give schools and parties more
flexibility to pursue informal resolution. These provisions offer a
path to resolve matters at lower economic and emotional cost to both
parties. I do believe policymakers and schools should give more
consideration to how to ensure that both parties have suitable, trained
advisors if a formal grievance proceeding takes place and a live
hearing with cross-examination is necessary.
Response by Fatima Goss Graves to Questions of Senator Warren, Senator
Rosen, and Senator Sanders
senator warren
Question 1. According to data from the U.S. Department of Justice,
only one in five women who are sexually assaulted on campus will
actually report the attack to the police. \1\ What should Congress do
to encourage students to report incidences of harassment and assault?
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\1\ U.S. Department of Justice, Office of Justice Programs, Bureau
of Justice Statistics. (2014). Rape and Sexual Victimization Among
College-Aged Females, 1995-2013. https://www.bjs.gov/content/pub/pdf/
rsavcaf9513.pdf.
Answer 1. Congress should ensure that federal policies and
enforcement mechanisms are designed to ensure students feel safe to
report sexual harassment and sexual assault, and that campuses will
take each report of sexual harassment, including sexual assault,
seriously. This includes requiring that schools respond to sexual
harassment that they know or reasonably should know about and
investigate online and off-campus conduct, and that schools have
equitable grievance procedures that will not re-traumatize complainants
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or deter them from participating in the grievance process.
Question 2. From your perspective, how would each of the following
aspects of the Department of Education's proposed rule,
``Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance,'' affect a
complainant's likelihood of reporting harassment or assault? a. The
live cross examination requirement:
Answer 2. The proposed rules ignore the devastating impact of
sexual violence and other forms of sexual harassment in schools.
Instead of effectuating Title IX's purpose of protecting students and
school employees from sexual abuse and other forms of sexual harassment
that is, from unlawful sex discrimination they will make it harder for
individuals to report abuse, allow (and sometimes require) schools to
ignore reports when they are made, and unfairly tilt the investigation
process in favor of respondents, to the direct detriment of survivors.
Question (a) The live cross examination requirement:
Answer a. Schools are ill-equipped to effectively meet the goals of
live cross-examination. In student misconduct proceedings, schools are
less likely to be equipped to apply general rules of evidence or trial
procedure or apply the procedural protections that witnesses have
during cross-examination in criminal or civil court proceedings \2\ and
ensure that they are not subject to improper questions. Nor is there a
judge available to rule on objections. Live cross-examination will also
only deter reporting of sexual assault and re-traumatize many
complainants participating in the process. The systems we build on
campus to investigate and address student reports of sexual harassment
must both enable truth-seeking and avoid perpetuating a hostile
environment. Direct cross-examination of a victim by his or her
assailant or the assailant's representative in campus misconduct
proceeding is likely to result in the latter without uniquely promoting
the former. Being asked detailed, personal, and humiliating questions
often rooted in gender stereotypes and rape myths that tend to blame
victims for the assault they experienced \3\ would understandably
discourage many students--parties and witnesses--from participating in
the grievance process, chilling those who have experienced or witnessed
harassment from coming forward. \4\ Any live cross-examination
requirement would also lead to sharp inequities, due especially to the
``huge asymmetry'' that would arise when respondents are able to afford
attorneys and complainants cannot. \5\ According to the president of
Association of Title IX Administrators (ATIXA), the live cross-
examination provision alone--``even with accommodations like
questioning from a separate room--would lead to a 50 percent drop in
the reporting of misconduct.'' \6\
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\2\ The proposed rules impose only mild restrictions on what it
considers ``relevant'' evidence. See proposed Sec. 106.45(b)(3)(vi)
(excluding evidence ``of the complainant's sexual behavior or
predisposition, unless such evidence about the complainant's sexual
behavior is offered to prove that someone other than the respondent
committed the conduct alleged'' or to prove consent).
\3\ Zydervelt, S., Zajac, R., Kaladelfos, A. and Westera, N.,
Lawyers' Strategies for Cross-Examining Rape Complainants: Have we
Moved Beyond the 1950s?, BRITISH JOURNAL OF CRIMINOLOGY, 57(3), 551-569
(2016).
\4\ See, e.g., Eliza A. Lehner, Rape Process Templates: A Hidden
Cause of the Underreporting of Rape, 29 YALE J. OF LAW & FEMINISM 207
(2018) (``rape victims avoid or halt the investigatory process'' due to
fear of ``brutal cross-examination''); Michelle J. Anderson, Women Do
Not Report the Violence They Suffer: Violence Against Women and the
State Action Doctrine, 46 VILL. L. REV. 907, 932 936-37 (2001)
(decision not to report (or to drop complaints) is influenced by
repeated questioning and fear of cross-examination); As one defense
attorney recently acknowledged, ``Especially when the defense is
fabrication or consent as it often is in adult rape cases you have to
go at the witness. There is no way around this fact. Effective cross-
examination means exploiting every uncertainty, inconsistency, and
implausibility. More, it means attacking the witness's very
character.'' Abbe Smith, Representing Rapists: The Cruelty of Cross-
Examination and Other Challenges for a Feminist Criminal Defense
Lawyer, 53 AM. CRIM. L. REV. 255, 290 (2016).
\5\ Andrew Kreighbaum, New Uncertainty on Title IX, INSIDE HIGHER
EDUCATION (Nov. 20, 2018), https://www.insidehighered.com/news/2018/11/
20/title-ix-rules-cross-examination-would-make-colleges-act-courts-
lawyers-say.
\6\ Id.
Many advocates of live cross-examination in school grievance
procedures, assume that cross-examination will improve the reliability
of a decision-maker's determinations of responsibility and allow them
to discern ``truth.'' \7\ But the reality is much more complicated,
particularly in schools, where procedural protections against abusive,
misleading, confusing, irrelevant, or inappropriate tactics are largely
unavailable. Empirical studies show that adults give significantly more
inaccurate responses to questions that involve the features typical of
cross-examination, like relying on leading questions, compound or
complex questions, rapid-fire questions, closed (i.e., yes or no)
questions, questions that jump around from topic to topic, questions
with double negatives, and questions containing complex syntax or
complex vocabulary. \8\ While these common types of questions are
likely to confuse adults and result in inaccurate or misleading
answers, these problems are compounded and magnified when such
questions are targeted at young people and minors. \9\ Moreover, there
are frequently civil rights investigations, including sexual harassment
investigations, held in the workplace settings without live cross-
examination, which clearly indicates that cross-examination is not the
only means to test the truth.
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\7\ See, e.g., 83 Fed. Reg. at 61476. The Department of Education
offers no evidence to support its assumption that live -cross
examination will improve the reliability of schools' determinations
regarding sexual assault; it merely cites a case which relies on John
Wigmore's evidence treatise. See id. (citing California v. Green, 399
U.S. 149, 158 (1970) (quoting John H. Wigmore, 5 Evidence sec. 1367, at
29 (3d ed., Little, Brown & Co. 1940))).
\8\ Emily Henderson, Bigger Fish to Fry: Should the Reform of
Cross-Examination Be Expanded Beyond Vulnerable Witnesses, 19(2)
INTERNATIONAL J. OF EVIDENCE AND PROOF 83, 84-85 (2015) (collecting
studies of adults).
\9\ Saskia Righarts, Sarah O'Neill & Rachel Zajac, Addressing the
Negative Effect of Cross-Examination Questioning on Children's
Accuracy: Can We Intervene?, 37 (5) LAW AND HUMAN BEHAVIOR 354, 354
(2013) (``Cross-examination directly contravenes almost every principle
that has been established for eliciting accurate evidence from
children.'').
Most fundamentally, any rule requiring institutions of higher
education to conduct live, quasi-criminal trials with live cross-
examination to address allegations of sexual harassment, when no such
requirement exists for addressing any other form of student or employee
misconduct at schools, communicates the message that those alleging
sexual assault or other forms of sexual harassment are uniquely
unreliable and untrustworthy. Implicit in requiring cross-examination
for complaints of sexual harassment, but not for complaints of other
types of student misconduct, is an extremely harmful, persistent, deep-
rooted, and misogynistic skepticism of sexual assault and other
harassment complaints. Sexual assault is already dramatically
underreported. This underreporting, which significantly harms schools'
ability to create safe and inclusive learning environments, will only
be exacerbated if any such reporting forces complainants into
traumatic, burdensome, and unnecessary procedures built around the
presumption that their allegations are false. This selective
requirement of cross-examination harms complainants and educational
---------------------------------------------------------------------------
institutions.
Unsurprisingly, Title IX experts, student conduct experts,
institutions of higher education, \10\ and mental health experts
overwhelmingly oppose live cross-examination. ATIXA, for example,
opposes live, adversarial cross-examination, instead recommending that
investigators ``solicit questions from the parties, and pose those
questions the investigators deem appropriate in the investigation
interviews.'' \11\ ASCA agrees that schools should ``limit[] advisors'
participation in student conduct proceedings.'' \12\ The American Bar
Association recommends that schools provide ``the opportunity for both
parties to ask questions through the hearing chair.'' \13\ The
Association of Independent Colleges and Universities in Massachusetts
(AICUM), representing 55 accredited, nonprofit institutions of higher
education, oppose the cross-examination requirement because it would
``deter complainants from coming forward, making it more difficult for
institutions to meet Title IX's very purpose preventing discrimination
and harassment, stopping it when it does occur, and remedying its
effects.'' \14\ The Association of American Universities (AAU),
representing 60 leading public and private universities, oppose the
requirement because it can be ``traumatizing and humiliating'' and
``undermines other educational goals like teaching acceptance of
responsibility.'' \15\ And over 900 mental health experts who
specialize in trauma state that subjecting a survivor of sexual assault
to cross-examination in the school's investigation would ``almost
guarantee[] to aggravate their symptoms of post-traumatic stress,'' and
``is likely to cause serious to harm victims who complain and to deter
even more victims from coming forward.'' \16\
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\10\ Letter from Pepper Hamilton to Sec'y Elisabeth DeVos at 15
(Jan. 30, 2019) [hereinafter Pepper Hamilton Comment], https://
www.pepperlaw.com/resource/35026/22G2, (``[A]dversarial cross-
examination will unnecessarily increase the anxiety of both parties
going through the process. For complainants in particular, this may
lead them to simply not come forward or utilize the school's process,
no matter how meritorious their claims may be. As a result, our
campuses will be less safe.''); Letter from Georgetown University to
Sec'y Elizabeth DeVos as 7 (Jan. 30. 2019), https://
georgetown.app.box.com/s/fwk978e3oai8i5hpq0wqa70cq9iml2re (``Mandatory
cross-examination by advisors will have a chilling effect on reporting
and therefore diminish accountability of perpetrators. We already know
that the majority of students who experience sexual misconduct never
proceed with a formal complaint. There is little doubt that the specter
of being cross-examined by a trained criminal defense attorney during a
school's grievance procedure would drive down the number of students
seeking redress through formal process even further.'').
\11\ ATIXA, ATIXA Position Statement on Cross-Examining: The Urge
to Transform College Conduct Proceedings into Courtrooms 1 (Oct. 5,
2018), available at https://atixa.org/wordpress/wp-content/uploads/
2018/10/ATIXA-Position-Statement--Cross-Examination-final.pdf.
\12\ Ass'n for Student Conduct Admin., ASCA 2014 White Paper:
Student Conduct Administration & Title IX: Gold Standard Practices for
Resolution of Allegations of Sexual Misconduct on College Campuses 2
(2014) [hereinafter ASCA 2014 White Paper], https://www.theasca.org/
Files/Publications/ASCA%202014%20White%20Paper.pdf.
\13\ Am. Bar Ass'n, ABA Criminal Justice Section Task Force On
College Due Process Rights and Victim Protections: Recommendations for
Colleges and Universities in Resolving Allegations of Campus Sexual
Misconduct 8-10 (June 2017) [hereinafter Am. Bar Ass'n Task Force].
\14\ Letter from Ass'n of Indep. Colls. and Univs. (AICUM) to
Sec'y Elisabeth DeVos (Jan.23, 2019) [hereinafter AICUM Letter], http:/
/aicum.org/wp-content/uploads/2019/01/AICUM-public-comments-on-Notice-
of-Proposed-Rulemaking-%E2%80%9CNPRM%E2%80%9D-amending-regulations-
implementing-Title-IX-of-the-Education-Amendments-of-1972-Title-
IX%E2%80%9D-Docket-ID-ED-2018-OCR-0064.pdf.
\15\ See Letter from Ass'n of Am. Univs. (AAU) to Brittany Bull
(Jan. 24, 2019) [hereinafter AAU Letter], https://www.aau.edu/sites/
default/files/AAU-Files/Key-Issues/Higher-Education-Regulation/AAU-
Title-IX-Comments-1-24-19.pdf.
\16\ Letter from 903 Mental Health Professionals and Trauma
Specialists to Ass't Sec'y Kenneth L. Marcus at 3 (Jan. 30, 2019)
[hereinafter Mental Health Professionals Letter], https://nwlc.org/wp-
content/uploads/2019/01/Title-IX-Comment-from-Mental-Health-
Professionals.pdf.
Question b. The proposed definition of harassment, which would
narrow the scope of what incidences of sexual misconduct schools are
---------------------------------------------------------------------------
required to respond to;
Answer b. The Department's proposed rules would also require
schools to dismiss all complaints of sexual harassment that do not meet
its proposed narrow definition. The proposed rules \17\ define sexual
harassment as (1) ``[a]n employee of the recipient conditioning the
provision of an aid, benefit, or service of the recipient on an
individual's participation in unwelcome sexual conduct''; (2)
``[u]nwelcome conduct on the basis of sex that is so severe, pervasive,
and objectively offensive that it effectively denies a person equal
access to the [school's] education program or activity''; or (3)
``[s]exual assault, as defined in 34 CFR 668.46(a).'' The proposed
rules mandate dismissal of all complaints of harassment that do not
meet this standard. Thus, if a complaint did not allege quid pro quo
harassment by an employee or sexual assault, a school would be required
to dismiss a student's Title IX complaint if the harassment has not yet
advanced to a point that it is actively harming a student's education.
A school would be required to dismiss such a complaint even if it
involved harassment by a teacher or other school employee. A school
would be required to dismiss such a complaint even if the school would
typically take action to address behavior that was not based on sex but
was similarly harassing, disruptive, or intimidating. The Department's
proposed definition is out of line with Title IX purposes and
precedent, discourages reporting, unjustifiably creates a higher
standard for sexual harassment than other types of harassment and
misconduct, and excludes many forms of sexual harassment that interfere
with equal access to educational opportunities.
---------------------------------------------------------------------------
\17\ Sec. Sec. 106.30 and 106.45(b)(3).
Acting arbitrarily, the Department does not provide a compelling or
persuasive justification to change the definition of sexual harassment
from that in the 2001 Guidance, which defines sexual harassment as
``unwelcome conduct of a sexual nature'' \18\ The current definition
rightly charges schools with responding to harassment before it
escalates to a point that students suffer severe harm. But under the
Department's proposed, narrower definition of harassment, students
would be forced to endure repeated and escalating levels of abuse, from
a student or professor, before their schools would be permitted to take
steps to investigate and stop the harassment.
---------------------------------------------------------------------------
\18\ Id.
The Department's proposed definition is also vague and complicated.
Administrators, employees, and students would struggle to understand
which complaints meet the standard. These difficulties would be
significantly compounded for students with developmental disabilities.
Students confronted with this lengthy, complicated definition of sexual
harassment would have a hard time understanding whether the harassment
they endured meets the Department's narrow standard. How would these
students know what allegations and information to put in their formal
complaint in order to avoid mandatory dismissal? A student may believe
that she suffered harassment that was both severe and pervasive, but
does she know whether it was also ``objectively offensive'' and whether
it ``effectively denied'' her of ``equal access'' to a ``program or
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activity?''
The Department's proposed definition would discourage students from
reporting sexual harassment. Already, the most commonly cited reason
for students not reporting sexual harassment is the fear that it is
``insufficiently severe'' to yield a response. \19\ Moreover, if a
student is turned away by her school after reporting sexual harassment
because it does not meet the proposed narrow definition of sexual
harassment, the student is even more unlikely to report a second time
when the harassment escalates. Similarly, if a student knows of a
friend or classmate who was turned away after reporting sexual
harassment, the student is unlikely to make even a first report. By the
time a student reports sexual harassment that the school can or must
respond to, it may already be too late: because of the impact of the
harassment, the student might already be ineligible for an important
course for her major, disqualified from applying to a dream graduate
program, or derailed from graduating altogether.
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\19\ Kathryn J. Holland & Lilia M. Cortina, ``It Happens to Girls
All the Time'': Examining Sexual Assault Survivors' Reasons for Not
Using Campus Supports'', 59 AM. J. COMMUNITY PSYCHOL. 50, 61 (2017),
available at https://doi.org/10.1002/ajcp.12126.
Finally, the Department's harassment definition and mandatory
dismissal requirement would create inconsistent rules for sexual
harassment as compared to other misconduct. Harassment based on race or
disability, for example, would continue to be governed by the more
inclusive ``severe or pervasive'' standard for creating a hostile
educational environment. \20\ And schools could address harassment that
was not sexual in nature even if that harassment was not ``severe and
pervasive'' while, at the same time, being required to dismiss
complaints of similar conduct if it is deemed sexual. This would create
inconsistent and confusing rules for schools in addressing different
forms of harassment. It would send a message that sexual harassment is
less deserving of response than other types of harassment and that
victims of sexual harassment are inherently less deserving of
assistance than victims of other forms of harassment. It would also
force students who experience multiple and intersecting forms of
harassment to slice and dice their requests for help from their schools
in order to maximize the possibility that the school might respond,
carefully excluding reference to sexual taunts and only reporting
racial slurs by a harasser, for example. \21\
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\20\ See e.g., National R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 116 (2002) (applying ``severe or pervasive'' standard to racial
discrimination hostile work environment claim).
\21\ See Joanna L. Grossman & Deborah L. Brake, A Sharp Backward
Turn: Department of Education Proposes to Protect Schools, Not
Students, in Cases of Sexual Violence, VERDICT (Nov. 29, 2018),
available at https://verdict.justia.com/2018/11/29/a-sharp-backward-
turn-department-of-education-proposes-to-protect-schools-not-students-
in-cases-of-sexual-violence.
Question c. The geographic location limitations, which would limit
instances where schools may respond to sexual harassment and assault to
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school grounds, activities, and programs;
Answer c. The Department's proposed rules would also require
schools to dismiss all complaints of off-campus or online sexual
harassment that happen outside of a school-sponsored program--even if
the student is forced to see their harasser at school every day and the
harassment directly impacts their education as a result. The proposed
rules conflict with Title IX's statutory language, which does not
depend on where the underlying conduct occurred but instead prohibits
discrimination that ``exclude[s a person] from participation in, . . .
denie[s a person] the benefits of, or . . . subject[s a person] to
discrimination under any education program or activity . . . .'' \22\
For almost two decades, the Department's guidance documents have agreed
that schools are responsible for addressing sexual harassment if it is
``sufficiently serious to deny or limit a student's ability to
participate in or benefit from the education program,'' \23\ regardless
of where it occurs. \24\ No student who experiences out-of-school
harassment should be forced to wait until they are sexually harassed
again on school grounds or during a school activity in order to receive
help from their school. Nor should they be required to sit in class
next to their assailant with no recourse.
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\22\ 20 U.S.C. Sec. 1681(a).
\23\ U.S. Dep't of Educ., Office for Civil Rights, Revised Sexual
Harassment Guidance: Harassment of Students by School Employees, Other
Students, or Third Parties (2001) [hereinafter 2001 Guidance], https://
www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf.
\24\ U.S. Dep't of Educ. Office for Civil Rights, Questions and
Answers on Campus Sexual Misconduct (Sept. 2017) [hereinafter 2017
Guidance] at 1 n.3, https://www2.ed.gov/about/offices/list/ocr/docs/qa-
title-ix-201709.pdf (``Schools are responsible for redressing a hostile
environment that occurs on campus even if it relates to off-campus
activities''); 2014 Guidance (``a school must process all complaints of
sexual violence, regardless of where the conduct occurred''); 2011
Guidance (``Schools may have an obligation to respond to student-on-
student sexual harassment that initially occurred off school grounds,
outside a school's education program or activity''); U.S. Dep't of
Educ. Office for Civil Rights, Dear Colleague Letter: Harassment and
Bullying (Oct. 26, 2010) at 2 [hereinafter 2010 Guidance], https://
ww2ed.gov/about/offices/ list/ocr/letters/colleague-201104.pdf (finding
Title IX violation where ``conduct is sufficiently severe, pervasive,
or persistent so as to interfere with or limit a student's ability to
participate in or benefit from the services, activities, or
opportunities offered by a school,'' regardless of location of
harassment).
Sexual harassment and assault also occur both on-campus and in off-
campus spaces closely associated with school. Nearly nine in ten
college students live off campus. \25\ According to a 2014 U.S.
Department of Justice report, 95 percent of sexual assaults of female
students ages 18-24 occur outside of school. \26\ Forty-one percent of
college sexual assaults involve off-campus parties \27\ and many
fraternity and sorority houses are very much a part of the school
community but physically located off campus. Students are also far more
likely to experience sexual assault if they are in a sorority (nearly
one and a half times more likely) or fraternity (nearly three times
more likely). \28\ But under the proposed rules, if a college or
graduate student is sexually assaulted by a classmate in off-campus
housing, their university would be required to dismiss their
complaint--even though almost nine in ten college students live off
campus. \29\ The proposed rules would also pose particular risks to
students at community colleges and vocational schools. Approximately
5.8 million students attend community college (out of 17.0 million
total undergraduate students), \30\ and 16 million students attend
vocational school. \31\ But because very few of these students live on
campus, the harassment they experience by faculty or other students is
especially likely to occur outside of school, and therefore outside of
the protection of the proposed Title IX rules. Finally, proposed Sec.
106.8(d) would create a unique harm to the 10 percent of U.S.
undergraduate students who participate in study abroad programs. If any
of these students report experiencing sexual harassment during their
time abroad, including within their study abroad program, their schools
would be required to dismiss their complaints--even if they are forced
to see their harasser in the study abroad program every day, and even
if they continue to be put into close contact with their harasser when
they return to their home campus.
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\25\ Rochelle Sharpe, How Much Does Living Off-Campus Cost? Who
Knows?, N.Y. TIMES (Aug. 5, 2016) [hereinafter How Much Does Living
Off-Campus Cost?], https://www.nytimes.com/2016/08/07/education/edlife/
how-much-does-living-off-campus-cost-who-knows.html (87 percent).
\26\ U.S. Dep't of Justice, Bureau of Justice Statistics, Rape and
Sexual Assault Victimization Among College-Age Females, 1995-2013 at 6
(Dec. 2014), https://www.bjs.gov/content/pub/pdf/rsavcaf9513.pdf.
\27\ United Educators, Facts From United Educators' Report -
Confronting Campus Sexual Assault: An Examination of Higher Education
Claims (2015), https://www.ue.org/sexual--assault--claims--study.
\28\ Jennifer J. Freyd, The UO Sexual Violence and Institutional
Betrayal Surveys: 2014, 2015, and 2015-2016 (Oct. 16, 2014), available
at https://www.uwire.com/2014/10/16/sexual-assault-more-prevalent-in-
fraternities-and-sororities-study-finds (finding that 48.1 percent of
females and 23.6 percent of males in Fraternity and Sorority Life (FSL)
have experienced non-consensual sexual contact, compared with 33.1
percent of females and 7.9 percent of males not in FSL).
\29\ How Much Does Living Off-Campus Cost?, supra note 26.
\30\ Statista, Community colleges in the United States -
Statistics & Facts, https://www.statista.com/topics/3468/community-
colleges-in-the-united-states; National Center for Education
Statistics, Fast Facts, https://nces.ed.gov/fastfacts/
display.asp?id=372 (about 17.0 million students enrolled in
undergraduate programs in fall 2018).
\31\ David A. Tomar, Trade Schools on the Rise, THE BEST SCHOOLS
(last visited Jan. 20, 2019), https://thebestschools.org/magazine/
trade-schools-rise-ashes-college-degree (an estimated 16 million
students were enrolled in vocational schools in 2014).
By forcing schools to dismiss complaints of out-of-school sexual
harassment, the proposed rules would ``unduly tie the hands of school
leaders who believe every child deserves a safe and healthy learning
environment.'' \32\ It would also require schools to single out
complaints of sexual assault and other forms of harassment by treating
them differently from other types of student misconduct that occur off-
campus, perpetuating the pernicious notion that sexual assault is
somehow less significant than other types of misconduct and making
schools vulnerable to litigation by students claiming unfairness or
discrimination in their school's policies treating harassment based on
sex differently from other forms of misconduct.
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\32\ Letter from The School Superintendents Ass'n (AASA) to Sec'y
Elisabeth DeVos at 5 Jan. 22, 2019) [hereinafter AASA Letter], http://
aasa.org/uploadedFiles/AASA--Blog(1)/AASA Title IX Comments Final.pdf
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Question d. The clear and convincing standard requirement; and
Answer d. The Department's decision to allow schools to impose a
more burdensome standard in sexual harassment matters than in any other
investigations of student or employee misconduct appears to rely on the
stereotype and false assumption that those who report sexual assault
and other forms of sexual harassment (mostly women) are more likely to
lie than those who report physical assault, plagiarism, or the wide
range of other school disciplinary violations and employee misconduct.
When this unwarranted skepticism of sexual assault and other harassment
allegations, grounded in gender stereotypes, infects sexual misconduct
proceedings, even the preponderance standard ``could end up operating
as a clear-and-convincing or even a beyond-a-reasonable-doubt standard
in practice.'' \33\ Previous Department guidance recognized that, given
these pervasive stereotypes, the preponderance standard was required to
ensure that the playing field, at least on paper, was as even as
possible. The Department now ignores the reality of these harmful
stereotypes by imposing a standard of evidence that encourages, rather
than dispels, the stereotype that women and girls lie about sexual
assault and other harassment, a result that is contrary to Title IX.
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\33\ Michael C. Dorf, Further Questions About the Scope of the
Dep't of Education's Authority Under Title IX, DORF ON LAW (Dec. 3,
2018), https://dorfonlaw.org/2018/12/further-questions-about-scope-of-
dept.html#more.
The preponderance standard is used for nearly all civil rights
cases. Indeed it's a standard applied in nearly all civil cases,
including where the conduct at issue could also be the basis for a
criminal prosecution. \34\ The preponderance standard is also used for
people facing more severe deprivations than suspension, expulsion or
other school discipline, or termination of employment or other
workplace discipline, including in proceedings to determine paternity,
\35\ competency to stand trial, \36\ enhancement of prison sentences,
\37\ and civil commitment of defendants acquitted by the insanity
defense. \38\ The Supreme Court has only required something higher than
the preponderance standard in a narrow handful of civil cases ``to
protect particularly important individual interests,'' \39\ where
consequences far more severe than suspension, expulsion, or firing are
threatened, such as termination of parental rights, \40\ civil
commitment for mental illness, \41\ deportation, \42\ denaturalization,
\43\ and juvenile delinquency with the ``possibility of institutional
confinement.'' \44\ In all of these cases, incarceration or a permanent
loss of a profound liberty interest was a possible outcome--unlike in
school sexual harassment proceedings. Moreover, in all of these cases,
the government and its vast power and resources was in conflict with an
individual--in contrast to school harassment investigations involving
two students with roughly equal resources and equal stakes in their
education, two employees who are also similarly situated, or a student
and employee, where any power imbalance would tend to favor the
employee respondent rather than the student complainant. \45\
Preponderance is the only standard of proof that treats both sides
equally and is consistent with Title IX's requirement that grievance
procedures be ``equitable.'' \46\
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\34\ To take one famous example, O.J. Simpson was found
responsible for wrongful death in civil court under the preponderance
standard after he was found not guilty for murder in criminal court
under the beyond-a-reasonable-doubt standard. See B. Drummond Ayres,
Jr., Jury Decides Simpson Must Pay $25 Million in Punitive Award, N.Y.
TIMES (Feb. 11, 1997), https://www.nytimes.com/1997/02/11/us/jury-
decides-simpson-must-pay-25-million-in-punitive-award.html.
\35\ Rivera v. Minnich, 483 U.S. 574, 581 (1987).
\36\ Cooper v. Oklahoma, 517 U.S. 348, 368 (1996).
\37\ McMillan v. Pennsylvania, 477 U.S. 79, 91-92 (1986).
\38\ Jones v. United States, 463 U.S. 354, 368 (1983).
\39\ Addington v. Texas, 441 U.S. 418, 424 (1979) (civil
commitment).
\40\ Santosky v. Kramer, 455 U.S. 745, 758 (1982).
\41\ Addington, 441 U.S. at 432.
\42\ Woodby v. INS, 385 U.S. 276, 286 (1966).
\43\ Chaunt v. United States, 364 U.S. 350, 353 (1960);
Schneiderman v. United States, 320 U.S. 118, 125 (1943).
\44\ In re Winship, 397 U.S. 358, 367-68 (1970).
\45\ Despite overwhelming Supreme Court and other case law in
support of the preponderance standard, the Department cites just two
state court cases and one federal court district court case to argue
for the clear and convincing standard. 83 Fed. Reg. at 61477. The
Department claims that expulsion is similar to loss of a professional
license and that held that the clear and convincing standard is
required in cases where a person may lose their professional license
Id. However, even assuming expulsion is analogous to loss of a
professional license, which is certainly debatable as it is usually far
easier to enroll in a new school than to enter a new profession, this
is a weak argument, as there are numerous state and federal cases that
have held that the preponderance standard is the correct standard to
apply when a person is at risk of losing their professional license.
See, e.g., In re Barach, 540 F.3d 82, 85 (1st Cir. 2008); Granek v.
Texas State Bd. of Med. Examiners, 172 S.W. 3d 761, 777 (Tex. Ct. App.
2005). As an example, the Department cites to Nguyen v. Washington
State Dep't of Health, 144 Wash.2d 516 (Wash. 2001), cert. denied 535
U.S. 904 (2002) for the contention that courts ``often'' employ a clear
and convincing evidence standard to civil administrative proceedings.
In that case, the court required clear and convincing evidence in a
case where a physician's license was revoked after allegations of
sexual misconduct. But that case is an anomaly; a study commissioned by
the U.S. Department of Health and Human Services found that two-thirds
of the states use the preponderance of the evidence standard in
physician misconduct cases. See Randall R. Bovbjerg et al., State
Discipline of Physicians 14-15 (2006), https://aspe.hhs.gov/sites/
default/files/pdf/74616/stdiscp.pdf. See also Kidder, William,
(En)forcing a Foolish Consistency?: A Critique and Comparative Analysis
of the Trump administration's Proposed Standard of Evidence Regulation
for Campus Title IX Proceedings (January 27, 2019), available at http:/
/ssrn.com/abstract=3323982 (providing an in depth comparative analysis
of the many instances in which the preponderance standard is used
instead of the clear and convincing evidence standard).
\46\ The Department's bizarre claim that the preponderance
standard is the ``lowest possible standard of evidence'' (83 Fed. Reg.
at 61464) is simply wrong as a matter of law. Courts routinely apply
lower standard of proof in traffic stops (``reasonable suspicion'') and
conducting searches (``probable cause''). Terry v. Ohio, 392 U.S. 1
(1968) (traffic stops); U.S. Const. amend. IV (searches).
For this reason, Title IX experts and school leaders alike support
the preponderance standard, which is used to address harassment
complaints at over 80 percent of colleges. \47\ The National Center for
Higher Education Risk Management (NCHERM) Group, whose white paper Due
Process and the Sex Police was cited by the Department, \48\ has
promulgated materials that require schools to use the preponderance
standard, because ``[w]e believe higher education can acquit fairness
without higher standards of proof.'' \49\ And even the Department
admits it is ``reasonable'' for a school to use the preponderance
standard. \50\
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\47\ Heather M. Karjane, et al., Campus Sexual Assault: How
America's Institutions of Higher Education Respond 120 (Oct. 2002),
https://www.ncjrs.gov/pdffiles1/nij/grants/196676.pdf.
\48\ 83 Fed. Reg. at 61464 n.2.
\49\ The NCHERM Group, Due Process and the Sex Police 2, 17-18
(Apr. 2017), available at https://www.ncherm.org/wp-content/uploads/
2017/04/TNG-Whitepaper-Final-Electronic-Version.pdf.
\50\ 83 Fed. Reg. at 61477.
By permitting and sometimes mandating the clear and convincing
evidence standard in sexual harassment proceedings, the Department
treats sexual harassment differently from other types of school
disciplinary violations and employee misconduct, uniquely targeting and
disfavoring sexual harassment complainants. First, the Department
argues that school sexual harassment investigations are different from
civil cases, and therefore may appropriately require a more burdensome
standard of proof, because many school sexual harassment investigations
do not use full courtroom procedures, such as active participation by
lawyers, rules of evidence, and full discovery. \51\ However, the
Department does not exhibit this concern for the lack of full-blown
judicial proceedings to address other types of student or employee
misconduct, including other examples of student or employee misconduct
implicating the civil rights laws enforced by the Department. Schools
have not, as a general rule, imposed higher evidentiary standards in
other misconduct matters, nor have employers more generally in employee
misconduct matters, to compensate for the proceedings' failure to be
full-blown judicial trials, and the Department does not explain why
such a standard is appropriate in this context alone.
---------------------------------------------------------------------------
\51\ Id.
Moreover, although the proposed rules would require schools to use
the ``clear and convincing'' standard for sexual harassment
investigations if they use it for any other student or employee
misconduct investigations with the same maximum sanction, \52\ and
would require that it be used in student harassment investigations if
it is used in any employee harassment investigations, the proposed
rules would not prohibit schools from using the clear and convincing
standard in sexual harassment proceedings even if they use a lower
proof standard for all other student conduct violations. \53\ School
leaders agree that requiring different standards for sexual misconduct
as opposed to other misconduct is inequitable.
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\52\ Proposed Sec. 106.45(b)(4)(i).
\53\ See A Sharp Backward Turn, supra note 83 (``It is a one-way
ratchet.'').
Question e. The actual knowledge standard and requirements for
---------------------------------------------------------------------------
filing formal complaints.
Answer e. Under the proposed rules, schools would not be required
to address any sexual harassment and assault unless one of a small
subset of school employees had ``actual knowledge'' of it. \54\ The
proposed rules also unjustifiably limit the set of school employees for
whom actual notice of sexual assault or other forms of harassment
triggers the school's Title IX duties. For example, under the proposed
rules, if a college or graduate student told their professor,
residential advisor, or teaching assistant that they had been raped by
another student or by a professor or other university employee, the
university would have no obligation to help the student.
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\54\ Proposed Sec. Sec. 106.30, 106.44.
Under the Department's proposed rules, even when students find the
courage to talk to the adult school employees they trust, schools would
frequently have no obligation to respond. For example, if the proposed
rules had been in place, colleges like Michigan State and Penn State
would have had no Title IX responsibility to stop Larry Nassar and
Jerry Sandusky--even though their victims reported their experiences to
at least 14 school employees over a 20-year period--including athletic
trainers, coaches, counselors, and therapists \55\--because those
employees are not considered to be school officials who have the
``authority to institute corrective measures.'' \56\ These proposed
provisions would absolve some of the worst Title IX offenders of legal
liability.
---------------------------------------------------------------------------
\55\ Julie Mack & Emily Lawler, MSU doctor's alleged victims
talked for 20 years. Was anyone listening?, MLIVE (Feb. 8, 2017),
https://www.mlive.com/news/index.ssf/page/msu--doctor--alleged--
sexual--assault.html.
\56\ Proposed Sec. 106.30.
The ``formal complaint'' requirement would also compel complainants
to engage in arcane procedural maneuvers in order to enforce a
recipient's anti-harassment standards. As a practical matter, moreover,
many victims, having already suffered through significant trauma during
a first proceeding, might well be reluctant to go through everything a
second time.
senator rosen
Question 1. As others have expressed today, I am incredibly
concerned with the proposed rollbacks of Title IX protections for
sexual assault survivors and how they would jeopardize student safety,
particularly students in my home state of Nevada. Among other harmful
provisions, the Department of Education's proposed rule only allows
schools to investigate a report of sexual harassment if it occurred
``within a school's own program or activity.'' At University of Nevada
Las Vegas (UNLV) - a public university with the highest student
enrollment rate in my state - only 6 percent of full-time students
reside on campus. UNLV is a commuter campus, so the majority of
students experience sexual violence, harassment, or misconduct
involving fellow students outside the campus or university-sponsored
program or activity. Likewise, in a 2016 survey of sexual conduct and
campus safety, 79 percent of University of Nevada Reno students
reported that ``unwanted sexual conduct affecting students occurs off
campus''. And this doesn't even account for the many Nevadans who
attend other commuter campuses like Truckee Meadows Community College,
Nevada State College, and College of Southern Nevada. Changing the
rules so schools only have to respond if the incident occurred on
campus would have a direct negative impact on survivors of sexual
assault and harassment in Nevada. Just because assault or harassment
took place off campus, students may be forced to see their harasser on
campus every day, and their education can be impacted - potentially
resulting in them dropping out of school altogether.
Question (a). Given that Title IX itself does not state that
discriminatory conduct must occur during a school activity for there to
be a discriminatory environment, how is this proposed change
appropriate?
Answer (a). The proposed rules conflict with Title IX's statutory
language, which does not prohibit discrimination depending on where the
underlying conduct occurred but instead prohibits discrimination that
``exclude[s a person] from participation in, . . . denie[s a person]
the benefits of, or . . . subject[s a person] to discrimination under
any education program or activity . . . .'' \57\ For almost two
decades, the Department's guidance documents have agreed that schools
are responsible for addressing sexual harassment if it is
``sufficiently serious to deny or limit a student's ability to
participate in or benefit from the education program,'' \58\ regardless
of where it occurs. \59\ No student who experiences out-of-school
harassment from a school employee or another student that impacts their
education should be forced to wait until they are sexually harassed
again on school grounds or during a school activity in order to receive
help from their school. Nor should they be required to sit in class
next to their assailant with no recourse. Thus, the proposed change
requiring that the harassment occur within an education program or
activity in order for a school to conduct an investigation, without
regard to how the complainant's education is impacted by the
harassment, is in conflict with Title IX's statutory language.
---------------------------------------------------------------------------
\57\ 20 U.S.C. Sec. 1681(a).
\58\ 2001 Guidance, supra note 23.
\59\ See supra note 24.
Question (b). Nevada institutions like UNLV have pledged to
continue to offer support and resources to survivors of off-campus
assaults, even if this rule goes into effect. Unfortunately, not all
schools will do the same. How will these changes affect the rate of
---------------------------------------------------------------------------
student reporting of sexual misconduct?
Answer (b). The Department's proposed rules would also require
schools to dismiss all complaints of off-campus or online sexual
harassment that happen outside of a school-sponsored program--even if
the student is forced to see their harasser at school every day and the
harassment directly impacts their education as a result. The proposed
rules conflict with Title IX's statutory language, which does not
depend on where the underlying conduct occurred but instead prohibits
discrimination that ``exclude[s a person] from participation in, . . .
denie[s a person] the benefits of, or . . . subject[s a person] to
discrimination under any education program or activity . . . .'' \60\
For almost two decades, the Department's guidance documents have agreed
that schools are responsible for addressing sexual harassment if it is
``sufficiently serious to deny or limit a student's ability to
participate in or benefit from the education program,'' \61\ regardless
of where it occurs. \62\ No student who experiences out-of-school
harassment should be forced to wait until they are sexually harassed
again on school grounds or during a school activity in order to receive
help from their school. Nor should they be required to sit in class
next to their assailant with no recourse.
---------------------------------------------------------------------------
\60\ 20 U.S.C. Sec. 1681(a).
\61\ 2001 Guidance, supra note 24.
\62\ Supra note 25.
Sexual harassment and assault also occur both on-campus and in off-
campus spaces closely associated with school. Nearly nine in ten
college students live off campus. \63\ According to a 2014 U.S.
Department of Justice report, 95 percent of sexual assaults of female
students ages 18-24 occur outside of school. \64\ Forty-one percent of
college sexual assaults involve off-campus parties \65\ and many
fraternity and sorority houses are very much a part of the school
community but physically located off campus. Students are also far more
likely to experience sexual assault if they are in a sorority (nearly
one and a half times more likely) or fraternity (nearly three times
more likely). \66\ But under the proposed rules, if a college or
graduate student is sexually assaulted by a classmate in off-campus
housing, their university would be required to dismiss their
complaint--even though almost nine in ten college students live off
campus. \67\ The proposed rules would also pose particular risks to
students at community colleges and vocational schools. Approximately
5.8 million students attend community college (out of 17.0 million
total undergraduate students), \68\ and 16 million students attend
vocational school. \69\ But because very few of these students live on
campus, the harassment they experience by faculty or other students is
especially likely to occur outside of school, and therefore outside of
the protection of the proposed Title IX rules. Finally, proposed Sec.
106.8(d) would create a unique harm to the 10 percent of U.S.
undergraduate students who participate in study abroad programs. If any
of these students report experiencing sexual harassment during their
time abroad, including within their study abroad program, their schools
would be required to dismiss their complaints--even if they are forced
to see their harasser in the study abroad program every day, and even
if they continue to be put into close contact with their harasser when
they return to their home campus.
---------------------------------------------------------------------------
\63\ How Much Does Living Off-Campus Cost?, supra note 26.
\64\ Supra note 27.
\65\ Supra note 28
\66\ Supra note 29
\67\ How Much Does Living Off-Campus Cost?, supra note 26.
\68\ Supra note 31.
\69\ Supra note 32.
By forcing schools to dismiss complaints of out-of-school sexual
harassment, the proposed rules would ``unduly tie the hands of school
leaders who believe every child deserves a safe and healthy learning
environment.'' \70\ It would also require schools to single out
complaints of sexual assault and other forms of harassment by treating
them differently from other types of student misconduct that occur off-
campus, perpetuating the pernicious notion that sexual assault is
somehow less significant than other types of misconduct and making
schools vulnerable to litigation by students claiming unfairness or
discrimination in their school's policies treating harassment based on
sex differently from other forms of misconduct.
---------------------------------------------------------------------------
\70\ AASA Letter, supra note 33.
---------------------------------------------------------------------------
senator sanders
Question 1. As you know, Secretary DeVos rescinded guidance issued
by the Obama administration that helped schools understand their
responsibility to address campus sexual assault and ensure student
safety and rights. Colleges and universities are focused on policies
and procedures, the Department of Education ensures schools comply with
federal law and it seems students, faculty and visitors to campus are
an afterthought. Based on your experience working in the field of
criminal law, how should the views, perspectives and experiences of
students and various stakeholders taken into account to ensure that
everyone feels safer on campus?
Answer 1. It is critical that the views of students and other
stakeholders are taken into account in any law, regulation, or policy
that addresses campus sexual assault. As a longtime civil rights and
gender justice lawyer, it's a lesson that I have learned again and
again. And, unfortunately, when making changes to Title IX guidance and
most recently, proposing changes to its Title IX rules, the Department
of Education did not do this. In fact, the Department's proposed rules
are so far out of step with the general public's views on sexual
harassment, they are decidedly undemocratic. The American public
overwhelmingly agrees that strong Title IX protections are necessary to
ensure student survivors' equal access to educational opportunities.
Recently, we commissioned public opinion research to understand
voters' policy preferences and attitudes towards issues
disproportionately affecting women, and the vast majority of those
polled (88 percent) considered ``preventing sexual harassment and
assault'' an important issue for Congress to work on, and preventing
sexual harassment and assault was a top priority among votes of nearly
every background, including across gender, party, and racial lines.
\71\ Moreover, public comments submitted to the Department of Education
during its deregulation comment period in September 2017, indicates
that the majority of the American people support strong Title IX
protections, including those in the 2011 Guidance and 2014 Guidance
that the Department rescinded in September 2017. Last fall, when the
Department asked the public for input on deregulation (i.e., which
rules the Department should repeal, replace, or modify), \72\ over
12,000 people submitted comments about Title IX, with 99 percent of
them supporting Title IX and 96 percent explicitly urged the Department
to preserve its 2011 Guidance. \73\ They were joined by more than
150,000 other people who signed petitions and statements in support of
the Department's 2011 Guidance and 2014 Guidance. \74\ However, just
one day after the public comment period closed, the Department
rescinded both the 2011 Guidance and the 2014 Guidance and issued the
2017 Guidance, when it could not possibly have finished reading and
considering all of the comments it had received. \75\ The rescission
was an anti-democratic move contrary to the APA, which was enacted to
hold non-elected agency officials like Secretary DeVos accountable to
constituents by requiring agencies to consider public comments during
the rulemaking process.
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\71\ Perry Undem and GBA Strategies, Voters' Priorities for the
New Congress (Mar. 14, 2019).
\72\ U.S. Dep't of Educ., Evaluation of Existing Regulations, 82
Fed. Reg. at 28431 (June 22, 2017) https://www.regulations.gov/
contentStreamer?documentId=ED-2017-OS-0074-0001&contentType=pdf.
\73\ Tiffany Buffkin et al., Widely Welcomed and Supported by the
Public: A Report on the Title IX-Related Comments in the U.S.
Department of Education's Executive Order 13777 Comment Call, CAL. L.
REV. ONLINE 2 (Sept. 25, 2018) [last revised Dec. 31, 2018), available
at https://ssrn.com/abstract=3255205.
\74\ Id. at 27-28 (48,903 people signed petitions and statements
supporting Title IX and the 2011 Guidance); Caitlin Emma, Exclusive:
Education reform groups team up to make bigger mark, POLITICO (Sept. 6,
2017), https://www.politico.com/tipsheets/morning-education/2017/09/06/
exclusive-education-reform-groups-team-up-to-make-bigger-mark-222139
(more than 105,000 petitions delivered to Department of Education
supporting 2011 and 2014 Title IX Guidances).
\75\ Dep't of Educ., Office for Civil Rights, Dear Colleague
Letter rescinding 2011 Guidance and 2014 Guidance (Sept.22, 2017),
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-
201709.pdf.
The Department's proposed rules ignore the cultural milestones that
have demonstrated the public's interest in eliminating sexual
harassment, including sexual assault, from our schools and workplaces.
In the past sixteen months, the #MeToo hashtag has used more than 19
million times on Twitter, \76\ the Time's Up Legal Defense Fund raised
more than $24 million to combat sexual harassment, \77\ and state
legislators passed more than 100 bills strengthening protections
against sexual harassment. \78\ In fall 2018, millions of people
gathered across the country, online, and on the steps of the Supreme
Court in solidarity with Dr. Christine Blasey Ford, Professor Anita
Hill, and other survivors who have courageously come forward yet have
been denied justice. In the face of this overwhelming support for
survivors of sexual violence and those confronting other forms of
sexual harassment, the Department's proposed Title IX rules contravene
the basic notion that the right to be free from sexual harassment and
violence is a human right and the right to not have one's education
harmed by sexual harassment is a civil right.
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\76\ Monica Anderson & Skye Toor, How social media users have
discussed sexual harassment since #MeToo went viral, PEW RESEARCH CTR.
(Oct. 11, 2018)http://www.pewresearch.org/fact-tank/2018/10/11/how-
social-media-users-have-discussed-sexual-harassment-since-metoo-went-
viral.
\77\ Natalie Robehmed, With $20 Million Raised, Time's Up Seeks
'Equity And Safety' In The Workplace, FORBES (Feb. 6, 2018), https://
www.forbes.com/sites/natalierobehmed/2018/02/06/with-20-million-raised-
times-up-seeks-equity-and-safety-in-the-workplace/#f1425ca103c5.
\78\ Andrea Johnson, Maya Raghu & Ramya Sekhran, #MeToo One Year
Later: Progress In Catalyzing Change to End Workplace Harassment, NAT'L
WOMEN'S LAW CTR. 1 (Oct. 19, 2018), https://nwlc.org/resources/metoo-
one-year-later-progress-in-catalyzing-change-to-end-workplace-
harassment.
More than 800 law professors, scholars, and experts in relevant
fields have signed letters opposing the proposed regulations. \79\
Similarly, survivors at Michigan State University, University of
Southern California, and Ohio State University who were sexually abused
by Larry Nassar, George Tyndall, and Richard Strauss expressed
opposition to the Department's proposed rules. \80\ In a letter to
Secretary DeVos and Assistant Secretary Marcus, more than 80 of these
survivors shared their concern that ``[t]he proposed changes will make
schools even less safe for survivors and enable more perpetrators to
commit sexual assault in schools without consequence.'' \81\ They
agreed that if these rules are finalized, ``fewer survivors will report
their assaults and harassment, schools will be more dangerous, and more
survivors will be denied their legal right to equal access to
educational opportunities after experiencing sexual assault.'' \82\
More than 900 mental health professionals submitted a comment
condemning the proposed rules, claiming that the rule would ``cause
increased harm to students who report sexual harassment, including
sexual assault, . . . [and] discourage students who have been
victimized from coming forward,'' and that they would also ``reinforce
the shaming and silencing of victims, which has long prevailed in our
society, and [] worsen the problem of sex discrimination in
education.'' \83\
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\79\ Letter from 201 Law Professors to the Sec'y Elisabeth DeVos
and Ass't Sec'y Kenneth L. Marcus (Nov. 8, 2018), http://goo.gl/72Aj1b;
Letter from 1,185 members of Nat'l Women's Studies Ass'n to Sec'y
Elisabeth DeVos and Ass't Sec'y Kenneth L. Marcus, (Nov. 11, 2018),
https://sites.google.com/view/nwsa2018openletter/home.
\80\ Letter from 89 Survivors of Larry Nassar, George Tyndall, and
Richard Strauss at Michigan State University, Ohio State University,
and University of Southern California to Sec'y Elisabeth DeVos and
Ass't Sec'y Kenneth Marcus (Nov. 1, 2018), at 2, https://
www.documentcloud.org/documents/5026380-November-1-Survivor-Letter-to-
ED.html; Letter from Liberty University to Sec'y Elisabeth DeVos (Jan.
24, 2019), http://www.liberty.edu/media/1617/2019/jan/Title-IX-Public-
Comments.pdf; Letter from Georgetown University to Sec'y Elizabeth
DeVos as 7 (Jan. 30. 2019), https://georgetown.app.box.com/s/
fwk978e3oai8i5hpq0wqa70cq9iml2re
\81\ Id. at 1
\82\ Id. at 2.
\83\ Mental Health Professionals Letter, supra note 16.
Finally, educational institutions have come out strongly in
opposition to most the changes proposed to the Title IX rules,
particularly around the changed definition of sexual harassment,
requirement for live hearings with cross-examination, mandated
dismissals of most off-campus and online sexual harassment, and
heightened notice requirements. \84\
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\84\ See AAU Letter, supra note 15; AICUM Letter, supra note 14
(``[s]uch financial costs and administrative burdens may be
overwhelming''); Pepper Hamilton Comment, supra note 10.
Question 2. The Clery Act, amended by the Violence Against Women
Act (VAWA), requires colleges and universities across the United States
to disclose information about crime on and around their campuses. The
law applies to most institutions of higher education because it compels
compliance in order to participate in federal student financial aid
programs. Again, based on your experience working in the field of
criminal law, are schools fully complying with the Clery Act? Is the
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Department of Education properly enforcing the Clery Act and VAWA?
Answer 2. While the Clery Act and Title IX both apply to
institutions of higher education, a number of the Department's proposed
Title IX rules are inconsistent with the Clery Act, which also
addresses the obligation of institutions of higher education to respond
to sexual assault and other behaviors that may constitute sexual
harassment, including dating violence, domestic violence, and stalking.
Although I am not a criminal law attorney, I have practiced deeply in
the area of Title IX and also served on the Department of Education's
negotiated rulemaking committee for the Clery Act regulations. First,
the proposed rules prohibiting schools from investigating off-campus
and online sexual harassment conflict with Clery's notice and reporting
requirements. The Clery Act requires institutions of higher education
to notify all students who report sexual assault, stalking, dating
violence, and domestic violence of their rights, regardless of
``whether the offense occurred on or off campus.'' \85\ The Clery Act
also requires institutions of higher education to report all sexual
assault, stalking, dating violence, and domestic violence that occur on
``Clery geography,'' which includes all property controlled by a
school-recognized student organization (such as an off-campus
fraternity); nearby ``public property''; and ``areas within the patrol
jurisdiction of the campus police or the campus security department.''
\86\ The proposed rules would undermine Clery's mandate and create a
perverse system in which schools would be required to report instances
of sexual assault that occur off-campus to the Department under Clery,
yet would also be required by the Department to dismiss these
complaints under Title IX instead of investigating them.
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\85\ 20 U.S.C. Sec. 1092(f)(8)(C).
\86\ 20 U.S.C. Sec. 1092(f)(6)(iii); 20 U.S.C Sec.
1092(f)(6)(iv)); 34 C.F.R. Sec. 668.46(a)).
Second, the Department's definition of ``supportive measures'' is
inconsistent with Clery, which requires institutions of higher
education to provide ``accommodations'' and ``protective measures'' if
``reasonably available'' to students who report sexual assault, dating
violence, domestic violence, and stalking. \87\ The Clery Act does not
prohibit accommodations or protective measures that are ``punitive,''
``disciplinary,'' or ``unreasonably burden[] the other party.'' Third,
the proposed rules' unequal appeal rights conflict with the preamble to
the Department's Clery rules stating that institutions of higher
education are required to provide ``an equal right to appeal if appeals
are available,'' which would necessarily include the right to appeal a
sanction. \88\
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\87\ 20 U.S.C. Sec. 1092(f)(8)(B)(vii); 34 C.F.R. Sec.
668.46(b)(11)(v).
\88\ U.S. Dep't of Educ.; Violence Against Women Act; Final Rule,
79 Fed. Reg. at 62752, 62778 (Oct. 20, 2014) (codified at 36 C.F.R. Pt.
668), https://www.gpo.gov/fdsys/pkg/FR-2014-10-20/pdf/2014-24284.pdf.
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Finally, Clery requires that investigations of sexual assault and
other sexual harassment be ``prompt, fair, and impartial.'' \89\ But
the proposed rules' indefinite timeframe for investigations conflicts
with Clery's mandate that investigations be prompt. And the many
proposed rules discussed above that tilt investigation procedures in
favor of the respondent are anything but fair and impartial. Although
the Department acknowledges that Title IX and the Clery Act's
``jurisdictional schemes . . . may overlap in certain situations,''
\90\ it fails to explain how institutions of higher education should
resolve the conflicts between two different sets of rules when
addressing sexual harassment. These different sets of rules would
likely create widespread confusion for schools.
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\89\ 20 U.S.C. Sec. 1092(f)(8)(b)(iv)(I)(aa).
\90\ 83 Fed. Reg. at 61468.
Regarding compliance with the Clery Act, schools routinely fail to
live up to the Clery requirements that they properly compile and
publish statistics for specific Clery crimes that occur within Clery
geography, publish and disseminate annual security reports, meet crime
awareness requirements, have adequate policy statements, and maintain
an accurate and complete daily crime log. \91\ And even with these
compliance challenges, it has still had an overall positive impact on
schools. \92\ For example, campuses have been giving more timely
warnings of crimes committed on campus, including through mass
notification systems, to ensure the safety of the campus community, and
more resources have been going towards campus public safety, including
addressing sexual violence on campuses. \93\ And the February 2019 \94\
report by the Department of Education detailing how Michigan State
University violated the Clery Act for years, including the many
failures to investigate abuses by athletic doctor, Larry Nassar and a
million dollar fine against the University of Montana in October 2018
for Clery Act violations are two important examples of the potential of
Clery enforcement. \95\ Unfortunately there are reports that the Trump
administration also has taken steps to undermine Clery enforcement,
providing form letter responses to Clery complaints with few details on
what the school did or how the Department would bring them into
compliance. \96\ I encourage the Committee to continue to examine the
Department's Clery enforcement.
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\91\ Clery Center, National Campus Safety Awareness Month 2017,
Department of Education Clery Act Program Reviews: Common Themes,
available at http://ncsam.clerycenter.org/wp-content/uploads/2016/08/
DE-Program-Reviews-Common-Themes.pdf.
\92\ S. Daniel Carter, Clery Act Has Prompted Positive Change in
Campus Public Safety, CAMPUS SAFETY MAGAZINE (Sept. 6, 2017), available
at https://www.campussafetymagazine.com/university/clery-act-has-
prompted-positive-changes-in-campus-public-safety/.
\93\ Id.
\94\ James Paterson, Report: Michigan State violated Clery Act
over Nassar, other crime reporting, EDUCATION DIVE (Feb. 4, 2019),
available at https://www.educationdive.com/news/report-michigan-state-
violated-clery-act-over-nassar-other-crime-reportin/547486/.
\95\ James Paterson, University of Montana assessed $1M Clery Act
fine, EDUCATION DIVE (Oct. 4, 2018), available at https://
www.educationdive.com/news/university-of-montana-assessed-1m-clery-act-
fine/538861/.
\96\ Benjamin Wermund, A new tack on Clery complaints for the
Trump administration? POLITICO MORNING EDITION (Sept. 15, 2017),
available at https://www.politico.com/tipsheets/morning-education/2017/
09/15/a-new-tack-on-clery-complaints-for-the-trump-administration-
222304.
Question 3. Colleges and universities seem to be struggling with
the repeal of the Obama Title IX rules since they provided much needed
guidance for institutions experiencing rising cases of sexual assault
and harassment. While Secretary DeVos has proposed new guidelines, they
are not in effect and have drawn criticism for favoring the rights of
the accused over those of the survivor and for not actually preventing
or addressing campus sexual assault. In the meantime, how can colleges
and universities strengthen their campus disciplinary process to ensure
that all students are safer on and near campus, especially if students
feel discouraged from coming forward about sexual assaults and other
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acts of violence?
Answer 3. Since the Clery Act and Title IX already require that
schools adopt and enforce procedures to address sexual assault that are
prompt, equitable, and impartial, reauthorization of the Higher
Education Act should support and reaffirm the principles and
requirements of both Clery and Title IX, including ensuring that
schools address sexual harassment before it causes greater harm to a
student's education and create equitable processes that preserve and
restore access to education for those who experience sexual harassment,
including survivors of sexual violence.
As described in further detail in my written testimony and to
responses to questions above, here are steps that schools should take
to preserve and restore access to education for students who are sexual
assaulted:
1. Schools must take effective and immediate action when
responding to sexual assault and other form of harassment that
school employees know about or reasonably should know about.
2. Complainants must be afforded non-punitive interim measures
to preserve and restore access to educational programs.
3. Investigations must be equitable and not create barriers to
participation.
4. Schools should not use live cross-examination as it would
deter reporting of campus sexual assault and is unnecessary for
reliable school discipline determinations.
5. Campuses must now allow for mediation for resolving
complaints of sexual assault.
6. Campuses must not consider irrelevant or prejudicial
evidence in investigations.
7. Campuses must provide remedies to preserve or restore access
to education.
8. Campuses must have equitable appeal rights.
9. Campuses must prohibit retaliation against parties and
witnesses.
Question 4. What changes to Secretary DeVos' proposed Title IX
guidance would you recommend to ensure that the administration does not
create a campus sexual assault disciplinary process that favors
wealthier students and their families who can afford attorneys and
consultants to guide them through the labyrinth of filing a formal
complaint with the ``appropriate person,'' notification requirements,
live cross examinations, and extensive knowledge of criminal procedure?
Answer 4. We would recommend that the Department of Education not
proceed with the proposed rules. Currently, the Department's 2001
Guidance, which went through public notice-and-comment and has been
enforced in both Democratic and Republican administrations, \97\ has
been relied on by educational institutions to understand and fulfill
their Title IX obligations for many years. This guidance rightly
charges schools with responding to harassment before it escalates to a
point that students suffer severe harm and it does not pose the same
issues as in the current proposed Title IX rules that would create
severe inequities between students based on wealth and access to
resources, like counsel, to guide them through the grievance process.
The 2001 Guidance requires schools to address student-on-student
harassment if any employee ``knew, or in the exercise of reasonable
care should have known'' about the harassment. In the context of
employee-on-student harassment, the 2001 Guidance requires schools to
address harassment ``whether or not the [school] has `notice' of the
harassment.'' \98\ Under the 2001 Guidance, the Department would
consider schools that failed to ``take immediate and effective
corrective action'' to be in violation of Title IX. \99\ For years,
these standards have appropriately guided colleges in understanding
their obligations around responding to campus sexual assault. However,
under the proposed rules, students would be required to file a formal
complaint to initiate an investigation by their school, and students
who are unable to afford an attorney to assist them with filing a
formal complaint that meets the requirements in the proposed rules
would be at a disadvantage.
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\97\ These standards have been reaffirmed time and time again, in
2006 by the Bush Administration, in 2010, 2011, and 2014 in guidance
documents issued by the Obama administration, and even in the 2017
guidance document issued by the current Administration. U.S. Dep't of
Educ. Office for Civil Rights, Dear Colleague Letter: Sexual Harassment
(Jan. 25, 2006) [hereinafter 2006 Guidance], https://www2.ed.gov/about/
offices/list/ocr/letters/sexhar-2006.html; 2010 Guidance, supra note
24; U.S. Dep't of Educ. Office of Civil Rights, Dear Colleague Letter:
Sexual Violence at 4, 6, 9, &16 (Apr. 4, 2011) [hereinafter 2011
Guidance], https://ww2ed.gov/about/offices/list/ocr/letters/colleague-
201104.pdf; U.S. Dep't of Educ. Office for Civil Rights, Questions and
Answers on Title IX and Sexual Violence 1-2 (Apr. 29, 2014)
[hereinafter 2014 Guidance], https://www2.ed.gov/about/offices/list/
ocr/docs/qa-201404-title-ix.pdf; 2017 Guidance, supra note 24.
\98\ Id.
\99\ Id.
Moreover, as also indicated by your question, the live cross-
examination requirement would lead to sharp inequities, due especially
to the ``huge asymmetry'' that would arise when respondents are able to
afford attorneys and complainants cannot. \100\ According to the
president of Association of Title IX Administrators (ATIXA), the live
cross-examination provision alone--``even with accommodations like
questioning from a separate room--would lead to a 50 percent drop in
the reporting of misconduct.'' \101\ These attorneys are often defense
counsel ready to grill a survivor about the traumatic details of an
assault.
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\100\ Andrew Kreighbaum, New Uncertainty on Title IX, INSIDE
HIGHER EDUCATION (Nov. 20, 2018), https://www.insidehighered.com/news/
2018/11/20/title-ix-rules-cross-examination-would-make-colleges-act-
courts-lawyers-say.
\101\ Id.
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Response by Jeannie Suk Gersen to Questions of Senator Alexander,
Senator Warren, Senator Rosen, and Senator Sanders
senator alexander
Question 1. Are there rules or guidelines institutions should
adopt to govern the live questioning of witnesses or parties in campus
disciplinary proceedings? If so, do you have specific suggestions on
what rules or guidelines institutions should adopt?
Answer 1. Live questioning of witnesses and parties at a hearing is
essential to a fair process of adjudication for campus discipline. But
schools must guard against enabling hurtful personal confrontation in
that context, especially where students are being questioned and may
suffer harm to their access to education. Schools are usually not
equipped with expertise and resources to properly implement a
beneficial courtroom-style cross-examination wherein trained judges and
rules of evidence can keep proceedings under control. Schools should
therefore not be required to implement cross-examination in their
hearings, but they should be required to allow live questioning.
Schools should seek a balance in which live questioning can occur
without the harms that may result from unchecked grilling of students
by opposing parties. Schools should adopt rules that provide for a
party to submit questions for witnesses and for the other party to the
presiding adjudicator. This avoids direct personal confrontation, and
avoids allowing lawyers for either party to engage in unfiltered
questioning of the opposing party. The rules should provide that the
adjudicator must proceed to ask all the questions submitted by each
party, unless the questions are irrelevant, excluded by a rule of
evidence clearly adopted in advance, harassing, or duplicative. The
adjudicator should be required state on the record a specific, clear,
rule-based reason for refusing to ask any of the questions submitted.
It is crucial that a general trauma-based concept, such as a need to
``avoid retraumatizing'' a party, not be an allowable ground for the
adjudicator's refusal to ask a submitted question, because that concept
makes a blanket assumption that the party is traumatized, which is
circular in a proceeding that sets out to determine whether someone has
been harmed. It is effectively assuming the respondent's responsibility
for harm and therefore inconsistent with a presumption of innocence.
The rules should also instruct the adjudicator that a party's
refusal to answer questions should not automatically result in having
the party's statements disregarded. Parties may have good reasons for
not answering certain questions, and respondents in particular may be
instructed by counsel not to answer questions in order to preserve
criminal trial rights. Adjudicators should, however, be allowed to draw
a negative inference from refusals to answer questions when that
inference appears equitable under the circumstances.
It is also extremely important that in a live questioning
procedure, the parties be allowed to bring an advisor who is ``on their
side.'' If a party does not have an advisor, the school should provide
one.
Schools should provide the option of videoconferencing as an
available alternative to having the parties in the same room for the
live questioning.
If a school permits traditional cross-examination, it should not
allow parties to question each other personally. The questioning should
be done by attorneys with knowledge of rules of evidence that limit
cross-examination to questions of relevance, under the supervision of a
presiding adjudicator who has expertise to act as would a judge
enforcing those rules in court.
Question 2. Do you have any specific suggestions on what guidelines
or parameters, if any, should be used when informal resolution methods,
such as mediation or restorative justice, are selected as a way to
resolve sexual misconduct allegations, including sexual assaults?
Answer 2. Schools should provide mediation or restorative justice
as possible alternatives to adjudication of a complaint, in cases where
both parties consent and indicate that it is their preferred route.
Parties should not be pressured to opt out of formal adjudication.
Parties should be accompanied by their advisors to any meetings with
the other party, and videoconferencing should be made available as an
alternative to face to face meetings.
For mediation, the school should provide a trained neutral mediator
to facilitate the process toward a mutually agreed-upon resolution of
the matter.
For restorative justice, the school should make clear that the
respondent's acceptance of responsibility is a precondition of entering
a restorative justice process, and that the goal of the process is to
arrive at a consensus on how the respondent can repair the harm. Each
of the parties should be permitted to select several members of the
community to attend the restorative justice session, which should be
guided by a trained facilitator.
The school should provide guidelines indicating a range of
acceptable resolutions that can arise out of mediation or restorative
justice, such as acknowledgment, apology, changing dormitories and
classes, and voluntary leave-taking. If the parties are unable to reach
a resolution that is mutually satisfactory, then the complainant should
still be permitted to pursue the complaint under the school's formal
adjudication process. But the parties should not be allowed to use
statements made as part of the mediation or restorative justice process
as evidence in a later formal adjudication of the complaint.
Regardless of the availability of mediation or restorative justice,
only the school should be empowered to impose discipline, such as
probation, suspension, expulsion, or transcript marks. The school
should also retain discretion to reject resolution via informal methods
in a rare case where it determines that it is necessary to pursue a
formal complaint to vindicate the school's interest in protecting the
community from danger.
Question 3. Should institutions be able to implement a statute of
limitations to report an allegation of sexual misconduct, including
sexual assault?
Answer 3. Yes. Schools should adopt a reasonable statute of
limitations for reporting sexual misconduct including sexual assault.
The fairness concerns that inform civil and criminal statutes of
limitations strongly apply to school-based adjudication processes. It
is important to the legitimacy and fairness of school-based
adjudications of complaints that they be based on memories and evidence
that have not deteriorated with time. It is also deeply unfair and
harmful to the parties undertake any adjudication in which evidence in
support of complaints or defenses that may have once been available is
no longer available because of a long passage of time.
senator warren
Question 1. According to data from the U.S. Department of Justice,
only one in five women who are sexually assaulted on campus will
actually report the attack to the police. \1\ What should Congress do
to encourage students to report incidences of harassment and assault?
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\1\ U.S. Department of Justice, Office of Justice Programs, Bureau
of Justice Statistics. (2014). Rape and Sexual Victimization Among
College-Aged Females, 1995-2013. https://www.bjs.gov/content/pub/pdf/
rsavcaf9513.pdf.
Answer 1. One of the many important reasons for the low rate of
reporting to police of sexual assault on campus may be that definitions
of ``sexual assault'' on campus include much conduct that may not be
criminal. A divergence between criminal standards and campus standards
of conduct is of course to be expected, because unlike criminal law,
the purpose of campus sexual misconduct discipline is to address the
discriminatory impact of the behavior on access to education. But
campus definitions may also deter reporting because they are unclear or
too expansive for students to take seriously. To help bring rates of
campus reporting of sexual assault closer to the actual incidence of
conduct that has a concrete discriminatory impact on education and is
worthy of discipline, Congress should help give better focus to
definitions of sexual assault for campus discipline purposes. Providing
a clear, non-ambiguous, and appropriate definition of sexual assault
that is not overinclusive or underinclusive would do a tremendous
amount to encourage reporting in which we can feel more confident. To
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that end, I would propose the following definition of sexual assault:
Sexual assault is the penetration or touching of another's
genitalia, buttocks, anus, breasts, or mouth without consent.
A person acts without consent when, in the context of all the
circumstances, the person should reasonably be aware of a substantial
risk that the other person is not voluntary and willingly engaging in
the conduct at the time of the conduct.
Question 2. From your perspective, how would each of the following
aspects of the Department of Education's proposed rule,
``Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance,'' affect a
complainant's likelihood of reporting harassment or assault?
Question (a). The live cross examination requirement;
Answer 2. I believe the concern about the potential effect of live
cross-examination on reporting is overblown and misguided. After all,
cross-examination would be available to both parties, and each party
has much to gain in being able to subjecting the other party to cross-
examination. In the criminal and civil justice systems, complainants
and plaintiffs know that if they report, they may be subject to cross-
examination if the case goes to trial. The fact that this knowledge and
the desire to avoid being cross-examined may deter reporting in the
legal system does not and should not lead us to deny the value of
cross-examination in court proceedings.
Answer (a). However, as I indicated in my answer to Senator
Alexander's Question # 1, above, I do not believe traditional cross
examination of parties is essential to fairness in a school-based
proceeding, which is not a court. That is not because of the effect on
reporting, but rather because the potential for parties and their
advisors to engage in hurtful confrontation is great where, unlike in a
court, there are no experienced judges and lawyers to enforce and
comport with rules of evidence and to control such behavior. A live
hearing with the opportunity for parties to ask questions of witnesses
and parties is essential to fairness and can be accomplished without
traditional cross-examination. Perhaps that, too, would depress
reporting, but so too may other requirements of due process or even the
very prospect of an investigation or adjudication at all. The effect on
reporting cannot be a proper determinant of the rules we adopt for the
sake of adjudication that is fair to both parties.
Question (b). The proposed definition of harassment, which would
narrow the scope of what incidences of sexual misconduct schools are
required to respond to;
Answer (b). The Proposed Rule's definition of hostile-environment
sexual harassment is unwelcome sexual conduct that is ``so severe,
pervasive, and objectively offensive that it effectively denies a
person equal access to the recipient's education program or activity.''
The ``and'' in this definition narrows the definition of misconduct to
which schools are required to respond to such a degree they could not
meaningfully protect equal access to educational opportunity. The
proposed definition is inappropriately underinclusive. The ``and''
should be replaced with an ``or.''
However, it is also important to avoid expanding the definition of
sexual harassment so that it becomes inappropriately overinclusive. A
definition based in the one that the Supreme Court provided in Meritor
Savings Bank v. Vinson strikes a balance that is neither too
underinclusive nor overinclusive. Schools should define sexual
harassment as unwelcome sexual conduct that is sufficiently severe or
pervasive as to deny or unreasonably limit a person's equal access to
educational opportunity.
The definitions of sexual misconduct that a school adopts will
directly affect which incidents lead to complainants' reports. But the
goal should not be merely increasing the number of reports full stop;
the goal should be getting the misconduct definitions right so that the
reports that are made are ones that comport with fairness and that
allow enforcement is legitimate.
Question (c). The geographic location limitations, which would
limit instances where schools may respond to sexual harassment and
assault to school grounds, activities, and programs;
Answer (c). Limiting a school's response to incidents that occur
only on school grounds or in its activities and programs would fail to
include incidents that occur off-campus. Given that many students live
and interact off-campus, and attend social events off-campus, sexual
misconduct that occurs in those locations would not be subject the
school's disciplinary authority. The negative impact on reporting of
those incidents is clear. Students who experience sexual misconduct by
another member of the school community in an off-campus location could
of course still report criminal incidents to the police. But they would
unjustifiably be deprived of a key means of addressing a discriminatory
situation that may have a severe impact on equal access to education.
Question (d). The clear and convincing standard requirement; and
Answer (d). The Department of Education proposes to allow schools
to use either the preponderance of the evidence standard or the clear
and convincing evidence standard. It does not propose to require the
use of clear and convincing evidence. I agree that either standard is
consistent with Title IX and that it is permissible for the Department
to leave the choice of standard to schools.
But importantly, if a school chooses one standard for sexual
misconduct, it should adopt the same standard for non-sexual misconduct
such as racial harassment. The Proposed Rule would unfortunately allow
schools to use the higher standard for sexual cases while using the
lower one for non-sexual ones. That would be discriminatory, and the
Rule should instead require symmetry and equalization of the standards
for sexual and non-sexual misconduct.
Question (e). The actual knowledge standard and requirements for
filing formal complaints.
Answer (e). The Department of Education proposes that schools be
held responsible for violating Title IX only if they knew of sexual
misconduct allegations and were deliberately indifferent to them. This
is far too permissive a standard, and it would hold schools responsible
only for egregious institutional conduct. Such a low expectation
undermines the Title IX's goal of holding schools responsible for
adhering to the prohibition of sex discrimination. The proper solution
is instead to hold schools to have violated Title IX when they have
responded unreasonably - that is when they knew or should have known of
sexual misconduct and failed to respond.
Question 3. You, along with Professors Nancy Gertner and Janet E.
Halley, submitted a 22-page comment letter to the Department of
Education regarding its proposed Title IX rule. As part of your legal
analysis, you denounced some parts of the rule that limited a school's
responsibility to address and respond to incidences of sexual
harassment and assault. For example, the Department of Education's
proposed rule limits a school's Title IX responsibilities only to
conduct committed on a school's campus or at a school-sponsored program
or activity. Based on your legal scholarship and research, how does
this narrowing of the scope of a school's responsibility undermine
Title IX's goal of ensuring equal access to education regardless of
sex? How would you suggest this part of the rule be changed?
Answer 3. Limiting a school's Title IX responsibilities to conduct
committed on a school's campus or at a school-sponsored program or
activity unjustifiably narrows the scope of a school's responsibilities
and undermines Title IX's goal of ensuring equal access to education.
Many students live and socialize off-campus, and some incidents of
sexual misconduct occur off-campus. The geographic location of an
incident is not important to determining whether an incident has a
discriminatory impact on educational access. What is important is
whether the parties share the common environment of a school's program
and activities. Because the goal of Title IX is ensuring equal access
to education, the impact on the educational experience of an individual
due to another's discriminatory conduct, regardless of where that
conduct occurred, should be focus of the inquiry. It should not matter
whether the discriminatory conduct occurred on campus, off campus, or
hundreds of miles away. The Education Department should change its
proposal to provide that a school must provide Title IX remedies when a
complainant's educational opportunity is concretely impaired by conduct
in the school's educational programs and activities, or by the conduct
of the school's students, staff, or faculty.
Question 4. Under the Department of Education's proposal, schools
would only be required to respond to instances of sexual harassment or
assault of which they have ``actual knowledge.'' This means that
schools would only be responsible for students who report to a Title IX
Coordinator or other official with certain authority. To put a finer
point on it, if a student reported harassment to anyone else, like a
professor, advisor, or even a coach--as was true in the cases of
gymnasts at MSU who reported Dr. Larry Nassar--the school would not
have responsibility for addressing this sexual assault. In your
opinion, does the ``actual knowledge'' standard adequately hold schools
responsible for upholding Title IX?
Answer 4. The proposal of an ``actual knowledge'' standard attempts
to limit schools' responsibility for responding to incidents of which
school authorities are ignorant and could not address even if they
wanted to. The ``actual knowledge'' standard overshoots the mark,
however, and does not adequately hold schools responsible for ensuring
equal access to education as required by Title IX. It would be most
consistent with school's Title IX obligations to make them responsible
for responding reasonably to incidents when they'' know or should have
known'' of the sexual misconduct. In order to lesson ambiguity about
the circumstances in which a school ``should have known'' of sexual
misconduct, schools should make clear designations in advance of which
school employees are required to report instances of sexual misconduct
of which they become aware to the school's Title IX Office. But it is
also important that not every instance in which a student confides in
any school employee be one that automatically leads to the imposition
of responsibility on the school itself. Many students value the ability
to speak confidentially with a trusted teacher or mentor with the
knowledge that those trusted adults will not be obligated take the
decision to report an incident out of the students' hands. Students may
seek out such confidential discussions with teachers or mentors
precisely to seek help in deciding whether they wish to report an
incident. While the proper standard for school's responsibility is
``knew or should have known,'' it is important that the mere fact that
a student confided in a professor about an incident not automatically
mean that the school knew or should have known of the incident.
Please see also my answer to Senator Warren's Question number 2e.
Question 5. In a piece for The New Yorker, you wrote, ``[w]hile
it's essential for each party to be allowed to put questions to the
other party, adversarial cross-examination is perhaps not the best way
to do so in the context of a school's disciplinary process, which is
not a court.'' \2\ Please explain the drawbacks to requiring live
cross-examinations. What are other potential methods schools can use to
obtain relevant information regarding an instance of sexual harassment
or assault?
---------------------------------------------------------------------------
\2\ Jeannie Suk Gersen, ``Assessing Betsy DeVos's Proposed Rules
On Title IX and Sexual Assault,'' The New Yorker (February 1, 2019),
https://www.newyorker.com/news/our-columnists/assessing-betsy-devos-
proposed-rules-on-title-ix-and-sexual-assault.
Answer 5. Please see my answer to Senator Alexander's Question
number 1, above.
senator rosen
Question 1. As others have expressed today, I am incredibly
concerned with the proposed rollbacks of Title IX protections for
sexual assault survivors and how they would jeopardize student safety,
particularly students in my home state of Nevada. Among other harmful
provisions, the Department of Education's proposed rule only allows
schools to investigate a report of sexual harassment if it occurred
``within a school's own program or activity.'' At University of Nevada
Las Vegas (UNLV) - a public university with the highest student
enrollment rate in my state - only 6 percent of full-time students
reside on campus. UNLV is a commuter campus, so the majority of
students experience sexual violence, harassment, or misconduct
involving fellow students outside the campus or university-sponsored
program or activity. Likewise, in a 2016 survey of sexual conduct and
campus safety, 79 percent of University of Nevada Reno students
reported that ``unwanted sexual conduct affecting students occurs off
campus''. And this doesn't even account for the many Nevadans who
attend other commuter campuses like Truckee Meadows Community College,
Nevada State College, and College of Southern Nevada. Changing the
rules so schools only have to respond if the incident occurred on
campus would have a direct negative impact on survivors of sexual
assault and harassment in Nevada. Just because assault or harassment
took place off campus, students may be forced to see their harasser on
campus every day, and their education can be impacted - potentially
resulting in them dropping out of school altogether.
Question (a). Given that Title IX itself does not state that
discriminatory conduct must occur during a school activity for there to
be a discriminatory environment, how is this proposed change
appropriate?
Answer 1. Title IX prohibits the denial of ``the benefits of . . .
any education program or activity receiving Federal financial
assistance,'' on the basis of sex. It does not state whether
discriminatory conduct must occur during a school activity, or can
occur outside of a school activity. However, given Title IX's goal to
ensure equal access to educational opportunity, it is most reasonable
to interpret the statute to require schools to address discriminatory
conduct by its students, faculty, and staff that occur both on and off
campus, of the conduct has a discriminatory impact on campus. Denial of
the benefits of a school's program or activity may occur because of
discriminatory conduct outside of the school's program or activity.
Answer (a). Please also see my answer to Senator Warren's Question
number 3.
Question (b). Nevada institutions like UNLV have pledged to
continue to offer support and resources to survivors of off-campus
assaults, even if this rule goes into effect. Unfortunately, not all
schools will do the same. How will these changes affect the rate of
student reporting of sexual misconduct?
Answer (b). Please see my answer to Senator Warren's Question
number 2c.
senator sanders
Question 1. As you know, Secretary DeVos rescinded guidance issued
by the Obama administration that helped schools understand their
responsibility to address campus sexual assault and ensure student
safety and rights. Colleges and universities are focused on policies
and procedures, the Department of Education ensures schools comply with
federal law and it seems students, faculty and visitors to campus are
an afterthought. Based on your experience working in the field of
criminal law, how should the views, perspectives and experiences of
students and various stakeholders taken into account to ensure that
everyone feels safer on campus?
Answer 1. Regular campus climate surveys give students, faculty,
and employees of colleges and universities the opportunity make their
experiences with sexual misconduct known to the institution. Accurate
statistics are important to increasing knowledge about campus sexual
assault. In addition to the function of gathering knowledge, the fact
that a school conducts a climate survey and is interested in wide
participation in the survey communicates to stakeholders that the
school is serious about learning of the scope of the problem and
working to address it.
In this context, despite the temptation to use climate surveys as
vehicles to communicate a certain message, it is also extremely
important that climate surveys, to the extent possible, take care not
to construct or distort the perception and understanding of the risk
being measured. Climate surveys that are intended to truly measure the
incidence of sexual misconduct should use clear and descriptive terms
that make clear exactly what behavior is being asked about. Lack of
clarity, lumping of many different kinds and degrees of behavior into
large categories, and conflation, without definition, of various terms
such as ``sexual assault,'' ``sexual violence,'' ``violation,''
``nonconsensual,'' ``unwanted,'' ``unwelcome,'' and many others, make
it difficult for surveys to produce knowledge on which we can
confidently rely. Inflation or deflation of the scope and prevalence of
campus sexual assault is not helpful to ensuring campus safety.
Question 2. The Clery Act, amended by the Violence Against Women
Act (VAWA), requires colleges and universities across the United States
to disclose information about crime on and around their campuses. The
law applies to most institutions of higher education because it compels
compliance in order to participate in federal student financial aid
programs. Again, based on your experience working in the field of
criminal law, are schools fully complying with the Clery Act? Is the
Department of Education properly enforcing the Clery Act and VAWA?
Answer 2. In my experience, schools are complying with the Clery
Act. In some instances, schools are overcomplying, by sending out
immediate campus-wide notices disclosing alleged sexual misconduct
incidents on campus as they occur, which is unhelpful to the goal,
mentioned in Question # 1, of ``making everyone feel safer on campus.''
I am not currently in a position to know whether the Department of
Education is ``properly enforcing the Clery Act and VAWA.''
Question 3. Colleges and universities seem to be struggling with
the repeal of the Obama Title IX rules since they provided much needed
guidance for institutions experiencing rising cases of sexual assault
and harassment. While Secretary DeVos has proposed new guidelines, they
are not in effect and have drawn criticism for favoring the rights of
the accused over those of the survivor and for not actually preventing
or addressing campus sexual assault. In the meantime, how can colleges
and universities strengthen their campus disciplinary process to ensure
that all students are safer on and near campus, especially if students
feel discouraged from coming forward about sexual assaults and other
acts of violence?
Answer 3. I am troubled by the notion that ensuring due process for
the accused means discouraging students from coming forward about
sexual assault. I reject that false choice. It is important to
understand that fairness for all parties is compatible with rigorous
and legitimate measures to address sexual assault. The Obama Title IX
guidance unfortunately did not lead schools to that understanding, as
many of them responded to the guidance by treating the accused unfairly
in their efforts to take sexual violence seriously.
I disagree with many aspects of Secretary DeVos's Proposed Rule,
but I also agree with many other aspects of it. It is important that
the Proposed Rule not simply be rejected out of hand but rather that we
do the hard work of evaluating its merits and demerits. \3\ See also my
answer to Question number 4, below.
---------------------------------------------------------------------------
\3\ See, e.g., Jeannie Suk Gersen, ``Assessing Betsy DeVos's
Proposed Rules On Title IX and Sexual Assault,'' The New Yorker
(February 1, 2019), https://www.newyorker.com/news/our-columnists/
assessing-betsy-devos-proposed-rules-on-title-ix-and-sexual-assault;
Jeannie Suk Gersen, Nancy Gertner & Janet Halley, Comment on Proposed
Title IX Rulemaking, Submitted Jan. 30, 2019, https://perma.cc/3F9K--
PZSB.
Question 4. What changes to Secretary DeVos' proposed Title IX
guidance would you recommend to ensure that the administration does not
create a campus sexual assault disciplinary process that favors
wealthier students and their families who can afford attorneys and
consultants to guide them through the labyrinth of filing a formal
complaint with the ``appropriate person,'' notification requirements,
---------------------------------------------------------------------------
live cross examinations, and extensive knowledge of criminal procedure?
Answer 4. A commitment to basic fairness in a context as serious as
ensuring equal access to education may mean that some procedural
measures, of this question seems to express disapproval, are in fact
essential. I disagree with the assumption embedded in this question
that measures intended to ensure fairness of process have the effect of
favoring wealthier students. Indeed, procedural due process is
particularly important for protecting the educational opportunity of
poor students of color who may be disproportionately represented in
campus sexual misconduct cases.
I embrace the requirements in Secretary DeVos's Proposed Rule that
schools provide advisors for parties who cannot afford one, avoid
favoring or disfavoring either party, employ a presumption of
innocence, explain the allegations to both parties, give both parties
access to the evidence, afford a live hearing before the decisionmaker,
bear the burdens of proof and of production rather than putting them on
either party, and provide written reports explaining decisions and
reasoning. I also agree with the Proposed Rule's provision allowing
schools to use informal dispute resolution methods when both parties
consent.
Changes that I would recommend to the Proposed Rule are as follows:
Live Questions. The Proposed Rule requires that schools allow
cross-examination at a live hearing. A live hearing is
essential to fair process in school-based adjudications, but I
believe that cross-examination is not. Parties should be
allowed to ask questions of other parties and witnesses in a
meaningful way at a live hearing. Instead of cross-examination,
is sufficient, perhaps even optimal, to have parties instead
submit questions to the presiding decision-maker, who should
then ask all questions submitted unless they are irrelevant,
excluded by a rule of evidence clearly adopted in advance,
harassing, or duplicative. This submitted-questions procedure,
if administered fairly, provides ample opportunity for parties
to probe each other's and witnesses' credibility and
consistency, such that direct cross-examination is not needed.
Standard of Evidence. The Proposed Rule allows schools to use
either the preponderance of the evidence standard or the clear
and convincing evidence standard. While I agree that either
standard is consistent with Title IX, the Proposed Rule would
allow schools to use the higher standard for sexual cases while
using the lower one for non-sexual ones. That is
discriminatory. The Proposed Rule should be changed to equalize
the standard of evidence for sexual and non-sexual misconduct.
Off-Campus Misconduct. The Proposed Rule provides that schools
are not obligated to respond to allegations of sexual
misconduct that occur outside of their educational programs or
activities. This is untenable because many students live and
interact off campus, and off-campus misconduct may have a
concrete discriminatory impact on educational access.
Deliberate Indifference Standard. The Proposed Rule provides
that schools are in violation of Title IX only if they know of
sexual-misconduct allegations and are deliberately indifferent
to them. This is too permissive a standard for schools and is
inconsistent with Title IX's mandate. The Rule should be
changed to provide that a school is in violation of Title IX if
it reacted unreasonably--that it knew or should have known of
sexual misconduct and failed to address it.
Response by Dr. Jeff Howard to Questions of Senator Alexander, Senator
Warren, Senator Rosen, and Senator Sanders
senator alexander
Question 1. In your testimony, you outlined that if a student fails
to maintain proper decorum throughout the hearing and questioning
process they will receive a contempt of court citation. Could you
explain in detail what this citation consists of and what sanctions, if
any, result?
Answer 1. The court reads the following statement at the beginning
of a hearing: ``Statement of contempt. Order will prevail at all times
during the hearing. Persons must be recognized by the chair before
speaking. This statement should be considered a warning. Any misconduct
during the hearing will now result in the assignment of appropriate
sanctions to any or all parties involved.''
The board handbook offers the following guidance: Contempt - An
individual found guilty of contempt may be subject to disciplinary
action.
Charges of contempt will be filed against acts which are in
violation of the following guidelines. Although this list shall not be
taken as exhaustive and the judiciary boards may enlarge upon or modify
this list to meet the particular circumstances in any case, the
following are possible acts which might result in contempt of the
judicial board.
1. Failure to fully comply with the instructions or orders of
the courts
2. Failure to fully perform disciplinary measures imposed
3. Conduct which disrupts court proceedings
4. Any act which tends to embarrass, obstruct, or hinder the
duty and function of the boards
5. Any act intended to lessen the authority or dignity of the
boards
6. Failure to cooperate with institutional officials on behalf
of the court
7. Failure to appear before a scheduled meeting of a judicial
board
In extraordinary cases where a student's conduct is excessively
disruptive of the proceedings, the board by majority vote can declare
the student to be in contempt of the judiciary and may then and there
impose disciplinary measures. Such action by the board shall be in
writing.''
Finally, the board could impose sanctions for the contempt charge
from those sanctions within their purview for the case in question.
Sanctions such as a warning, reprimand, service, education, apology,
fines, restrictions, and probation. The board would take into account
the situation and circumstances.
Because the board is so up front about contempt and expectations, I
am unaware of anything beyond a warning being used over the past
decade.
Members of the board may at any time during the hearing question
the respondent, complainant, or witnesses.
Four valuable aspects exist in questioning.
First, the specifics of a case should be sought before turning to
the philosophical aspects.
Secondly, when several individuals are involved in the case, a
specified set of questions should be asked each individual involved as
a test of verification of stories.
Thirdly, feedback questions prove useful for the purpose of
explicating apparent contradictions. This takes place most generally
when someone tries to give answers the way he feels they will appeal
most to the sympathies of the board.
Lastly, a board strives to ask as many questions as possible which
will elicit a definite ``yes'' or ``no'' answer. This provides a solid
foundation of concrete evidence for later discussion.
An inherent part of judicial procedure is the board's effort to
understand both the student and the situations in which they become
involved. If given time to answer well the questions of the board, much
can be learned about attitude and personality from the nature of the
responses. Under no circumstances should board members communicate back
and forth, pass notes, watch the clock, or the like, for the student
deserves the same courtesy and attentiveness from the board which it
demands of him.
It is a good idea to collect one's thoughts for a few moments
between each person questioned. This provides an opportunity to check
for possible conflicts or discrepancies of stories and to decide upon
areas which may need further investigation.
Conflicts must be resolved. It is impossible to conclude anything
on insufficient information. If a situation cannot be clarified through
individual questioning, it is permissible to bring those with
conflicting stories before the board together. Here, however, the
situation generally involves far more than mere misrepresentation; it
is an even more serious matter of honor.
In some cases there occurs two personal relationships which are
important to investigate: What is the student's relationship with his
roommate and with the other students on his floor.
The time element and related specifics are often very pertinent
information for the board to consider. What time did things happen? How
much time was between events? It is always important to inquire about
what went on preceding the specific incident in question, since many
times this is revealing to other factors in the case.
It is essential that no accusation or statement or any kind is made
which cannot be supported by proof. The board members and the staff
advisor must be conscious of this important area of law and qualify
their statement in light of the facts.
Question 2. Your institution provides for direct questioning
between students, or through the Chairperson of the hearing board. Are
there specific guidelines given to the Chairperson as to what questions
to allow or not allow?
Answer 2. The following is provided in the board handbook:
Technical exclusionary rules of evidence followed in a court of law
will not apply, nor will technical legal motions be entertained.
Technical legal rules pertaining to the wording of questions, hearsay,
and opinion will not be legalistically applied. Reasonable rules of
relevancy will guide the board in ruling on the admissibility of
evidence.
The respondent, complainant, and witnesses are entitled to refuse
to answer questions. In the case of the respondent, of his/her
witnesses, refusal to answer will not be taken as indicative of guilt
and must be noted without prejudice. In the case of the complainant or
his/her witnesses, refusal to answer should not necessarily negate any
other part of the testimony.
The Chairperson shall insure that:
Proper decorum prevails. (Failure to exhibit proper behavior
will result in a contempt of court citation.)
Questioning shall be for the purpose of gathering information
only.
All questions be germane; either party may object to unfair or
impertinent questions.
Question 2. a. Is there a specific training provided for the
Chairperson and other board members?
Annual trainings are held for the entire board. One broad training
on the board, duties, etc. and another specific to sexual misconduct,
and then ongoing trainings/professional development type in-services
throughout the year.
Question 2. b. If so, could you provide what is included in this
training?
Answer 2. Judicial Board Trainings
Annual Training
Each year every board member is trained on the policies and
procedures concerning the ETSU Institutional Disciplinary Policy and
the judicial board processes used to address violations.
Each year every board member is trained on the ETSU Student Sexual
Misconduct Policy, Title IX as it relates to board responsibilities,
investigation processes, and board processes used to address
violations. If board members are not available for training, then they
are not eligible to hear sexual misconduct cases.
Additional Trainings
Additional specialized training regarding the Preponderance of
Evidence standard is offered each semester.
Additional specialized training regarding Title IX updates and
legislation is offered each semester.
Additional specialized training regarding police processes is
offered once per year, with a goal of offering once per semester. This
training is led by an officer with ETSU Public Safety.
Philosophically, we have established the following goals for when
board members are ready to hear cases:
1. Each member not only understands, but also can articulate
the university philosophy on discipline.
2. Each member is thoroughly familiar with the procedures for
handling a case; so there will be no hesitation, no
uncertainty, no bickering in the mechanical flow of the
meeting.
3. The board members know each other and their advisor well
enough to permit a free expression of opinion.
4. The board knows the kind of information it needs to make a
wise decision: the facts involved in the misconduct, the
motivation of the student involved, his general conduct, his
level of maturity, the environment in which he lives, and his
purpose in attending the university.
5. The board has some practice in questioning a student so that
it can obtain the necessary information without appearing to
pry into personal matters, without showing prejudices and
without showing hostility.
6. The board understands the importance of its position as a
foundation of responsible self-government.
7. The board recognizes it may serve two purposes:
determination of guilt and assessment of a corrective
disciplinary sanction in an educational manner.
8. The board members themselves feel confident that they are
prepared to handle a disciplinary case.
9. The board recognized the confidentiality of its meetings.
10. The board members recognize that no list of procedures and
no amount of legalism will prove to be a substitute for common
sense, honesty, and good judgment.
11. The board members are generally familiar with due process
requirements.
12. The advisor is sure that the board members are ready for a
case.
senator warren
Question 1. According to data from the U.S. Department of Justice,
only one in five women who are sexually assaulted on campus will
actually report the attack to the police. \1\ What should Congress do
to encourage students to report incidences of harassment and assault?
---------------------------------------------------------------------------
\1\ U.S. Department of Justice, Office of Justice Programs, Bureau
of Justice Statistics. (2014). Rape and Sexual Victimization Among
College-Aged Females, 1995-2013. https://www.bjs.gov/content/pub/pdf/
rsavcaf9513.pdf.
Answer 1. Congress should ensure that reporting options are not
limited. A student may report to an employee or friend. They will
likely report to someone they know or have built a comfort level and/or
relationship with. Do not limit institutions from acting on reports
---------------------------------------------------------------------------
made in this manner.
Question 2. From your perspective, how would each of the following
aspects of the Department of Education's proposed rule,
``Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance,'' affect a
complainant's likelihood of reporting harassment or assault?
a. The live cross examination requirement;
Answer 2. Our institution currently permits the parties to question
one another. This may occur in one of two hearing types at ETSU, in a
judicial board hearing or in an UAPA hearing (defined in state code).
In the judicial board hearing the questions are asked by the
complainant and respondent. They may be in the same room or may be
screened or in separate rooms participating using technology. The
important thing to note is that the question is done in a way that the
parties are comfortable. The questions may be directed to the chair of
the board but both parties hear the question and the response.
Advisors/lawyers are permitted but may not speak in the hearing.
In the UAPA, lawyers may directly question. It is a much more
legalistic process and is offered to the respondent if suspension or
expulsion are possible outcome sanctions.
In both cases, the University has made sure the process happens in
a fair and equitable manner with all due process rights being observed.
One is not necessarily better than the other.
b. The proposed definition of harassment, which would narrow the
scope of what incidences of sexual misconduct schools are required to
respond to;
I do not think that changing the definition helps institutions
address complaints.
c. The geographic location limitations, which would limit instances
where schools may respond to sexual harassment and assault to school
grounds, activities, and programs;
Limiting geography reduces the institutions' ability to respond and
take action on situations that could occur on school trips, spring
break, or study abroad. Geography should not be changed.
d. The clear and convincing standard requirement; and
The preponderance of evidence standard is used by my institution
for all Code of Conduct processes including sexual harassment. We are
in favor of this standard remaining.
e. The actual knowledge standard and requirements for filing formal
complaints.
If a student living in a residence hall reports to their Resident
Advisor (RA) they assume they are reporting to the school. They may
report to the RA because that is who they feel comfortable speaking
with. Institutions should be able to address and respond to complaints
made to others within the institution and not just the Title IX
Coordinator. Clery talks about responsible employees and Campus
Security Authorities who has certain reporting obligations. Title IX
and Clery should align in this way.
senator rosen
Question 1. As others have expressed today, I am incredibly
concerned with the proposed rollbacks of Title IX protections for
sexual assault survivors and how they would jeopardize student safety,
particularly students in my home state of Nevada. Among other harmful
provisions, the Department of Education's proposed rule only allows
schools to investigate a report of sexual harassment if it occurred
``within a school's own program or activity.'' At University of Nevada
Las Vegas (UNLV) - a public university with the highest student
enrollment rate in my state - only 6 percent of full-time students
reside on campus. UNLV is a commuter campus, so the majority of
students experience sexual violence, harassment, or misconduct
involving fellow students outside the campus or university-sponsored
program or activity. Likewise, in a 2016 survey of sexual conduct and
campus safety, 79 percent of University of Nevada Reno students
reported that ``unwanted sexual conduct affecting students occurs off
campus''. And this doesn't even account for the many Nevadans who
attend other commuter campuses like Truckee Meadows Community College,
Nevada State College, and College of Southern Nevada. Changing the
rules so schools only have to respond if the incident occurred on
campus would have a direct negative impact on survivors of sexual
assault and harassment in Nevada. Just because assault or harassment
took place off campus, students may be forced to see their harasser on
campus every day, and their education can be impacted - potentially
resulting in them dropping out of school altogether.
Question (a). Given that Title IX itself does not state that
discriminatory conduct must occur during a school activity for there to
be a discriminatory environment, how is this proposed change
appropriate?
Answer (a). This change could limit institutions and their ability
to respond appropriately to complaints. Commuter students, or student
on study abroad, school trips, or break trips should not have their
complaints treated any differently just because it occurred off campus
grounds.
Question (b). Nevada institutions like UNLV have pledged to
continue to offer support and resources to survivors of off-campus
assaults, even if this rule goes into effect. Unfortunately, not all
schools will do the same. How will these changes affect the rate of
student reporting of sexual misconduct?
Answer (b). Our institution would continue to support and offer
resources to complainants but the change in geography could put
limitations on that response. The complaint is made between students
and that nexus should allow for complaint response no matter the
geography.
senator sanders
Question 1. As you know, Secretary DeVos rescinded guidance issued
by the Obama administration that helped schools understand their
responsibility to address campus sexual assault and ensure student
safety and rights. Colleges and universities are focused on policies
and procedures, the Department of Education ensures schools comply with
federal law and it seems students, faculty and visitors to campus are
an afterthought. Based on your experience working in the field of
criminal law, how should the views, perspectives and experiences of
students and various stakeholders taken into account to ensure that
everyone feels safer on campus?
Answer 1. Campus processes must be accessible and campus procedures
must be fair and equitable to both parties. Institutions have well
established Codes of Conduct and hearing processes. These are not
courts of law but must afford all parties due process. Transparency is
key in assuring that campus constituents understand their rights, their
responsibilities, and resources. Those things should be more open and
not more restricted.
Question 2. The Clery Act, amended by the Violence Against Women
Act (VAWA), requires colleges and universities across the United States
to disclose information about crime on and around their campuses. The
law applies to most institutions of higher education because it compels
compliance in order to participate in federal student financial aid
programs. Again, based on your experience working in the field of
criminal law, are schools fully complying with the Clery Act? Is the
Department of Education properly enforcing the Clery Act and VAWA?
Answer 2. Yes, I think school are complying with Clery and VAWA.
Having worked in this area I have found the DOE and their Clery
Handbook helpful. Institutions must put considerable time and attention
to compliance and training.
Question 3. Colleges and universities seem to be struggling with
the repeal of the Obama Title IX rules since they provided much needed
guidance for institutions experiencing rising cases of sexual assault
and harassment. While Secretary DeVos has proposed new guidelines, they
are not in effect and have drawn criticism for favoring the rights of
the accused over those of the survivor and for not actually preventing
or addressing campus sexual assault. In the meantime, how can colleges
and universities strengthen their campus disciplinary process to ensure
that all students are safer on and near campus, especially if students
feel discouraged from coming forward about sexual assaults and other
acts of violence?
Answer 3. Institutions are faced with an untenable situation, of
trying to hit a moving target with the changing rules.
For students to feel they are being hear, then campus processes
must be fair and equitable and allow for:
a. filing a complaint with those on campus the student might
feel comfortable speaking with
b. School response and support through resources/interim
measures, to both parties
c. a fair and unbiased investigation with two trained
investigators
d. a fair and unbiased hearing process with the ability to
review all related materials, witnesses, and questioning one
another
e. the ability to appeal
Question 4. What changes to Secretary DeVos' proposed Title IX
guidance would you recommend to ensure that the administration does not
create a campus sexual assault disciplinary process that favors
wealthier students and their families who can afford attorneys and
consultants to guide them through the labyrinth of filing a formal
complaint with the ``appropriate person,'' notification requirements,
live cross examinations, and extensive knowledge of criminal procedure?
Campus student conduct processes are not courts of law. Student,
complainants and respondents should be afforded due process rights in
any campus process. Advisors/attorneys should serve as an advisor and
should not be involved in the campus conduct hearing directly but
should advise their advisee/client in the process.
I am supportive of removing the single investigator model and for
holding a hearing before imposing a sanction. I am in favor of both the
complainant and respondent being allowed to review all materials
collected and to be able to question one another and any witnesses/
evidence submitted. This can be done in such a way that is respectful
and equitable to all parties without it having to be done by an
advisor/representative/attorney.
Many institutions, including mine, already allow for such
questioning.
The more conditions and parameters placed on Title IX complaints
the less institutions will be able to respond. Students should be able
to file a complaint with others besides the Title IX Coordinator and
students should be able to file complaints that happen off campus.
______
[Whereupon, at 12:04 p.m., the meeting was adjourned.]
[all]