Comment on DeVos’ Title IX Rule

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Comment on DeVos’ Title IX Rule

Today, End Rape on Campus submitted its formal comment on Secretary Betsy DeVos’ proposed Title IX rule. In partnership with Know Your IX, End Rape on Campus has collected over 5,700 comments from individuals across all fifty states, Washington DC, Puerto Rico and the U.S. Virgin Islands. The nationwide campaign, Hands Off IX, has hosted action parties in a dozen cities across the country including Denver, CO; Boston, MA; Ithaca, NY; Austin, TX; Lexington, KY; and Washington, DC.

“We are amazed by the support from the thousands of individuals – doctors, educators, parents, advocates, elected officials, and survivors – who have organized action parties, spoken up on social media, and submitted comments through Hands Off IX. Secretary DeVos’ proposed rule is dangerous to survivors and will return our schools to a time when rape, harassment, and abuse were swept under the rug. The public has made their opposition to this rule quite clear, and the Department has a lot of work to do to show they understand and have taken into account the thousands of concerns that have been raised. We look forward to seeing how the Department incorporates the important critiques of the rule, and demand that they take their responsibility seriously to consider each and every comment,” said Jess Davidson, End Rape on Campus Executive Director.

End Rape on Campus outlines ten concerns with the proposed rule:

  1. Discouraging reporting of sexual violence and prioritizing protecting schools over protecting survivors of sexual violence.
  2. Implementing the “preponderance of the evidence” standard as the mandatory burden of proof in campus adjudication.
  3. Severely limiting the definition of sexual harassment that is unnecessarily burdensome on complainants.
  4. Allowing religiously affiliated schools to invoke a religious exemption puts the education and safety of survivors in lesbian, gay, bisexual, transgender, queer, intersex, and asexual communities at risk.
  5. Disallowing informal mediation practices as an acceptable means of resolving student complaints involving sexual harassment or assault.
  6. Requiring direct cross-examination in live hearings leads to retraumatization of survivors of sexual violence.
  7. Requiring schools to limit their investigations of sexual misconduct to acts that take place in a “program or activity” of the school.
  8. Lacking acknowledgment of the barriers historically and currently marginalized communities face.
  9. Limiting of “supportive measures” available to complainants.
  10. Inconsistencies with the requirements under the Clery Act.

Excerpts from End Rape on Campus’ comment include:

“We believe that the proposed rule is a departure from the sole purpose of Title IX: protecting people’s access to education free from discrimination based on sex. This proposed rule prioritizes the rights of schools and respondents at the expense of, rather than in equal or equitable support of, complainants’ rights. We believe this is due to an incorrect focus placed on concerns exclusively about respondents’ rights and fear of the potential for “false accusations.” In truth, only 2%-10% of reported cases of sexual assault are false. Given that male college students are statistically more likely to experience sexual violence than be falsely accused of it, a rule that provides the best protection to students of all genders is one which affords both complainants and respondents with rights and opportunities that are equitable.”

“The proposed rule ignores the frightening prevalence of sexual violence in schools. The proposed rule strays from Title IX’s purpose of keeping students safe from sexual abuse and other forms of sexual harassment ⎯ that is, from unlawful discrimination on the basis of sex ⎯ and instead makes it harder for students to report abuse, allows and requires schools to ignore reports when they are made, and unfairly tilts the investigation process in favor of respondents to the direct detriment of survivors.”

“Not surprisingly, Title IX and student conduct experts oppose this portion of proposed rule. The Association of Title IX Administrators (ATIXA) announced in October 2018 that it opposes live, adversarial cross-examination, stating that instead, ‘investigators should solicit questions from the parties, and pose those questions the investigators deem appropriate in the investigation interviews.’[1] The Association for Student Conduct Administration (ASCA) agrees that schools should ‘limit[] advisors’ participation in student conduct proceedings.’[2] The American Bar Association recommends that schools provide “the opportunity for both parties to ask questions through the hearing chair.”[3]

“Experts support equal appeal rights. 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).’[4] ATIXA announced in October 2018 that it supports equal rights to appeal for both parties, ‘[d]espite indications that OCR will propose regulations that permit inequitable appeals.’[5] Even the white paper by four Harvard professors that is cited by the Department (p.9-10 n.2) recognizes that schools should allow ‘[e]ach party (respondent and complainant) [to] request an impartial appeal.’”[6]

“The proposed rule gives schools a free pass to discriminate and block access to civil rights protections for transgender and queer students. The Department’s no-notice religious exemption is an escape hatch—schools claim the exemption after a report and evade any responsibility. This provision should be eliminated, and accountability for religious exemptions should remain in the form of a formal application for an exemption. This tried and true method allows students a modicum of accountability while not infringing on the religious freedom of schools or unfairly burdening recipients with needless paperwork.”

“Section 106.45(b)(1)(iv) would only encourage schools to ignore or punish historically and currently disenfranchised and underrepresented groups that report sexual harassment for ‘lying’ about it.[7] Lying about or misreporting sexual assault is yet another myth that is often perpetuated by opponents of the campus Title IX process. As explained in a peer-reviewed article from 2010, false accusations of rape are extremely rare, and misreporting equally so.[8] However, this section of the proposed rule ignores those facts and adheres to the falsehood that is false reporting. This provision invites discrimination, and gives schools license to ignore or punish survivors who are women and girls of color,[9] pregnant and parenting students,[10] and LGBTQ students,[11] because of harmful race and sex stereotypes that label them as ‘promiscuous’ and often result in them being less likely to be believed and more likely to be discriminated against throughout the process.”

Read the entirety of the End Rape on Campus comment.