Comments On The Proposed Title IX Regulations

NAS

On November 16, Education Secretary Betsy DeVos released proposed regulations to enforce Title IX of the Education Amendments of 1972. The National Association of Scholars strongly supports most of the proposed changes, which help to ensure fairness for both the accuser and the accused in cases of sexual harassment. The new regulations will provide for full consideration of all evidence, access to counsel by both the accuser and accuser, and a live hearing with an opportunity for cross-examination.

However, we are concerned that the Department does not propose to prohibit double jeopardy and does not ensure that all training materials for Title IX coordinators and other officers are made publicly available. We also strongly urge the Department to require colleges and universities to use the standard of “clear and convincing evidence” when finding guilt. The Obama administration had pushed colleges to use the lower “preponderance of evidence” standard, which proved unreliable in getting to the truth.

The Department is now accepting, through the federal government’s online rulemaking portal, comments regarding the proposed Title IX regulations. NAS has submitted the following comment. 

We encourage NAS members to submit comments as well. The deadline for submission is January 28, 2019. 


[Docket ID ED-2018-OCR-0064]

November 21, 2018

The Honorable Betsy DeVos

Secretary

U.S. Department of Education

400 Maryland Avenue, S.W.

Washington, DC 20202

Dear Secretary DeVos,

I urge the Department of Education to enact its proposed amendments to regulations implementing Title IX of the Education Amendments of 1972—with some small modifications that I believe will strengthen your excellent reforms.

I write as President of the National Association of Scholars (NAS). NAS is a network of scholars and citizens united by our commitment to intellectual freedom, the pursuit of truth, and virtuous citizenship. As part of our mission, we support policies that promote fairness and due process for all students. We oppose sexual discrimination in higher education.

I applaud the Department for preparing to issue regulations that, for the first time, provide a clear account of what Title IX obligates recipient institutions to do to address sexual harassment as a form of sex discrimination. By proposing regulations, rather than issuing guidance documents, the Department gives stakeholders a meaningful opportunity to engage in the rulemaking process. The new regulations, because they will be mandatory, will also provide a clear, transparent standard that colleges and universities must meet—and a clear standard by which complainants can hold their institutions accountable.

However, in response to the Department’s Directed Question 4, I urge you to strengthen the language setting forth training requirements for Title IX Coordinators, investigators, and decision-makers (Section 106.45 (b)(1)(iii)). The Department should require recipient colleges and universities to disclose publicly the training materials for Title IX coordinators, investigators, and decision-makers, in order to verify that they are free from bias, in keeping with these proposed regulations. Although Section 106.45(b)(7) requires recipients to make these training materials available to the Department and to complainants and respondents for review, these materials should be available to the public and to students and employees who are not involved in complaints of sexual harassment, in order to promote confidence in the fairness of recipients’ Title IX grievance procedures.

In response to Directed Question 6, I urge the Department to require a uniform standard of evidence for all Title IX cases, and to require that this standard be one of clear and convincing evidence (Section 106.45(b)(4)(i)). Given the gravity of charges of sexual harassment, and the need for both claimant and respondent to have confidence that the system will reach the truth, recipients must use a standard that yields reasonable certainty. The preponderance of evidence standard, which permits recipients to assign responsibility on the basis that the respondent is “more likely than not” guilty, fails to yield sufficient certainty and is therefore inappropriate.

In response to Directed Question 8, I urge the Department to require recipients to maintain record of their Title IX training materials in a public manner. Section 106.45(b)(7) requires recipient institutions to maintain these records for three years, and to make them available to the Department and to complainants and respondents for review. But in order for students, employees, and members of the public to trust that recipient institutions will handle complaints of sexual harassment in a fair manner, these training materials must be made public.

In addition, I strongly urge the Department to prohibit double jeopardy. The appeals process set forth in Section 106.45(b)(5) permits recipient institutions to allow claimants to appeal findings of not guilty, thereby subjecting respondents to multiple investigations of the same allegation. This allowance contradicts a basic principle of our legal system.

With these changes, the Department’s proposal will better protect due process, which leads to fairer results for both the claimant and respondent in allegations of sexual harassment.

Below, I address the proposed changes in the order they appear in the Department of Education’s proposal published in the Federal Register.

I. Recipient’s Response to Sexual Harassment

Proposed section 106.44 rightly adopts Supreme Court standards for sexual harassment, and it rightly applies Title IX as a law that forbids sex discrimination by colleges and universities that receive federal funding—not as a catch-all legal tool to address other forms of unwanted sexual behavior. The Clery Act and other laws govern other crimes and other forms of sexual assault. The Department’s proposal appropriately acknowledges that for the purposes of Title IX, it is colleges and universities—not individual students—that are held accountable for specific forms of misconduct that jeopardize students’ equal access to educational programs and activities.

In particular, NAS applauds two measures the Department has proposed to ensure that Title IX holds recipient colleges and universities accountable for their own misconduct:

·      Section 106.44(a), which limits the scope of colleges and universities’ responsibility to allegations of sexual harassment of which it has “actual knowledge,” meaning allegations that have been reported to the Title IX Coordinator or any official with the authority to institute corrective measures. This language holds colleges and universities accountable only for their own misconduct, and limits the scope of Title IX to the original text of the law.

·      Section 106.44(e)(1), which gives a definition of sexual harassment that makes clear that Title IX governs misconduct by colleges—not students. In particular, the language defining sexual harassment as “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 recipient’s education program or activity” addresses the real problem of sexual harassment while acknowledging that not all forms of unwanted sexual behavior—inappropriate and problematic as they may be—rise to the level of a Title IX violation on the part of colleges and universities.

In addition, we support Proposed Sections 106.44(b) and 106.44(e)(2) through (e)(5), which give colleges and universities the discretion to respond to complaints of sexual harassment in a manner besides opening a formal investigation. By clarifying that colleges may provide a variety of supportive measures to students who report sexual harassment but who decline to file a formal complaint, the Department respects the choices of some complainants who do not wish to go through a formal investigation, and also respects the discretion of colleges and universities to provide other services such as counseling, changes in work or housing locations, leaves of absence, and other such non-disciplinary services.

II. Grievance Procedures for Formal Complaints of Sexual Harassment

The proposed section 106.45 sets forth an excellent procedure for addressing formal complaints of sexual harassment guided by principles of fairness to both the accuser and the accused.

The National Association of Scholars particularly supports the manner in which these regulations provide parity to both the complainant and the respondent by means of

  • Section 106.45(a), which notes that the university’s mistreatment of either the complainant or the respondent may constitute discrimination on the basis of sex under Title IX. Both men and women may be—and have been—wrongly deprived of educational opportunities on the basis of their sex. The Department rightly recognizes this fact and notes that if a college or university “does not investigate and adjudicate using fair procedures before imposing discipline,” it may be guilty of discrimination against the respondent.
  • Section 106.45(b)(1)(i), which requires colleges and universities to “treat complainants and respondents” equitably, defines “remedies for the complainant” designed to restore or preserve access to educational programs if the respondent has been found guilty, and requires “due process protections for the respondent before any disciplinary sanctions are imposed.”
  • Section 106.45(b)(1)(ii), which requires investigations to consider all relevant evidence, “including both inculpatory and exculpatory evidence” and forbids the use of “a person’s status as a complainant, respondent, or witness” to determine credibility. It is inappropriate to assume a person’s trustworthiness on the basis of whether he or she is the accuser or accused. Likewise, it is unfair to permit only one side to present evidence. The Department here restores parity and fairness to procedures for investigating and determining responsibility.
  • Section 106.45(b)(1)(iii), which prohibits Title IX Coordinators, investigators, or decision-makers in cases of alleged sexual harassment from having “a conflict of interest or bias,” requires them to receive training on the definition of sexual harassment and how to conduct investigations that ensure due process, and prohibits the use of training material that relies on sex stereotypes. These crucial requirements will assist recipient colleges and universities in coming to an accurate assessment of the facts when handling formal complaints of alleged sexual harassment.
  • Section 106.45(b)(1)(iv), which includes the “presumption that the respondent is not responsible for the alleged conduct” until a determination is made at the conclusion of the grievance process. This is crucial because it is a fundamental assumption that in order for a hearing and investigation to be fair, the accused must not be prejudged to be innocent or guilty. Particularly given the gravity of charges of sexual harassment, and the serious consequences that follow, it is imperative that the investigation and adjudication system give the accused the right to the presumption of innocence.
  • Sections 106.45(b)(1)(vi)-(ix), which require that recipient colleges’ and universities’ official grievance procedures include significant specificity about the range of possible sanctions and remedies that colleges may impose on respondents found responsible for sexual harassment, the standard of evidence to be used to determine responsibility, the procedure for any possible appeal, and the range of supportive measures available to complainants and respondents. Inclusion of this information is key because individuals must have a clear understanding of the procedures and possible penalties for wrongdoing.

This section would be strengthened if Section 106.45(b)(1)(iii), in addition to requiring that training materials for Title IX coordinators, investigators, and decision-makers not rely on sex stereotypes, also required that such training material be transparent and available for the public to view. Although Section 106.45(b)(7) gives the Department the right to review these training materials, along with records of formal complaints, investigations, and decisions about alleged sexual harassment, other members of the recipient college and university communities, as well as members of the public, also have legitimate reasons to review these training materials. Members of the public—including the employees and students who will be affected by the policies recipient colleges and universities develop in response to these regulations—must have confidence that the Title IX Coordinators, investigators, and decision-makers are indeed trained and guided by non-stereotypical, fair training materials.

We support Section 106.45(b)(2), which requires that when recipient colleges and universities receive formal complaint of sexual harassment, they must provide written notice of the grievance procedures and the allegations to the parties in the complaint—including details such as the identities of the parties involved, the date and location of alleged incident, and a statement of the parties’ rights to request to inspect and review evidence. This information is necessary for both the claimant and the respondent to prepare for the investigation, and for the respondent to prepare a defense. By including this requirement, the Department helps to ensure a fair investigative process.

The proposed regulations requiring recipient institutions to conduct investigations when they receive formal complaints of sexual harassment (Section 106.45(b)(3)) provides an excellent blueprint for recipients to follow. We particularly applaud

  • Section 106.45(b)(3)(ii), which requires “equal opportunity for the parties to present witnesses and other inculpatory and exculpatory evidence.”
  • Section 106.45(b)(3)(iii), which forbids recipients from taking action to “restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.” Both respondent and claimant must be allowed to discuss the allegation.
  • Section 106.45(b)(3)(iv), which requires both parties have “the same opportunities to have others present during any grievance proceeding,” including an advisor.
  • Section 106.45(b)(3)(vii), which requires a live hearing with the opportunity for cross-examination. Cross-examination has been described as the “greatest legal engine ever invented for the discovery of truth.” In cases involved such weighty matters as sexual harassment and the educational opportunities of students, it is especially crucial that cross-examination be used to get at the truth.
  • Section 106.45(b)(3)(viii), which requires that both parties have “an equal opportunity to inspect and review evidence.” By giving both parties the ability to consider and respond to evidence, the investigation will be more thorough.
  • Section 106.45(b)(4), which requires that the decision-maker(s) “cannot be the same person(s) as the Title IX Coordinator or the investigator(s),” thereby preventing recipients from using a “single investigator” or “investigator-only” model of Title IX grievance process. In order for any process to be fair, to protect against possible bias or error on the part of a single individual, and to provide for full consideration of all evidence, it is necessary that more than one individual be involved in the process.

However, we believe that in Section 106.45(b)(4)(i), the Department errs in giving recipients the freedom to choose between the preponderance of evidence standard and the clear and convincing evidence standard. Although this proposal improves upon previous guidance documents from the Department by giving recipients the option to use a higher standard of evidence, it fails to recognize the immense importance of using a fair, reasonably high standard of evidence when recipients consider such weighty matters as sexual harassment.

A finding of responsibility against the respondent carries serious, long-term consequences, including the possibility of expulsion, inability to graduate from an educational program, life-long reputational harm, and significant hindrance in pursuing a career. These serious consequences must be handed down only when there is clear evidence of guilt. The preponderance of evidence standard, which holds that it was more likely than not that the respondent is guilty, fails to promote confidence that an investigation will reach certainty as to the truth.

The Department claims, in its proposal, that “it is appropriate for the Department to give (recipients) the flexibility” to choose between these two standards of evidence because “of the due process and reliability protections afforded under the proposed regulations.” But the other due process and reliability protections are basic principles of fairness that should accompany—not substitute for—a fair standard of evidence. Both the procedures for investigating complaints of sexual harassment and the standard by which determinations are made must be fair and reliable. The preponderance of evidence standard fails to meet either criteria.

Indeed, the Department itself notes in its proposal that in Lee v. University of New Mexico, “one court has held that in student disciplinary cases involving serious accusations like sexual assault where the consequences of a finding of responsibility would be significant, permanent, and far-reaching, a preponderance of the evidence standard is inadequate.”

We also believe that in Section 106.45(b)(5), the Department errs by permitting recipient institutions to subject respondents to double jeopardy. The Department proposes to require that if recipient institutions permit an appeals process, they must permit both the claimant and respondent to appeal. The effect is that respondents, if found not guilty of sexual harassment, may be subject to a second investigation should the claimant choose to appeal. Prohibition of double jeopardy is a Constitutional guarantee in all criminal proceedings. Recipient colleges and universities, in conducting investigations and decision-making that mirror aspects of criminal proceedings and have serious consequences akin to those that result from criminal charges, should not be given the option to subject respondents to double jeopardy.

In addition, we urge the Department to amend Section 106.45(b)(7) on recordkeeping in order to require recipient colleges and universities to make their Title IX training materials available to the public for review. The Department proposes that recipients must maintain record of these materials for three years, as part of their records of any formal investigations of sexual harassment, and that recipients must make these materials available to the Department, the complainant, and the respondent to review. But it is unclear whether the Department, complainant, and respondent will be permitted to view these training materials before an investigation is completed (at which time the training materials are to be archived along with the finding of the investigation) or whether they will be able to review these materials in advance.  

While records of individual complaints and investigations should not be released to the public in order to protect privacy, there is no privacy violation in publicly releasing records of Title IX training materials. And there is no reason to keep Title IX training materials secret until a complaint and investigation arise. The Department, complainants, respondents, all employees and students of the recipient institution, and members of the public must have confidence that recipients will handle allegations of sexual harassment in a fair and legal manner. Releasing these training documents will promote accountability and confidence in the Title IX grievance system.

III. Clarifying Amendments to Existing Regulations

We support the Constitutional protections articulated in Section 106.6(d), which notes that nothing in this section “requires a recipient to: restrict any rights that are protected from governmental action by the First Amendment of the U.S. Constitution; deprive an individual of rights that would otherwise be protected from governmental action under the Due Process Clauses of the Fifth and Fourteenth Amendments; or restrict any other rights guaranteed against governmental action by the U.S. Constitution.”

This language is important to ensure that Title IX enforcement does not have a chilling effect on free speech.

We strongly support Section 106.12(b), which clarifies that educational institutions controlled by religious organizations do not need to submit a letter to the Department in order to claim their statutorily-granted exemption to aspects of Title IX that are not consistent with their religious tenets. The Department here rightly recognizes that the text of Title IX offers religious exemptions without requiring these institutions to take steps to claim their exemptions. This proposal would rightly reduce unnecessary and unlawful burdens on religiously controlled educational organizations.

Conclusion

We believe the Department’s proposed regulations will promote fairness and due process and assist recipient college and universities in getting to the truth when considering formal complaints of sexual harassment. But we believe these regulations must be strengthened by requiring recipients to use the clear and convincing standard of evidence, by requiring recipients to be transparent about the training materials they use for Title IX Coordinators, investigators, and decision-makers, and by prohibiting double jeopardy.

Yours,

Peter Wood
President
National Association of Scholars

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