Human Rights Watch’s Comments in Response to the US Department of Education’s Proposal to Amend Regulations Implementing Title IX of the Education Amendments of 1972

The following are Human Rights Watch’s comments in response to the US Department of Education’s proposal to amend regulations implementing Title IX of the Education Amendments of 1972 (Title IX) published November 29, 2018 (Docket ID ED-2-18-OCR-0064). The proposed regulations govern schools’ and institutions’ obligations to respond to sexual harassment. Harassment and gender-based violence may constitute discrimination if it interferes with or limits a student’s ability to participate in or benefit from educational programs or activities. Human Rights Watch believes it is important to increase transparency and establish fair and credible procedures for determinations around sexual assault or harassment allegations in educational institutions. However, the proposed regulations, as drafted, undermine efforts by schools to address the broad problems of sexual misconduct by making it more difficult for students to report harassment or assaults and by discouraging schools from investigating specific cases or emerging trends.

Human Rights Watch has extensively documented institutional response to sexual assault in different contexts including by police departments and in the US military. For the reasons detailed in the comments that follow, the Department of Education should immediately withdraw their current proposal and reinstate guidance to institutions set forth in the April 4, 2011, “Dear Colleague” letter.

ED-2018-OCR-0064

RIN 1870-AA14

Human Rights Watch submits these comments in response to the Department of Education’s (DOE) proposal to amend regulations implementing Title IX of the Education Amendments of 1972 (Title IX). The proposed regulations govern schools’ and institutions’ obligations to respond to sexual harassment. Title IX prohibits discrimination on the basis of sex in education programs and activities that receive federal funds. Discrimination can include sexual harassment and assault if it interferes with or limits a student’s ability to participate in or benefit from educational programs or activities.

Discrimination is also prohibited under the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by the United States.[1] Violence against women is a particularly pervasive form of discrimination, severely impairing the ability of women to enjoy their rights. To prevent this extreme form of discrimination, international human rights law requires governments to prevent, investigate, punish acts of violence against women and girls.[2]    

In addition, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), a treaty the US has signed but not ratified, obligates state parties to combat discrimination against women.[3] The Committee on the Elimination of Discrimination against women, the treaty body that interprets and monitors compliance with the CEDAW, has affirmed that gender-based violence is a form of discrimination against women and that state parties should have effective legal, preventive, and protective measures in place to provide justice for victims, hold offenders accountable, and protect society from future acts of sexual violence.[4] 

It is important to increase transparency and establish fair and credible procedures for determinations around sexual assault or harassment allegations in educational institutions against students by other students. Ensuring that complainants have options for resolving their concerns outside of traditional justice channels and that schools offer a range of support services to victims is crucial to effectively addressing and preventing sexual assault on campuses. Similarly, it is also important to ensure students accused of misconduct have an opportunity to be heard before disciplinary sanctions are imposed that may significantly impact their lives. However, the proposed regulations, as drafted, would undermine efforts by schools to address the broad problems of sexual misconduct by making it more difficult for alleged victims to report and discourage schools from investigating specific cases or emerging trends and fully understanding the scope of the problem.[5]

Surveys indicate approximately 23 percent of undergraduate women and five percent of undergraduate men experience sexual assault or misconduct while attending college or university.[6] More than 90 percent of victims do not report the sexual assault.[7] In 2016, only 6,637 incidents of rape were reported at 11,260 college campuses.[8] Many schools reported zero assaults. For example, in 2015, 89 percent of schools reported no incidents of rape at all. Only ten percent of schools reported dating violence and about 13 percent reported stalking.[9] Most incidents are not investigated. In a 2014 survey done at the behest of US Senator Claire McCaskill, more than 40 percent of the 440 four-year institutions sampled had not conducted a single investigation in the previous five years.[10]

While reported numbers are low compared to prevalence rates, they had been rising in recent years in response to efforts to encourage reporting. Between 2009 and 2016, the number of forcible sex offenses reported tripled.[11] Higher reporting numbers indicate increased confidence in institutional response, and is a sign of progress. The proposed regulations would reverse that progress.

In the comments that follow, we restate several proposed regulatory sections and provide our analysis and commentary immediately below each of them.

Section 106.44

1. General. A recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States must respond in a manner that is not deliberately indifferent. A recipient is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of the known circumstances.[12]

By limiting the scope of the school’s responsibility to investigate only cases of which it has “actual knowledge,” (discussed further below) the regulations may effectively discourage schools from taking responsibility for proactively investigating and preventing sexual assaults, which are pervasive in colleges and severely underreported. The proposed regulation would only encompass sexual harassment that is the subject of a formal complaint, and schools will not be held to accountable for harassment they “reasonably should have known about.”[13] The reason given for the proposed change is that that the former standard holds institutions responsible for conduct of which they were unaware. However, holding schools responsible for misconduct which they knew or should have reasonably known about prompts institutions to undertake measures to discover the scope of the problems on campus and take corrective action. Because sexual assault and harassment is vastly unreported, it is even more important to encourage schools to take reasonable measures to determine the extent to which they occur on campus, rather than shift the responsibility to victims to come forward and report in a formal manner. Recognizing the problem of underreporting, some police departments have undertaken various methods to encourage reporting, including permitting blind reporting and use of pseudonyms and conducting outreach.[14] Only when victims feel safe coming forward can problems be recognized early and addressed before they escalate.

In other contexts, such as the workplace, parties are held responsible for conduct that constitutes harassment of which they should have been aware. For example, the EEOC holds an employer responsible “if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.”[15] The Supreme Court has held that employers are liable for hostile work environment harassment by employees if the employer was negligent in failing to prevent harassment from taking place. In assessing such negligence, the Court considered as relevant evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed.[16] The standard proposed in the regulations here would relieve schools of the obligation to monitor the institutional environment and to ensure it is meeting standards for the prevention and punishment of sexual harassment. It would not hold them accountable for actively or passively discouraging complaints from being filed.

The proposed regulation would also evaluate the institution’s response based on a higher standard of “deliberate indifference” instead of reasonableness, as previous guidelines provided and only hold institutions responsible for “clearly unreasonable behavior in light of known circumstances.” The rationale for the new standard is that the reasonableness standard “improperly deprived administrators of needed flexibility to make disciplinary decisions affecting their students.”[17]

Under Title IX, schools are responsible for responding to harassment that takes place in an education program or as part of an activity. The 2011 guidance defined a school’s education programs and activities as including “all the academic, educational, extracurricular, athletic, and other programs of the school, whether those programs take place in a school’s facilities, on a school bus, at a class or training program sponsored by the school at another location or elsewhere.”[18] While the statutory language has not changed, in discussing the reasons for proposing the new regulation, the DOE made it clear it now takes a much narrower approach to what the school is responsible for investigating. It cites court decisions that consider whether the school owned the premises, exercised oversight, supervision, or discipline, or funded, sponsored, promoted, or endorsed the event or circumstance. Because assaults often take place at off-campus parties, it is important that schools take responsibility for students’ behavior in those extracurricular environments. However, the only mention of an off-campus incident is a case in which a fraternity, though housed off campus, was considered a “Kansas State University Organization,” is open only to KSU students, and is directed by a KSU instructor, and the university had sanctioned the fraternity involved in the incident for alcohol use. The court considered it an operation of the University because the school had substantial control over student conduct within the fraternity. The example cited indicates a very high bar for considering off-campus fraternity-related activities a part of the school’s responsibility.[19]

The intent to narrow the geographic focus of the school’s responsibility is apparent in the cost analysis portion of the proposed regulations which assumes a significant reduction in the number of investigations at institutions by “using the number of non-campus, public property, and reported-by-police reports as a proxy for the number of off-campus sexual harassment investigations.”[20] The new narrow definition would also seem to exclude online harassment by students, even if it is severe enough to discourage a person from attending classes. For schools without on-campus housing facilities, such as community colleges or high schools, the obligation to investigate would be weakened further still.

Section 106.44(c) Emergency removal. Nothing in this section precludes a recipient from removing a respondent from the recipient’s education program or activity on an emergency basis, provided that the recipient 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.

In the reasoning for this provision, the DOE states that it tracks language of Clery Act regulations at 34 CCR 668.46(g). However, that provision relates to emergency responses and evacuation procedures. Any reference to notification refers to alerting the campus of an emergency security threat, not to a due process procedure for the person who is the cause of the threat.[21] While having a process in place for a respondent to challenge whether a suspension is fair, the new regulations make it very difficult to remove a respondent absent an extreme emergency yet conversely seem to require a complainant to demonstrate that he or she has been unable to access education as a result of their harassment in order to have the complaint investigated. In other words, the stated goal of the regulations, to treat parties equally, is subverted by placing the burden on the victim to show the incident denies him or her access to educational activities or programs in order to start an investigation. Yet, the accused is not removed from the complainant’s educational program or activity unless there is proof of an immediate threat to the health or safety of students.  Ensuring due process rights for the accused should not restrict or unnecessarily delay Title IX protections for the complainant. The Department of Education should consider drafting a more nuanced approach that provides schools with a range of options short of emergency removal that are proportionate to the alleged misconduct and meet the needs of the victim.

Section 106.44 (e)(1)(ii) Sexual harassment means “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.”

This proposed definition is much narrower than prior guidance and federal law. It strips the schools of their obligation to investigate a wide range of sexual misconduct that would be impermissible in other contexts. In the workplace, the EEOC states that “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.”[22] The US military definition of sexual harassment includes “Any deliberate or repeated unwelcome verbal comment or gesture of a sexual nature by any member of the armed forces or civilian employee of the Department of Defense.”[23] Earlier guidance from the Department of Education similarly defined sexual harassment as “unwelcome conduct of a sexual nature.” [24]

The reasons for the proposed regulation indicate that the earlier guidelines required institutions to respond to conduct less severe than that proscribed by Title IX.[25] However, broader liability for harassment is an approach taken to encourage parties to prevent harassment and avoid or limit the harm from harassment. By narrowing the definition of harassment, these regulations may discourage reporting and investigations.

Even under the previous standard of sexual harassment, victims often chose not to report because they erroneously did not believe their case was sufficiently serious, therefore limiting the ability of the school to understand and address different levels of misconduct.  The new higher standard will likely further discourage reports since even credible allegations of severe misconduct may be set aside if it is not “pervasive.”

The Notice of Proposed Rulemaking itself anticipates that the number of investigations universities conduct, already low, will be further reduced by the new regulations. The cost assessment of the proposed regulations anticipates a 32 percent reduction in investigations at institutions that will change their procedures as a result of these rules.[26] The 2014 McCaskill survey found even that under previous standards which required schools to investigate sexual violence they knew or should have known about, “more than 40% of schools in the national sample have not conducted a single investigation in the past five years. More than 20% of the nation’s largest private institutions conducted fewer investigations than the number of incidents they reported to the Department of Education, with some institutions reporting as many as seven times more incidents of sexual violence than they have investigated.”[27] The proposed regulations would lessen the obligation on schools to investigate by excluding many off-campus cases, those that were not reported through official channels, and harassment that on its face is not severe and pervasive. Given the dearth of investigations currently undertaken, a further reduction seems unlikely to enhance equal access to education by reducing incidents of harassment on campus.

Section 106.44 (e)

 (5) Formal complaint means a document signed by a complainant or by the Title IX Coordinator alleging sexual harassment against a respondent about conduct within its education program or activity, and requesting initiation of the recipient’s grievance procedures consistent with section 106.45

(6) Actual knowledge means notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to a teacher in the elementary and secondary context with regard to student-on-student harassment. Imputation of knowledge based solely on respondeat superior or constructive notice is insufficient to constitute actual knowledge. This standard is not met when the only official of the recipient with actual knowledge is also the respondent. The mere ability or obligation to report sexual harassment does not qualify an employee, even if that employee is an official, as one who has authority to institute corrective measures on behalf of the recipient.

The proposed requirement to narrow the number of people to whom victims can report to, only an official who can institute corrective measures, is contrary to efforts that have been made to encourage reporting. The 2014 McCaskill report, assessing how colleges and universities report, investigate, and adjudicate sexual violence, found that schools fail to encourage reporting of sexual violence.[28] To improve reporting, it recommended institutions create a hotline or website as a reporting tool and permit survivor reports to be kept confidentially. Students may also feel more comfortable approaching a trusted advisor instead of sharing a sensitive, possibly traumatizing experience with an unknown administrator. Because often alcohol or drugs are involved in sexual assault cases, victims may be afraid, if they report, they will also be subject to disciplinary actions. In research on sexual assault in the military, for example, Human Rights Watch found that fear of disciplinary action for collateral misconduct was a significant impediment to encouraging survivors to come forward.[29] Indeed, some perpetrators explicitly told victims not to report or they would get them in trouble for underage drinking.[30] For that reason, the ability to report confidentially is important. Requiring a signed statement may also act as a deterrent to reporting. Human Rights Watch found that several police departments have permitted victims to report anonymously in an effort to allow the victim more options and control over whether to participate in an investigation. Police find it advantageous because they can learn more about crimes committed in the area, and it may allow them to track a predator who commits multiple offenses.[31]

Section 106.45(b)(2)(i)(B) The written notice to the parties about the potential violation of code of conduct must also “inform the parties of any provision in the recipient’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process.”

The reason for this statement is that it is “important for recipients to notify parties about any provisions in its code of conduct that prohibit knowingly making false statements or knowingly submitting false information during the grievance process so as to emphasize the recipients’ serious commitment to the truth-seeking nature of the grievance process and to incentivize honest, candid participation in it.”[32] This seemingly innocuous requirement is actually contrary to practices by law enforcement concerned with encouraging victims to cooperate with investigations as documented in Human Rights Watch’s report “Improving Police Response to Sexual Assault.”  Because victims have a long history of not being believed, there is a sensitivity to implications that their statement is not truthful. Experts interviewed by Human Rights Watch in the context of police handling of sexual assault cases strenuously object to threatening victims implicitly or explicitly with charges for false reporting. In Austin, the former head of the Sex Crimes Unit noted that asking victims to sign a preliminary statement when beginning an interview caused victims to become uncomfortable and less likely to cooperate. The form was subsequently eliminated.[33]

Section 106.45(3)(vii) For institutions of higher education, the recipient’s grievance procedure must provide for a live hearing. At the hearing, the decision-maker 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 a hearing must be conducted by the party’s advisor of choice.

Human Rights Watch understands and agrees with the imperative to ensure that accused students are treated fairly and that their due process rights are respected. However, we strongly disagree that institutions should be required to allow for live cross examinations. Instead, institutions should be afforded greater latitude to make use of other approaches that respect and uphold the rights of both parties. At a minimum, if the regulations mandate live cross-examination, they should not allow the parties to choose “an advisor of choice” who may not be trained or bound by any ethical or professional code of conduct. Instead, the regulations could require the institution to retain experienced counsel who would be responsible for examining all parties on behalf of the school. This would at least mitigate the possibility of abuse.

Requiring a live hearing, with cross-examination of the parties, moves proceedings closer to a criminal proceeding. Many victims do not report sexual assaults to law enforcement because they do not want to be retraumatized by cross-examination and a trial process. However, attending classes or sharing a dorm with the perpetrator may cause stress that makes it impossible for them to recover and stay in school. Thus, victims may be willing to report to the school with the hope of continuing their education but not undertaking a lengthy and arduous criminal justice process.  If schools require victims to be subject to cross-examination, it will almost certainly discourage many students from reporting offenses.

Protecting the rights of accused persons is an important right under US and international human rights law. Accused students should have a right to pose questions to their accusers in some form. The prior guidance, and the proposed guidance for secondary and elementary schools, includes a system that allows defendants to have the benefit of cross examination without requiring a live confrontation. The complainant and respondent have an opportunity to pose questions to the other party and to witnesses prior to a determination of responsibility, “with each party being permitted the opportunity to ask all relevant questions and follow-up questions, including those challenging credibility, and a requirement that the recipient explain any decision to exclude questions on the basis of relevance.”[34] The parties submit written questions to the decision maker, who provides answers and allows for follow up. This practice should be permitted for all Title IX institutions.