The U.S. Department of Education (ED) will reopen the Title IX NPRM public comment period for 24 hours on Friday, February 15th in “an abundance of caution” to address concerns that some users may have experienced technical issues preventing submission of comments using the eRulemaking Portal. Their intention to reopen the comment period was announced Tuesday afternoon in an official pre-publication of a notice scheduled for publication in the Federal Register on Thursday, February 14th.
Commenters must submit comments: between 12:00 a.m. EST and 11:59 p.m. EST on February 15, 2019 if submitted through the Federal eRulemaking Portal; between 9:00a.m. and 5:00 p.m. EST on February 15, 2019, if hand-delivered; or postmarked on February 15, 2019, if delivered by postal mail or commercial delivery. For this 24 hour period comments can again be filed at https://www.regulations.gov/document?D=ED_FRDOC_0001-0830 on the Portal.
ED is currently processing 104,367 comments received from November 29, 2018 to January 30, 2019, of which 10,943 have been reviewed and posted on the Portal as of February 12th. The new notice says “Once all comments have been processed, they will be posted and publicly available.”
Safety Advisors for Educational Campuses, LLC (SAFE Campuses, LLC), a social entrepreneurship organization devoted to safer learning environments, formally filed comments with the U.S. Department of Education Monday night opposing their proposed adoption of controversial changes to Title IX regulations. Our team, with more than 100 years of combined experience working with sex-discrimination and sexual violence issues in education, believes the proposed regulations are discriminatory, are inconsistent with established case law, and would make educational programs in the United States less safe.
The Title IX Notice of Proposed Rulemaking (NPRM) would significantly narrow the scope of sex-discrimination that educational programs can address under Title IX, and would impose an unprecedented level of bureaucracy on incidents that are addressed. The NPRM readily acknowledges that this would reduce the number of cases dealt with by educational programs, although the estimates are at best speculative. The increased complexity is likely to reduce the ability of programs to effectively remedy sex-discrimination and or significantly increase the cost of doing so.
The Proposed Rules Would Discriminate Based on Sex
We are particularly concerned that the NPRM in implementing a law designed to prevent sex-discrimination in federally funded educational programs is itself discriminatory. The Education Department (ED) through their Office for Civil Rights (OCR) is charged with enforcing multiple civil-rights laws, however, none of those, including the comparable Title VI, are being subject to a proposed rule that would narrow their scope and make preventing discrimination more difficult.
“Title IX was modeled after Title VI of the Civil Rights Act of 1964, which prohibits race discrimination in programs receiving federal funds,” observed the U.S. Supreme Court (Supreme Court) in 1998 while interpreting Title IX.“The two statutes operate in the same manner, conditioning an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds.”Congress intended these laws to operate identically. “The procedural requirements of both Acts should be identical,” said U.S. Representative Bella S. Abzug in 1974 as part of a Congressional review of the original proposed Title IX regulations.
In issuing the NPRM ED is singling out women and girls, the principal victims of sex-discrimination and thus the principal beneficiaries of laws geared towards preventing it like Title IX, for less favorable treatment than other protected groups. The discriminatory nature of this action is at direct odds with the purpose of Title IX to prevent sex-discrimination, is contrary to Congressional intent as recognized by the Supreme Court, and violates the tenants of equal protection enshrined in the U.S. Constitution.
The Proposed Definitions are Inconsistent With Supreme Court Precedent
The NPRM proposes definitions, to be added at 34 CFR § 106.30, that deviate from longstanding guidance which has been extensively adopted by educational programs, that conflate administrative enforcement with standards set for money damages by the Supreme Court, and that would render administrative standards even more narrow than those in money damages cases. We believe that these changes would reverse progress made by educational programs to combat sex-discrimination, and could potentially subject programs to money damages if they comply with the regulations but still fall short of standards established by the Supreme Court.
The Supreme Court held in 1998 “that a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond.”In adopting this standard the Court carefully distinguished that it was not establishing a standard to determine what constituted a violation of Title IX but rather what met the higher threshold for money damages.
Addressing administrative enforcement the Court held that “the Department of Education could enforce the requirement administratively: Agencies generally have authority to promulgate and enforce requirements that effectuate the statute’s nondiscrimination mandate…We have never held, however, that the implied private right of action under Title IX allows recovery in damages for violation of those sorts of administrative requirements.”
The NPRM would eliminate the longstanding requirement for administrative enforcement, articulated by ED guidance at least as early as 1997, that educational programs remedy sex-based harms referred to as “sexual harassment” when they have constructive notice and instead not permit them to respond under Title IX absent the higher “actual knowledge” standard adopted by the Supreme Court cases involving money damages. Additionally, the NPRM would define “actual notice” significantly more narrowly than the Supreme Court.
As explained by ED first in 1997 and again in 2001’s “Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties” (“2001 guidance”) constructive notice means that “A school has notice if a responsible employee ‘knew, or in the exercise of reasonable care should have known,’ about the harassment.” As provided by the NPRM “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.”
The standard used by ED has long been when “a school that knows, or reasonably should know, about possible harassment” which includes sexual assault they “must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation.” The NPRM would not only require actual knowledge, but a formal written and signed report made to an authority with the power to remedy the situation.
Under the NPRM a school that knew or should have known about a hostile environment would be under no obligation to act absent a signed written complaint, and in fact would be unable to respond under Title IX. While the stated purpose is to align more closely with Supreme Court precedent “actual notice” has never been defined by the Supreme Court to include a written and signed complaint.
On and Off-Campus Misconduct
In the definition of “Formal complaint” the NPRM uses the terminology “conduct within its education program or activity” which absent additional context is likely to mislead and confuse recipients about the scope of their responsibility to address sex-discrimination under Title IX. Contrary to case law, which the NPRM purports to seek to better align with, this incorrectly suggests that educational programs would both not be obligated to respond to and would be precluded from responding under Title IX to conduct occurring outside of areas directly under their control, such as the private apartment of a student at an institution of higher education. Where off-campus harassment causes a hostile environment in the educational setting, it creates a nexus between off-campus misconduct and the educational program.
With respect to the most serious sex-based harms, such as rape, Courts have consistently held in after-the-fact claims that educational programs may be liable for damages for the hostile education environment that may exist within the program in which both the victim and their assailant participate. The following are among the most salient examples:
The court agrees that a reasonable jury could conclude that further encounters, of any sort, between a rape victim and her attacker could create an environment sufficiently hostile to deprive the victim of access to educational opportunities provided by a university. (Kelly v. Yale Univ., No. 01-cv-01591, 2003 WL 1563424 (D. Conn. Mar. 26, 2003))
Thus, even absent actual post-assault harassment…the fact that he and plaintiff attended school together could be found to constitute pervasive, severe, and objectively offensive harassment. (Doe ex rel. Doe v. Derby Bd. of Educ., 451 F. Supp. 2d 438, 444 (D. Conn. 2006))
Thus, the discriminatory harm can include the harm faced by student-victims who are rendered vulnerable to future harassment and either leave school or remain at school and endure an educational environment that constantly exposes them to a potential encounter with their harasser or assailant. (Doe 1 v. Baylor University, 240 F. Supp. 3d 646, 660 (W.D. Tex. 2017))
If educational programs are led to believe Title IX isn’t applicable to sex-based harms which may have occurred outside their program, but which nevertheless impact participants in it the victims of such harms would be left unprotected, and the educational programs may be subject to civil liability if they fail to remedy it.
The NPRM would for the first time adopt a regulatory definition of “sexual harassment” under Title IX. This is among the most problematic aspects of the NPRM as other forms of sex-based harms aren’t addressed, and the definition proposed is based primarily on one courts have specifically created in cases where money damages are involved which are quite different than administrative enforcement matters. Additionally, the proposed definition, when read in totality with the NPRM, would establish a higher standard for administrative enforcement than money damages potentially subjecting educational programs to needless civil liability if they met the regulatory standard but not that set by the Court.
The proposed definition is comprised of three components – “(1) An 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) 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; or (3) Sexual assault, as defined in 34 CFR 668.46(a).” Given our areas of expertise we focus our comments on the latter two elements.
Currently in ED’s administrative enforcement cases “Sexual harassment is unwelcome conduct of a sexual nature…Sexual violence is a form of sexual harassment prohibited by Title IX.” Title IX is invoked when “the conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.”
Adopting a narrower standard the NPRM would define “sexual harassment” in this context 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; or… Sexual assault”. While based on a Supreme Court opinion, this standard is actually even more limited because the Supreme Court held in 1999 that institutions may be liable for money damages when the conduct is “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”
The NPRM would require actual deprivation of access to the educational program or activity itself not merely the opportunities or benefits provided by it, a standard that need not even be met in a case for money damages. The Court interpretation is broader and includes deprivation of “educational opportunities or benefits” not the whole program. Harms short of driving a victim of discrimination out of school, such as forcing them out of a class or housing, which are common challenges may no longer trigger an obligation to respond under the proposed definition significantly disadvantaging victims. This conflict with precedent could also expose schools to civil liability if they meet the regulatory standard but not the one set by the Court.
Historically both courts and ED have held that conduct that also meets the definition of criminal sexual assault, including rape, is a sex-based harm under Title IX without carving out a separate definition. For example, the Court in Kelly v. Yale Univ., No. 01-cv-01591 (2003) held that “There is no question that a rape, as alleged by Kelly, constitutes severe and objectively offensive sexual harassment under the standard set forth in Davis. Soper v. Hoben, 195 F.3d 845, 855 (6th Cir. 1999) (assertion that victim was raped, sexually abused and harassed ‘obviously qualifies’ as severe, pervasive, and objectively offensive sexual harassment).” Accordingly, a separate definition is unnecessary, and application of the criminal law standards found in 34 CFR 668.46(a) are inappropriate in a civil-rights context.
In assessing an educational program’s response ED currently uses a “reasonableness” standard to assess “schools’ responsibility to take immediate and effective steps to end sexual harassment and sexual violence.” The NPRM would adopt a “deliberate indifference” standard currently used in cases only where money damages are at issue. This means that the response, or lack thereof, is “clearly unreasonable in light of the known circumstances.” As discussed above the Court clearly differentiated the standards for money damages, and set a much higher bar in such cases than is appropriate for administrative enforcement.
The Proposed Grievance Procedures Exceed the Secretary’s Rulemaking Authority
The NPRM would establish, under the new 34 CFR § 106.45, a complex bureaucratic process exclusively for responding to a “formal complaint” of “sexual harassment”. We do not believe that this type of one-size fits all approach is appropriate for the myriad types of educational programs Title IX applies to or that the Secretary has adequately justified any need for this prescriptive process under rulemaking authority. Here the Secretary has apparently substituted their judgement in place of the lawmaking authority of the legislative branch, and the interpretive authority of the judicial branch.
Certainly proceedings under Title IX should be fair to all involved, including the complainant and respondent. The unique “grievance procedures” for “sexual harassment”, however, are far more complex than is needed to accomplish this, and in fact seem geared to favor the respondent over the complainant. This is at odds with fundamental fairness and something that the authority for can not be derived from Title IX, a statute designed to protect victims of sex-discrimination.
The NPRM, for example, would require that “An equitable resolution for a complainant must include remedies where a finding of responsibility for sexual harassment has been made against the respondent; such remedies must be designed to restore or preserve access to the recipient’s education program or activity. An equitable resolution for a respondent must include due process protections before any disciplinary sanctions are imposed”. This statement is framed not in the context of a victim of sex-discrimination, but rather expressly speaks in terms of a finding “against the respondent” and requires “due process” for the respondent without any corresponding protections for the complainant.
The use of the term “due process” in this context is also problematic for two other reasons. First, the nature of “due process” in these types of proceedings is currently a rapidly evolving area of the law. Second, Title IX applies to both public and private educational programs that receive federal funding, and “due process” is not applicable to private institutions.
The NPRM prematurely purports to decide whether particular actions violate the Constitution or federal law on an issue that the Supreme Court has never squarely addressed: whether there is a protected life, liberty, and/or property interest in continued enrollment in higher education. Furthermore, the requirements prematurely decide what is constitutionally required for an area of law that lower courts have differed on in opinion, thus, preventing the judicial branch from fully exploring this area. Finally, the proposed regulations rest on policy argument, rather than legal requirement.
The Supreme Court has not established a bright-line rule delineating what “due process” is required to protect students from erroneous depravations regarding their continued enrollment in higher education. In refraining to establish such a rule, the Court has frequently emphasized that “[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.”
Courts have held that, although there are some minimal “due process” requirements that need to be provided to students facing disciplinary sanctions, this policy is limited by careful restraint in judicial interposition in the operation of public education.Applying the factors articulated by the Supreme Court in determining the appropriate level of “due process” required for students accused of sex-discrimination will vary based upon the severity of the disciplinary consequences, the type of case and evidence available, and the resources that the educational program would be required to expend in providing procedural safeguards.
Because of the requirement of state action for Constitutional “due process” protection private educational programs are not required to provide respondents with the same protections that state educational programs are. Instead the “rights” of respondents in private educational programs are predominantly contractual, arising from institutional policies, handbooks, and other programming. For both private and public universities in particular, many of the new “due process” cases are a direct result of promising such process to students in contract.
We take note that ED, in conjunction with the U.S. Department of Justice, on July 3, 2018 announced the withdrawing of sub-regulatory guidance issued under Title IV of the Civil Rights Act of 1964 (Title IV), 42 U.S.C. §§ 2000c et seq., and Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. §§ 2000d et seq. on grounds similar to the concerns we raise about the NPRM:
The Departments have reviewed the documents and have concluded that they advocate policy preferences and positions beyond the requirements of the Constitution, Title IV, and Title VI. Moreover, the documents prematurely decide, or appear to decide, whether particular actions violate the Constitution or federal law. By suggesting to public schools, as well as recipients of federal funding, that they take action or refrain from taking action beyond plain legal requirements, the documents are inconsistent with governing principles for agency guidance documents.
These steps to narrow the scope of Title IX’s protections are counter to over 21 years of progress towards combatting sex-based harms across educational programs in the United States.At SAFE Campuses, LLC our team has over 100 years of combined experience combatting sex-based harms in education, and we stand with those institutions and colleagues at educational institutions who won’t back away from working to effectively prevent and respond to sex-based harms. Students and employees at institutions that don’t hold this ground, however, shouldn’t be afforded less protections. Because the NPRM would irresponsibly reverse more than 21 years of progress in combatting sex-based harms we oppose it.
Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 275 (1998).
U.S. Secretary of Education Betsy DeVos is proposing an unprecedented roll-back of Title IX guidelines that have helped to create the framework American schools have used to combat sex-based harms for over 20 years. The Title IX Notice of Proposed Rulemaking (NPRM), which was formally published last Thursday, would do far more than provide procedural safeguards for respondents as part of a much larger administration de-regulatory agenda.
If enacted the proposal would fundamentally alter how Title IX works. Of particular note it would create a substantially different process for sex-discrimination than those required to be used for other civil-rights protections like race and national origin which haven’t been the subject of this type of rulemaking process as we’ve previously written about.
While much work remains to be done, higher education has made significant progress in how it handles sex-based harms in campus communities over the last 27 years. Along with the Clery Act’s “Campus Sexual Assault Victims’ Bill of Rights” (now the Campus SaVE Act), Title IX has provided an essential framework for this progress especially since the Obama administration reminded schools of it through the widely known 2011 “Dear Colleague Letter” which was withdrawn in 2017.
Since formal guidance was first issued in 1997, and at least as early as 1994, the U.S. Department of Education’s Office for Civil Rights (OCR) administratively investigated reports that sex-based harms weren’t properly dealt with using standards lower than those required to prevail in a Title IX court case. This is because for the most part money damages aren’t at issue instead improved policies and procedures are. The Title IX NPRM would abandon these long used administrative standards and instead more closely align with stricter rules used in court cases narrowing the field of cases subject to Title IX protections significantly.
Formal Report Required
The standard used by OCR has been when “a school that knows, or reasonably should know, about possible harassment” which includes sexual assault they “must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation.” The Title IX NPRM would not only require actual knowledge, but a formal written and signed report made to an authority with the power to remedy the situation. Under the Title IX NPRM a school that knew or should have known about a hostile environment would be under no obligation to act absent a signed written complaint.
While the stated purpose is to align more closely with Supreme Court precedent, specifically Gebser v. Lago Vista Independent School District, 524 US 274 (1998), “actual notice” is not defined in that decision to include a written and signed complaint. Also, significantly in Gebser, the Court was addressing money damages, not remedial action.
Deliberate Indifference Standard
In assessing an institution’s response OCR currently uses a “reasonableness” standard to assess “schools’ responsibility to take immediate and effective steps to end sexual harassment and sexual violence.” The Title IX NPRM would adopt a “deliberate indifference” standard currently used in cases only where money damages are at issue. This means that the response, or lack thereof, is “clearly unreasonable in light of the known circumstances.” In practice this applies only to the most egregious cases, such as taking no steps whatsoever to respond.
In OCR’s administrative enforcement cases “Sexual harassment is unwelcome conduct of a sexual nature…Sexual violence is a form of sexual harassment prohibited by Title IX.” Title IX is invoked when “the conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.”
Adopting a narrower standard the Title IX NPRM would define “sexual harassment” in this context 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; or… Sexual assault”. While based on a Supreme Court opinion, this standard is actually even more limited because the Court held, in Davis v. Monroe County Board of Education, 526 US 629 (1999), that institutions may be liable when the conduct is “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”
The Title IX NPRM would require actual deprivation of access to the educational program or activity itself not merely the opportunities or benefits provided by it, a standard that need not even be met in a case for money damages. The Court interpretation is broader and includes deprivation of “educational opportunities or benefits” not the whole program. Harms short of driving a victim of discrimination out of school, such as forcing them out of a class or housing, which are common challenges may no longer trigger an obligation to respond. This conflict with precedent could also expose schools to civil liability if they meet the regulatory standard but not the one set by the Court.
Explanation of Changes
The DeVos proposal explains these changes saying “Based on its consideration of the text and purpose of Title IX, of the reasoning underlying the Court’s decisions in Gebser and Davis, and of the views of the stakeholders it has consulted, the Department now believes that the earlier guidance should be reconsidered.” There is no substantive analysis of any supposed problems with an approach that has been in place for over 21 years, and unlike the “due process” issues discussed for over a year there was no comparable public discussion of these matters in advance.
This proposal is far from taking effect, but the changes could be significant. The final regulations, which will be published sometime after the public comment period ends on January 28, 2019, may differ and any final rule is likely to be challenged in court.
These steps to narrow the scope of Title IX’s protections are counter to over 21 years of progress towards combatting sex-based harms across educational programs in the United States. They aren’t in any way necessary to address concerns about procedural safeguards afforded to any party in disciplinary proceedings, and only serve to allow the Department to contend the new regulations are a cost saving measure while enacting extensive new regulations that would otherwise be prohibited under the current administration’s de-regulatory rules.
Even the Title IX NPRM itself, however, acknowledges that many institutions of higher education (IHEs) won’t actually reverse course in these areas as they are optional as opposed to the mandated “due process” guidelines. “Among IHEs, we assume that, for a large subset of recipients, various pressures will result in retention of the status quo in every manner that is permitted under the proposed regulations,” it states. “These institutions are voluntarily assuming higher costs than the regulations require.”
At SAFE Campuses, LLC our team has over 100 years of combined experience combatting sex-based harms in education, and we stand with those institutions and colleagues at educational institutions who won’t back away from working to effectively prevent and respond to sex-based harms. Students at institutions that don’t hold this ground, however, shouldn’t be afforded less protections. Because the Title IX NPRM would irresponsibly reverse more than 21 years of progress in combatting sex-based harms we oppose it.
George H.W. Bush the 41st President of the United States who passed away on November 30th played an important role in the early years of the campus safety movement. He signed the original 1990 Campus Security Act (now the Jeanne Clery Act) and 1992’s Campus Sexual Assault Victims’ Bill of Rights into law, and issued the first National Campus Crime and Security Awareness Week proclamation in 1991.
Bush wasn’t originally a backer of these initiatives, but that quickly changed after he met Connie and Howard Clery, who were championing them after the 1986 on-campus murder of their daughter Jeanne, and their attorney Frank Carrington. Presidential historian Doug Wead who served as a Special Assistant to President Bush arranged an introduction and opportunity for them to share their story. “They blurted and he changed his position within days,” Wead wrote of the encounter in 2007.
When they next met, during a Rose Garden ceremony observing National Crime Victims’ Rights Week on April 25, 1990, Bush offered the Clerys high praise for their work and presented them with an award for “outstanding contributions in assisting victims of crime”. “It’s good to see Howard and Connie Clery again,” Bush said. “Howard and Connie embody the power of voluntarism…, and the power of a just cause”.
Issuing a proclamation on August 22, 1991 recognizing “National Campus Crime and Security Awareness Week, 1991” Bush discussed the importance of the Campus Security Act. “Last year, the Congress passed the ‘Student Right-to-Know and Campus Security Act,’ which requires colleges and universities to inform students and employees about campus crime statistics and campus security policies,” Bush said. “By working together to achieve the goals set forth in this legislation, we will not only promote the safety of those who study and work at our Nation’s institutions of higher learning but also provide our students with a valuable lesson in civic responsibility.”
The Clerys’ non-profit Security On Campus, Inc. (now the Clery Center) quickly recognized the significant challenge of campus sexual violence, and working with their Counsel Frank Carrington they proposed the first national legislation, as an amendment to the Campus Security Act, to address it. President Bush signed this legislation the Campus Sexual Assault Victims’ Bill of Rights into law as a part of the Higher Education Amendments of 1992 (Public Law 102-325, section 486[c]) in July of 1992.
President Bush’s early support of the campus safety movement was critical in giving these efforts the momentum they needed to move forward. Safer campuses and the ongoing process of working to increase campus safety are an important part of his legacy worth remembering.
The Title IX Notice of Proposed Rulemaking (NPRM) published earlier this week is fundamentally flawed because it would treat sex-discrimination civil-rights protections unequally from other civil-rights enforced by the U.S. Department of Education’s Office for Civil Rights (OCR). Notably OCR also enforces similar “race, color, and national origin” protections, under Title VI of the Civil Rights Act of 1964, but is not proposing to create complex new rules that would fundamentally weaken those protections.
If enacted the Title IX regulations would set-up sex-discrimination, including its most extreme form sexual violence, as a second-class civil-rights issue. Other forms of civil-rights violations, including race-based hate-crimes, would, for example, not be subject to a conduct proceeding where “cross-examination” by a representative of the accused is required. This would, however, be required in any proceeding involving sexual assault. Such disparity is inherently unequal.
At SAFE Campuses, LLC we work to ensure that everyone can learn, work, and enjoy the benefits of educational programs in safety. Because the inherently discriminatory nature of the Title IX NPRM is directly at odds with this core value we oppose it.
After more than a year in preparation, the formal proposal by Education Secretary Betsy DeVos to bring sweeping changes to Title IX sex-discrimination regulations is set to be published in the Federal Register tomorrow morning, Thursday, November 29, 2018. The public will have 60 days to offer input on the Notice of Proposed Rulemaking (NPRM) through comments filed with the U.S. Department of Education (ED).
Numerous stakeholder organizations representing a wide array of views are expected to offer detailed comments addressing legal and policy issues about the civil-rights protections afforded by Title IX, but individual comments about how the proposed changes will directly impact students, employees, and others are also vital. Offering these comments is relatively easy.
Comments are accepted as a text entry or uploaded document, either Microsoft Word or Adobe PDF (text searchable preferred) and should include the Docket ID. Please note that all submitted comments are made publicly available on the website, so commenters shouldn’t include anything they don’t want made public.
The SAFE Campuses, LLC team has reviewed the “unpublished” version of the NPRM, will review the formally published version, and will be posting additional information during the comment period. Additionally, due to the comment period falling during final exams and the winter break several advocacy organizations are asking that it be extended to 120 days. We support extending the comment period and will post an update if it is extended.
In the most significant Jeanne Clery Act enforcement action in several years, the U.S. Department of Education last week notified the University of Montana that they intend to fine them nearly $1 million for violations of the campus crime reporting law occurring between 2012 and 2015. This would be the second largest fine after the $2.4 million fine paid by Penn State in 2016. It is also the first set of fines issued for violations of the 2013 Campus SaVE Act/VAWA amendments to the Act.
While not the final word as Montana has announced they will appeal, the fine notice offers important indications about how the Department will be handling Clery Act fines in the future. The action suggests that fines will be larger and issued faster going forward.
The Department is now issuing significantly larger fines of up to $55,907 per violation as a result of indexing for inflation under the Inflation Adjustment Act. Clery Act fines were originally $25,000 and remained there from 1990 to 2002. The law, however, now calls for annual increases. Currently violations that occurred prior to November 3, 2015 are subject to $35,000 fines while those that occurred on or after that date are subject to the higher $55,907 penalty, which was set in January.
Consistent with administrative decisions issued by Education Secretary Arne Duncan in 2012, the Department is imposing the maximum penalty for each individual incident of violent crime omitted from reporting, while imposing lesser amounts for not reporting non-violent crimes. For example, 2 omitted incidents of stalking in 2015 yielded a total $111,814 (2 X $55,907) fine compared with $8,500 for 1 excluded burglary.
The annual indexing for inflation of fines, and the imposition of fines for each crime that goes unreported with the maximum imposed for any violent crime left out of reporting are three major factors indicating that Clery Act fines will likely be larger going forward.
Also, following a ruling by an administrative law judge in 2016 that interpreted a longstanding law limiting the imposition of federal civil penalties to 5 years after the violation, the Department is now also subject to this “statute of limitations”. Following this decision, for example, this enforcement action initiated in September of 2018 could only go back as far as the 2013 annual security report, which was due on October 1st of that year.
The requirement that the Department be limited to 5 years to impose fines will require that they move faster than they have the past, with some investigations taking as long as ten years and imposing fines as late as two years after investigations have been resolved. Institutions could still be found in violation, and required to correct past errors, but after 5 years they wouldn’t face fines.
The U.S. Sixth Circuit Court of Appeals handed down an opinion in Doe v. Baum, et al. on Friday, September 7, 2018 that has the potential to substantially change college and university conduct proceedings. A three-judge panel held in a University of Michigan sexual assault case that “a public 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.”
No previous Court, including the U.S. Supreme Court, has ever held that “due process” requires a live hearing with this type of personal cross-examination, or so specifically mandated how a campus conduct proceeding must be administered. The Sixth Circuit has jurisdiction over the states of Kentucky, Michigan, Ohio and Tennessee, but this ruling has potential implications across the United States as the first Court to so hold.
Since the U.S. Fifth Circuit Court of Appeals held in 1961’s landmark case Dixon v. Alabama State Board of Education, 294 F. 2d 150, that some level of “due process” was required at a “tax-supported college” in cases of “suspensions or expulsion of a student” they have been afforded wide latitude in structuring proceedings. That Court notably held “This is not to imply that a full-dress judicial hearing, with the right to cross-examine witnesses, is required.” The U.S. Supreme Court has never directly addressed this type of case in higher education.
One of the three Judges in the Doe case, Ronald Lee Gilman, addressed this in a partial dissent writing that “the majority has traveled ‘a bridge too far’ in mandating that ‘if the university does not want the accused to cross examine the accuser under any scenario, then it must allow a representative to do so.’” Prior rulings have addressed various means by which an accused student can address the credibility of witnesses through other means such as relaying questions through a hearing officer, a possibility this Court completely sidestepped.
The Court does not substantially address the potential negative impact that having an alleged rapist interrogating their accuser may have on the process other than to hold that if an institution “is worried about the accused confronting the accuser, it could consider other procedures such as a witness screen. But if the university does not want the accused to cross-examine the accuser under any scenario, then it must allow a representative to do so.”
While the University of Michigan and other institutions are considering the implications of this ruling and options to respond, either of the two options presented by the Court could fundamentally change the nature of campus conduct proceedings involving the possibility of suspension or expulsion as they have existed for nearly 60 years. Following the Court’s holding would mean either permitting an alleged rapist to personally interrogate their accuser, potentially subjecting them to emotional intimidation (and potentially vice-versa), or requiring advocates, possibly attorneys as the Court does not further address who they should be, to be active participants in the proceedings, at least for the purposes of cross-examining witnesses, which would fundamentally alter the degree of complexity of these proceedings.
Following several high-profile campus sexual assault incidents, Utah’s legislature recently advanced a bill, HB 254, out of their House Judiciary Committee that would provide for colleges and universities to report sexual assaults to “off-campus law enforcement” over the objections of adult victims if there is an articulable threat. While this may seem like a common-sense solution to some, it is a horrible idea that will chill reporting, and decrease the chances of threats being reported to the police and survivors getting the help they need. It may also be at odds with federal law on the subject, and certainly would be at odds with the spirit of that law.
While there is limited data on this subject, as only two states – California and Virginia – have enacted somewhat similar laws in just the last few years, my opinion is one informed by having worked directly with campus sexual assault survivors since 1991. For them the main issue is the loss of control. As a survivor they lost control of their own bodies when they were assaulted. Taking away their control again is typically among their greatest fears, and precisely what such a policy would accomplish. Even the mere possibility that they may lose control of the report is enough to lead to this fear, so even a limited mandatory reporting requirement presents a problem.
The data that does exist bolsters this view. “Know Your IX and the National Alliance to End Sexual Violence (NAESV) conducted an online survey in March 2015 to gauge survivors’ beliefs about the criminal justice system, victim autonomy, and reporting. Almost 90% of survivors said that campus victims should retain the right to choose whether and to whom to report. Eighty-eight percent (88%) said that, were campuses required to turn rape reports over to the police (without survivors’ consent), they believe fewer victims would report to anyone at all. Seventy-two percent (72%) were concerned that such requirements would lead to survivors being ‘forced to participate in the criminal justice system / go to trial.’”
Federal student privacy guidelines hold that nothing in the law “prohibits an educational agency or institution from contacting its law enforcement unit, orally or in writing, for the purpose of asking that unit to investigate a possible violation of, or to enforce, any local, State, or Federal law.” Reporting is generally permitted only to the institution’s police department, not off-campus police. The only exception is that an “institution may disclose personally identifiable information from an education record to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.” (Emphasis added)
Additionally, the federal Jeanne Clery Act requires that colleges and universities afford adult sexual violence survivors control over whether or not their incident is reported to police. Specifically, institutions must afford them options to “Be assisted by campus authorities in notifying law enforcement authorities if the victim so chooses” or to “Decline to notify such authorities”. This was enacted recognizing that supporting survivors in going to law enforcement is likely to be more effective than forcing them to.
Mandatory reporting to off-campus police isn’t the solution to campus sexual violence. A robust system for supporting survivors, and a thorough disciplinary process that affords safeguards for both accuser and accused alike is the proper course of action. Instead of potentially re-victimizing survivors states should support their colleges and universities in taking these steps.