January 23, 2019
Submitted via www.regulations.gov
Kenneth L. Marcus
Assistant Secretary for Civil Rights
Department of Education
400 Maryland Avenue SW
Washington, DC 20202
Re: Docket ID No. ED-2018-OCR-0064, RIN 1870-AA14, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance
Dear Secretary Marcus,
I am writing on behalf of Day One, in response to the U.S. Department of Education’s Notice of Proposed Rulemaking to express our strong opposition to the proposed rules relating to sexual harassment as published in the Federal Register on November 29, 2018.
As the Executive Director of Day One, with over 30 years of experience advocating and fighting for the rights of survivors, I believe my comments here are substantive and deserve serious consideration. Day One is the only agency in Rhode Island organized specifically to deal with issues of sexual assault as a community concern. Day One’s mission is to reduce the prevalence of sexual abuse and violence and to support and advocate for those affected by it. We provide treatment, intervention, education, advocacy, and prevention services to Rhode Islanders of all ages—from preschool children to elder adults. Additionally, we advocate for public policy initiatives and systemic changes that positively impact how Rhode Island families handle sexual abuse cases.
In reading the proposed guidelines, we are concerned these changes may further traumatize or re-traumatize victims of abuse. There are a number of sections of the proposed changes that we whole-heartedly disagree with, the most pressing objections include:
Proposed Title IX changes of concern:
- Rule summary (§§ 106.30, 106.45(b)(3)): Schools “must dismiss” a formal complaint if it alleges conduct that is not (i) an employee requesting sexual favors in return for good grades or other educational benefits; (ii) “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the [school’s] education program or activity”; or (iii) “sexual assault.”
The changing of the definition of 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,” is unacceptable. This would mean that students would be forced to endure repeated and escalated abuse before they would be able to ask their schools for help. Not only does this proposal decrease reporting opportunities for students facing harassment, it reinforces dangerous myths and narratives that a sexual assault or incident of harassment is not “legitimate” or not bad enough. We need to stop harassing behavior before it escalates and turns into abuse and assault. If a student is turned away by their school after reporting sexual harassment, they are unlikely to report a second time when the harassment escalates. And even if a school would be legally required to intervene later on, it may already be too late.
- Rule summary (§§ 106.30, 106.45(b)(3)):Schools “must dismiss” a formal complaint if the alleged conduct “did not occur within the [school’s] program or activity.”
This rule would have grave consequences to students. Data shows that 87% of college students live off-campus. It is logical that sexual assaults between students take place in students’ homes and rooms that may be off-campus, or even when studying abroad. With these proposed changes, students would not be protected while in their own homes.
This section also presents the issue of digital harassment. Students should be protected from online sexual harassment from other students while not on school grounds. Experiencing sexual harassment from students outside of a school program is a reality for many students, and can have lasting consequences.
- Rule summary (§§ 106.44(a), 106.30):Schools would not be required to address sexual harassment unlessthere was “actual knowledge” of the harassment by (i) a Title IX coordinator; (ii) a K-12 teacher (but only for student-on-student harassment, notemployee-on-student harassment); or (iii) an official who has “the authority to institute corrective measures.”
In particular, we are concerned about how the proposed regulations narrow which school employees are required to act on reports of sexual harassment and misconduct. This would become very confusing for victims and could result in even less students coming forward to report. For example, if a student told an adult school employee they trust—such as a guidance counselor or athletics coach—that they had been sexually assaulted by another student, or if they told a teacher that they had been sexually assaulted by a school employee, their school would have no obligation to help them. In contrast, current Title IX guidance requires schools to respond to sexual harassment if almost any school employee either knows about it or should reasonably have known about it. As it is now, only about 30% of victims report sexual assaults. If you limit who victims need to report to, it could cause even fewer reports, especially if a student reports to someone, and they are not the exact person the report will be ignored. If survivors see that other students’ reports were not acted upon by their schools, students may be less likely to report future incidents of sexual violence. Lowered reporting means that students who are abusers will carry on without their misconduct being addressed, making schools less safe for all students.
- Rule summary (§ 106.45(b)(3)(vi)-(vii)):In K-12 schools, the school must ask both parties questions, either by (i) conducting a “live hearing”; or (ii) having the students “submit written questions” for the other side to answer. But in higher education, the school must conduct a “live hearing,” and parties and witnesses must be available for cross-examination by the other party’s “advisor of choice.” If requested, parties must be allowed to sit in “separate rooms” connected by “technology.” If a student “does not submit to cross-examination,” the school “must not rely on any statement of that [student] in reaching a determination.”
Increased levels of proof and cross-examination creates, not only additional barriers to reporting, but reinforces existing narratives survivors hold: survivors often don’t report their sexual assaults because of fear of being disbelieved or their assault not taken seriously. Sexual violence is a life-altering trauma. Cross-examination can be re-traumatizing to survivors. It is often rooted in gender stereotypes that contribute to victim blaming. Instead, we should do all we can to lessen the re-traumatization of survivors through the reporting and adjudication process.
For the reasons detailed above and others, we believe the U.S. Department of Education guidelines would do further harm to survivors and should be removed. These guidelines would further isolate survivors and protect those who abuse them. Our recommendation is that these proposed guidelines will be removed before it is too late. We as a country have fought hard to progress and get to where we are now, and there is still so much more work to be done. Going forward with these proposed guidelines would result in significant dismantling of decades of progress under Title IX.
Thank you for the opportunity to submit comments on the Notice of Proposed Rulemaking. Please do not hesitate to contact me at (401) 421-4100 x105 or firstname.lastname@example.org provide further information.
Executive Director, Day One