BARCC is submitting public comment to U.S. Secretary of Education Betsy DeVos detailing the reasons why the Office of Civil Rights at the Department of Education (OCR-DOE) should not adopt a proposed Title IX rule related to responding, investigating and adjudicating reports of sexual assault and misconduct in schools that receive federal funding. (Title IX is the federal civil rights law that prohibits discrimination on the basis of sex in federally funded education programs and activities.)
As we stated in our comment, BARCC believes the proposed rule “reinforces myths about sexual violence, favors offenders, and undermines procedural justice for survivors.” That is unfortunate given the epidemic of campus sexual assault and harassment and its effect on survivors, who may become “depressed and anxious, fall behind in their school work, and even drop out of school.” We can and must do better by survivors if we are to change campus climate around sexual assault.
The following excerpt from our comment on how the proposed rule favors offenders at the expense of survivors is the second in a series of five blog posts that break down our reasons for opposing the rule. Read the first post.
The proposed new rule favors students reported to have committed sexual harassment in several significant ways. First, it gives schools the option of choosing between two standards of proof when deciding Title IX school grievance hearings: preponderance of the evidence or clear and convincing evidence. Under preponderance of the evidence, the person making the allegation of harm is required to show that there is a greater than 50 percent chance that the claim is true. Deciding grievance hearings based on clear and convincing evidence requires the student who is making the report to prove that the allegation is substantially more likely than not to be true.
Standard of evidence is a matter of procedural due process. It correlates to the potential penalties or sanctions that could be imposed. The maximum penalty that an educational institution can impose is expulsion from school. There is no loss of liberty or professional licensure or status. In supporting a higher standard of proof for deciding Title IX violations, the proposed new rule cites the “heightened stigma” experienced by a student found in violation of a Title IX offense. “Stigma” is not a penalty imposed by the school and should not be a factor in determining the proper standard of evidence.
Previous Title IX Guidance set preponderance of the evidence as the evidentiary standard in deciding Title IX grievance hearings, which is the standard used by federal courts when ruling on civil rights cases. Discrimination based on sex in educational institutions constitutes a civil rights violation, so the preponderance of the evidence standard is the appropriate one for Title IX grievance hearings. Additionally, the proposed regulations would permit schools to set a higher standard of evidence for Title IX violations and a lower one for other violations of a school’s code of conduct, which amounts to a system of unequal treatment. In this system, students who experience discrimination based on sex can be treated differently during a grievance hearing than students who make complaints based on other issues. The proposed regulation is itself a form of discrimination because it creates an unequal system of adjudication.
The role of the Department of Education with respect to Title IX is to ensure that schools act to protect students from discrimination. The application of a higher standard of evidence for violations of Title IX is not supportable under the law or in the interest of protecting the rights of students to be free from sex discrimination while attending school, and it favors those reported to have engaged in sex discrimination.
Second, the proposed new rule will require facts to be decided during a live hearing during which students may cross examine each other through an advocate of their choosing, such as a faculty advisor, parent, or attorney. The potential for a live hearing to serve as a major deterrent to reporting as well re-traumatizing a survivor during these adversarial questioning sessions is high, and the effectiveness of cross examination in determining facts in such situations is in doubt. That is why most courts that have ruled on due process requirements in such cases have found that determining facts via written questions and answers is sufficient.
Third, the proposed new rules establish different grounds for appeal for students involved in a Title IX investigation. A student found guilty of sexual harassment may appeal the sanction issued by the school. A student found to have been sexually harassed can only appeal the remedies offered by the school to restore access to education. This means that if a school punishes an offender with an inordinately light sanction, the student who was harmed cannot appeal the sanction.
If you think that students reporting a Title IX violation deserve the same rights as those reported to have offended, then please join us in urging the U.S. Department of Education to reconsider its proposed new regulations for Title IX by submitting a public comment by Wednesday, January 30, at 11:59 p.m.
Wondering how to make your comment effective? Here are a few tips:
- Use your own words for the most impact! Your comment is more likely to be taken into consideration if it’s not a duplicate message from a template.
- Incorporate personal stories to support your arguments.
- If you have a particular perspective or expertise, whether as a survivor, an advocate, a lawyer, etc., make note of it!
- Include suggested solutions to your concerns. We don’t just want to say what’s wrong; we also want to help guide how the problems can be fixed.
Read part three in this series.
Updated January 24, 2019, to reflect new public comment deadline.