Response to the Department of Education’S proposed Title IX Rule changes
January 30, 2019
The Honorable Betsy DeVos
Secretary of Education
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202
Dear Secretary DeVos:
Hamilton College is a private, residential liberal arts college enrolling 1,860 students in Clinton, N.Y. We write to respond to the proposed Rule on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance. Hamilton applauds the Department of Education’s desire to ensure protections for all parties in Title IX proceedings, but we are contacting you to raise five concerns.
1. The Proposed Rule Inappropriately Limits the Types of Conduct and Scope of Conduct that May be Considered Under a Title IX Policy
The proposed Rule would exclude significant types of conduct that may be addressed under current Title IX policies and procedures, and these changes, if enacted, will substantially interfere with our community members’ ability to participate equally in the College’s programs and activities, and/or create significant administrative burdens. We are particularly concerned about the following provisions:
- Section 106.44 of the proposed rule establishes the standard for an institution’s response under Title IX, providing that “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.”
- Section 106.44(e) defines “sexual harassment” subject to a Title IX Process as “(i) 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; (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 a recipient’s education program or activity; or (iii) sexual assault, as defined in 34 CFR 886.46(a).”
- Section 106.45(b)(3) further provides that “[i]f the conduct alleged by the complainant would not constitute sexual harassment as defined in Section 106.44(e) even if proved or did not occur within the recipient’s program or activity, the recipient must dismiss the formal complaint with regard to that conduct.” [Emphasis added.]
First, Section 106.44 limits conduct considered under Title IX to conduct that occurs in “an education program or activity.” Our campus is residential, but our students are involved in the local community through informal programs. Our students also interact with local community members and fellow College community members off campus. Under the proposed regulation, an incident of potential sexual misconduct that occurs at a party on campus could be addressed under the Title IX Policy, but an incident that occurs at a practically identical party in downtown Clinton, N.Y., less than a mile from campus, could not be addressed under the Title IX Policy. An assault involving two students, which occurs off campus, would affect a potential complainant’s equal access to the College’s educational programs and activities to the same degree as an assault that occurs on campus, given that the potential interaction between complainants and respondents during the College’s educational program is equal in both cases. Further, parties to a case of alleged on-campus misconduct would participate in a process involving all of the procedural requirements described in the proposed Rule, while parties to a case of alleged off-campus misconduct could encounter a significantly different process. This provision will result in an illogical disparity in processes available to our students depending, in part by chance, on where the incident occurs.
Second, Section 106.44 limits conduct considered under Title IX to conduct that occurs “against a person in the United States.” Our College educational program includes three programs overseas — in France, Spain, and China. A number of our students and faculty members participate in these programs. Our community members studying and working abroad should have access to the same resources and protections as our community members studying and working in the United States. This provision of the proposed Rule will prevent the College from providing equal protections and rights to our community members in different programs under the Title IX Policy.
The definition of sexual harassment in Section 106.44(e) would limit the College to only considering conduct that is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to a recipient’s education program or activity.” This provision prohibits colleges from addressing conduct that creates a discriminatory environment that limits an individual’s experience of educational programs if the conduct falls short of entirely depriving the individual of educational access.
Finally, the proposed Rule would prohibit institutions from using Title IX processes to address a variety of other conduct that federal law recognizes as having similar implications. Most notably, the proposed Rule would preclude institutions from using Title IX processes to adjudicate cases of alleged dating violence, domestic violence and/or stalking not otherwise constituting “sexual harassment” within the meaning of Section 106.44(e). This seems illogical given that the Violence Against Women Act amendments to the Clery Act (“VAWA”) mandate similar processes for such cases as those used to adjudicate cases of sexual assault.
In the comments to the proposed Rule, the Department suggests that the College may still address conduct that falls outside of the narrow jurisdiction set forth in the proposed Rule through a different process. However, in light of the obligation, imposed by proposed Section 106.45(b)(3), to “dismiss” from its Title IX process a complaint alleging conduct falling outside that jurisdiction, the College will need to either adjudicate such conduct under a generic disciplinary process or create yet a third disciplinary process designed to replicate many if not all of the aspects of the Title IX process in order to comply with VAWA and/or avoid providing community members vastly different rights based solely on, for example, where an incident occurs. This will create confusion between the applicable policies and cause undue burden by forcing the College to create new mechanisms to address conduct that is currently addressed appropriately under the Title IX process. If the Department retains the significantly narrowed definitions described above, we submit that institutions should be permitted to use their discretion to make the Department’s required Title IX process available to adjudicate cases falling outside of those definitions.
2. The Provision Mandating an Investigation is Unduly Burdensome
Under Section 106.44(b)(2), the College will be required to conduct a formal investigation when there are multiple reports of sexual harassment against one potential respondent. This provision is overly broad because it does not take into account the severity and nature of the alleged conduct, potentially requiring the College to proceed against the wishes of a complainant and/or in circumstances where a respondent does not pose a danger to the community. We suggest allowing institutions to evaluate the response on a case-by-case basis, depending on the severity of the incident(s) and information available in the reports. Our current Policy allows the College to pursue an investigation if there is information that suggests a continuing danger or threat, even if a complainant does not request a process.
3. The Requirements for a Live Hearing Create Undue Burdens on the College and Will Not Increase Due Process Protections
Under Section 106.45(b)(3)(vii) of the proposed Rule, the College will be required to conduct live hearings to adjudicate each case not addressed by informal resolution. At the hearings, the parties must submit to cross examination and must be represented by an advisor. Each advisor will conduct the cross examination of the other party. If a party does not have an advisor, the College will have to provide an advisor to represent the party.
Under our current Policy, each formal investigation is conducted by a team of experienced and trained investigators. Each party has the opportunity to identify witnesses to be interviewed, propose questions to be posed by the investigation team, and submit physical and electronic evidence to be considered in the investigation. The investigators interview the parties and witnesses and may conduct follow-up interviews to address significant inconsistences in the interviews. The College provides each party the opportunity to review all of the evidence gathered in a formal investigation that will be presented to decision makers, including statements made by each party and witness. The parties have a full and fair opportunity to respond to the information and to point out any inconsistencies in the statements and physical or electronic evidence. A review panel, comprised of three neutral community members trained to adjudicate allegations of sexual misconduct, meets to determine whether the respondent has violated the Policy. The parties have the opportunity to meet with and address the panel prior to deliberations.
Our process is transparent and provides fundamental fairness to the parties. Supplementing our process with a live hearing in which each party is subject to cross examination is unnecessary and will greatly favor a party with the financial resources to hire an attorney. In order to provide an equal process for all parties in a formal investigation, are institutions expected to furnish an attorney-advisor for any party who is unable to hire counsel themselves? If so, institutions will incur a significant financial burden, and many institutions located in rural areas, such as our College, will not have access to the legal resources available in a larger metropolitan area.
4. The Provisions Regarding Parties’ Review of the Investigation Materials are Unduly Burdensome
Section 106.45(b)(3)(viii) provides that both parties have the opportunity to “review any evidence obtained as a part of the investigation that is directly related to the allegations raised in a formal complaint, including evidence upon which the recipient does not intend to rely in reaching a determination regarding responsibility...”
In the course of a formal investigation, parties and witnesses may share information that is private or embarrassing and completely irrelevant to the investigation. Our College Policy provides that the Title IX Coordinator and the Chair of the Harassment and Sexual Misconduct Board (HSMB), who are not investigators or decision makers, may redact information that is “irrelevant, more prejudicial to a party or witness than probative, an unwarranted invasion of an individual’s privacy, otherwise violative of this policy, or immaterial.” The Title IX Coordinator and the HSMB Chair apply this standard to information provided by and about both parties. The provision that a party may review “any” evidence gathered in the investigation will lead to an unnecessary violation of privacy. Instead, we recommend that all parties have the right to review any evidence that will be considered by decision makers, as is the current policy at Hamilton College. Given that excluded evidence will not be used as a basis for a determination, this will not prejudice either party.
5. Prohibiting Restrictions on Parties Discussing Allegations in an Investigation is Unnecessary and Potentially Damaging to Both Parties
Under Section 106.45(b)(3) (iii), the College cannot “restrict the ability of either party to discuss allegations under investigation or to gather and present relevant evidence.” In practice, the College asks parties and witnesses to treat the information in an investigation as “private.” We do not prohibit anyone from identifying relevant witnesses and evidence, or from seeking and obtaining support throughout the investigation process. This provision in the proposed rule, as it is currently written, is overly broad and would prohibit the College from establishing a reasonable standard for communications about a pending investigation to protect privacy and the integrity of the process. Unrestricted discussion of an ongoing investigation by parties and witnesses could also hinder the parties’ access to our education program during the course of the investigation and for the remainder of their educational experience.
Thank you for the opportunity to comment on the proposed Rule on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance. We believe the five concerns raised above address matters that will have a detrimental effect on the protections the Department of Education is seeking to instill.
David Wippman, President
Support for Students Experiencing Anxiety and Depression
April 1, 2018
Dear Members of the Hamilton Community,
Many in our community were present last Monday evening or read the minutes from the Student Assembly meeting when Dean of Students Terry Martinez reiterated the College’s commitment to increase student wellness and provide specific support for students experiencing anxiety and depression. Dean Martinez also outlined some of the ways we continue to improve upon those services and programs as new ideas and practices become available.
Among the actions taken by the College in the past year are the following: an external review of our processes and structures for supporting students of concern by a team from Duke University; the move to a case-management model to assist students of concern and the hiring of an associate dean of students for student support services, as recommended by the external review; additional work by the College to implement recommendations from the JED Foundation, an organization devoted to suicide prevention; the institution of gatekeeper training for faculty and staff and a student-implemented model for the same to help community members recognize and respond to students in distress and refer them to mental health resources; an expansion of the physical space in the new counseling center, with additional programming and personnel, including the decision to conduct a search for a full-time psychiatrist; and adoption of the Community of Care Initiative. Ongoing discussions around student mental health may lead to additional action.
These initiatives are part of a continuing evolution, and we have also welcomed the input of students and parents, such as Mr. and Mrs. Burton, the parents of Graham. Graham’s death was a terrible tragedy for his family, friends, and our community, and the Burton family continues to have our deepest sympathy for their loss.
We continue doing all that we can to ensure the safety and welfare of our students. There are many resources available to you or any member of our community in need of support. The most immediate ways to seek assistance are to contact the Counseling Center (315-859-4340), the Dean of Students Office (315-859-4020), or Campus Safety (315-859-4141).
Deferred Action for Childhood Arrivals (DACA)
September 5, 2017
To the Hamilton Community,
The Trump administration today announced that it would begin to rescind the Deferred Action for Childhood Arrivals (DACA) program, with a six-month window during which Congress may act to continue the program. DACA protects nearly 800,000 “Dreamers” — undocumented young people who entered the country before age 16. The DACA program enabled many promising and talented young people to attend college and begin careers. Despite the assurances they received, their future may now be in doubt.
Notwithstanding the shift in executive branch policy, Hamilton is not changing its admission policy; we will continue to welcome applications from all qualified students, including undocumented students, with the goal of building the strongest possible academic community. We will likewise continue to do all we can to support all of our students once they enroll. As I said in a related message last December, every one of our students enriches our community in unique ways, but all should be able to enjoy equally the full benefits of a Hamilton education.
With the ultimate future of DACA shifting to Congress, I have been in touch with colleagues in the New York Six, and we will jointly approach the New York congressional delegation to urge support for legislation that would codify the principles of DACA. I believe those principles benefit our campuses, our communities, and our country. I am also in touch with colleagues in NESCAC and elsewhere about other ways to pursue this issue.
In the meantime, campus and other resources are available for members of our community with questions about changes in immigration law and policy. View a list of resources on our website.
Hamilton’s Tradition of Open and Respectful Dialogue
August 24, 2017
Dear Members of the Hamilton Community,
Welcome to our new students, faculty and staff, and welcome back to those of you who are returning to College Hill for your second, third and fourth years or, in the case of some faculty and staff, your second, third or fourth decades. With the exception of move-in day last Tuesday, when an enthusiastic band of colorfully costumed Continentals greeted our new students by dancing, cheering and holding up cardboard signs, the campus was quiet this summer.
Unfortunately, the same cannot be said for much of the rest of the world. News from Washington, Charlottesville, Venezuela, North Korea, Syria, Afghanistan and elsewhere affects us all. In keeping with Hamilton’s tradition of open and respectful dialogue, we will have multiple opportunities this year to consider the implications and significance of the kinds of events that have dominated the news recently and, unfortunately, likely will recur in the days ahead. A variety of programs will address these issues, including lectures, panel discussions and community conversations.
In particular, I hope you will attend a new program, Common Ground, which will bring together on October 18 two leading political strategists with very different perspectives for a moderated conversation on a variety of “hot button” issues. Our speakers for that program, David Axelrod and Karl Rove, will model for our audience one of the goals of a liberal education: engaging respectfully with views and perspectives that are different from one’s own.
As I said yesterday in my Convocation remarks, part of a student’s education here lies precisely in exploring new ideas and new ways of thinking and in getting to know people with different identities, backgrounds, and perspectives, even when doing so proves uncomfortable.
Best wishes for a wonderful, enlightening and sometimes uncomfortable academic year.
Joint Statement from Colgate University and Hamilton College
February 28, 2017
Dear Members of the Hamilton College and Colgate University Communities,
As you know, recent changes to federal immigration law and policy have caused concern on both of our campuses, and across the nation. Although federal courts have temporarily blocked implementation of President Trump's January 27th executive order, new changes to federal law are under consideration, in both the executive branch and the Congress.
While we cannot know the form these changes will take, we are committed to maintaining open and welcoming campus environments and intent on providing as much support to members of our communities as we can. We also believe that joining our efforts will better support our students, faculty, and staff.
With this in mind, we will begin sharing Colgate and Hamilton programs, resources and expertise across our two campuses. Our close proximity and, more importantly, shared values make this possible. Among other things, we will work together to assist those students on our campuses who, in light of evolving immigration laws, are reconsidering their summer plans and may need help finding summer employment or housing. We will also assist Colgate and Hamilton seniors seeking to plan for the impact of the changing law on their post-graduation employment opportunities. And we will examine ways to provide additional legal guidance on immigration-related issues to members of our community who need it.
As a first step administrators on both campuses are reaching out to students to see what support they might need, particularly in the summer months, and are exploring whether programs and services located on either campus might be of help to them as they navigate this changing landscape.
We take these steps together because we believe that values of diversity, tolerance, and community are central to our educational mission as liberal arts institutions.
We look forward to working together in support of all Colgate and Hamilton students, faculty, and staff in these ways and in future joint endeavors.
David Wippman, President, Hamilton College
Brian W. Casey, President, Colgate University
Executive Order on Immigration
Jan. 30, 2017
Dear Students, Faculty and Staff,
President Trump recently issued an executive order restricting or blocking entry into this country for at least 90 days of nationals from the predominantly Muslim countries of Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. Additional countries may be added to this list in the near future.
Many of you have written to me to express concern about the discriminatory nature of the new restrictions, their impact on individual members of our community, their impact on Hamilton and American higher education, and their inconsistency with some of our community's core values. I share these concerns.
As noted in my December 6 message to the campus, what affects one member of our community affects us all. The College is named after one of this country’s most famous immigrants and has a long history of welcoming community members from around the globe, including countries named in the recent executive order. We will continue to do so. The perspectives and experiences of our international students, scholars and staff greatly enrich our community. Neither our admission standards nor our hiring practices will change. We will remain a diverse, supportive and welcoming campus.
The College will do what it can to support those members of our community affected by the new immigration policy. We are bringing an expert in immigration law to campus next week; she will be available to meet with students, faculty and staff who have questions about the impact of the new travel restrictions. Other campus resources are available to anyone with questions or concerns. Allen Harrison, our Assistant Dean of Students for International Students and Accessibility, can help direct members of our community with questions to the appropriate campus office. We will also work with our U.S. and international students abroad to offer advice, guidance and support.
It seems likely that law and policy in this area will evolve quickly. We will continue to monitor new developments and assist all affected members of our community as best we can.
Supporting All Members of Our Community
Dec. 6, 2016
Members of the Hamilton Community,
In the aftermath of the presidential election, emotions continue to run high, on campus and around the country. I have heard directly from students who feel threatened and unsafe, even here on campus, and from students who worry about their families or friends.
As I said in my November 5 email to the campus, we are a community. What affects one of us, affects us all. It is incumbent upon all of us then to do everything we can to ensure that Hamilton offers a safe, welcoming and inclusive environment in which all members of our community can thrive.
Particular concerns have been expressed for members of our community whose immigration status may put them at risk. With that in mind, over 1,100 students, faculty, staff, and alumni have signed a petition urging that I investigate the possibility of declaring Hamilton a sanctuary campus.
As someone whose career has centered on international law and human rights, I share many of the concerns that have been expressed. At Minnesota, I took the lead in establishing the Center for New Americans, which provides urgently needed legal services to noncitizens and engages in impact litigation to improve immigration law and policy. More recently, I joined other college and university presidents in a statement urging continuation of the Deferred Action for Childhood Arrivals (DACA) program.
Because the term sanctuary campus means different things to different people, I think it best to focus on specific ways in which members of our community may need our support. I discussed our options with the Board of Trustees last Friday, and I want to share with you how I intend to move forward.
First, the College does not now and will not in the future share information about the immigration status of our students, unless legally required to do so.
Second, the College does not now and will not in the future assist with the enforcement of immigration laws against members of the campus community, unless we are legally required to do so. Campus Safety does not and will not ask students or other members of our community about their immigration status. In the absence of exigent circumstances (e.g., an imminent safety threat), police or other law enforcement agencies that wish to carry out immigration enforcement activity on campus need a warrant or court order and that will continue to be our practice in the future.
Third, we are exploring ways to provide legal and other assistance to any undocumented member of our community who needs it. Every one of our students enriches our community in unique ways, but all should be able to enjoy equally the full benefits of a Hamilton education.
Finally, as an academic community, we have a special responsibility to explore the issues that have produced so much polarization in recent months and to model the respectful dialogue that characterizes an engaged learning community. We should not only welcome but insist upon hearing a broad range of viewpoints and treat with respect even those with whom we most disagree.