Writings & Remarks

Response to the Department of Education’s Proposed Title Ix Rule Changes

January 30, 2019

Tags Public Statements

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.

Sincerely,

David Wippman, President
Hamilton College