Comments on Title IX Proposed Regulations

Comments on Proposed Regulations to amend part 106 of title 34 of the Code of Federal Regulations, which implement Title IX of the Education Amendments of 1972

These comments represent the viewpoints of professionals at Rutgers University in student affairs, faculty and graduate students who conduct research on sexual harassment and assault on college campuses, and legal scholars who conduct research and write about sexual harassment and assault, as well as on sex discrimination more generally (hereinafter called “The Committee”). A list of the names and titles of the individuals whose views are represented herein is appended to the end of this comment statement.

The Committee is very concerned that some of the provisions of the proposed regulations will make it more difficult to serve and protect our students, whether they be complainants, respondents, or witnesses. Our concerns are summarized below.

1. The proposed requirements relating to cross-examination will result in fewer victims of sexual harassment and assault making reports to institutions, and are inappropriate to the type of adjudication process used by higher education institutions to determine a student’s responsibility for conduct violations.

Specifically, we are concerned with the requirement that the parties’ “advisor of choice” be permitted to conduct live cross examination of the other party and witnesses, and the prohibition against the decision-maker’s reliance on the statement of a party or witness who does not submit to cross-examination at a hearing. The provision concerning cross examination by an advisor of choice will very likely benefit students who can afford to hire a private attorney; institutions will be required to provide an advisor “aligned with that party” to one or both parties who cannot afford a private attorney. Institutions create on-campus adjudication processes for several purposes, which are different from the purposes of a criminal adjudication. Institutional adjudication is used for educational purposes, to ensure the safety and security of the campus community, and to ensure compliance with their code of conduct. These interests go beyond those of the criminal justice system and thus require different approaches to adjudication.

We have ample evidence that reporting sexual assault on campus through a formal system is extremely low; even reporting or disclosing to confidential campus resources is low (Sabina & Ho, 2014). According to campus climate data from Rutgers-New Brunswick, Rutgers-Newark and Rutgers-Camden, only 19% of students who experienced sexual violence told a campus resource and 2% contacted the university’s Title IX office. The proposed regulations will inevitably lower the number of students who come forward. Disincentives for disclosure will be harmful to our students. There is research that shows that disclosure and a student’s connection with resources have benefits for healing/recovery in a number of domains (academic, mental health, etc.), so anything that discourages disclosure is detrimental to the student who has experienced harassment or assault (Iles, Waks, Seate, Hundal, & Irions, 2018). In particular, those who do not disclose due to a fear of negative reactions from others may experience poorer recovery (Miller, Canales, Amacker, Backstrom, & Gidycz, 2011). Requiring a complainant to be cross-examined by an advocate for the respondent, rather than by a neutral hearing officer, will revictimize the complainant and increase the trauma of the adjudication experience.

We recognize the importance and value of allowing parties to participate in the investigation/adjudication process by identifying questions that should be asked of the other party and/or witnesses. However, we believe that there are other ways to ensure fairness to both parties while reducing the possibility of trauma to any participant. For example, under Rutgers’ existing policies, each party is permitted to submit questions in writing to the hearing officer. At the hearing, the hearing officer determines the relevancy of the submitted questions and then presents the questions to the other party/witness, re-wording the questions as necessary to clarify and/or minimize confrontation and trauma. This method achieves the goals of cross-examination while avoiding its negative impacts on the hearing participants. Data from student surveys conducted at Rutgers show that this process is perceived by students, both men and women, to be fair. 

Recommendation: Remove the requirement of live-time cross-examination by a party’s advisor (proposed Section 106.45(b)(3)(vii)); instead allow institutions to adopt grievance procedures that permit cross-examination through other means, such as through the submission of questions by the parties to a hearing officer and/or panel.

2. Limiting institutions’ ability to use the Title IX grievance process to investigate and adjudicate complaints of harassment or assault that occur off campus and/or do not occur within the context of an institution’s program or activity disserves students because approximately half of all sexual misconduct complaints received by higher education institutions relate to incidents that occurred off campus and did not involve participation in an institution’s program or activity.

The proposed regulations state that if the conduct alleged by the complainant did not occur within the recipient’s program or activity, the recipient must terminate its grievance process with regard to that conduct and dismiss the complaint (or that part of the complaint). This requirement may effectively prohibit institutions from investigating the many reports of incidents that occur between students that occur off-campus, at events or locations unaffiliated with an institution’s program or activity, but which have a direct impact on the students’ ongoing ability to participate in the institution’s programs or activities. In other words, it will constrain institutions from responding to incidents that occur off campus outside an institution’s program or activity, but which have the effect of creating a hostile environment for the complaining student within the institution.

Many fraternity houses and other student housing are off campus and not affiliated with the institution; many bars, clubs, and other public spaces are not affiliated with the campus but are frequented by our students and are places where sexual violence occurs. Research suggests that sexual assault happens anywhere that a student lives, studies, and engages in recreational activities – both on and off campus. To that end, the AAU Campus Climate survey conducted with 27 institutions found that a significant proportion- almost half- of all incidents occurred off campus. For example, the total percentage of victims who reported an incident of forcible penetration on campus was 51.7%, while the percentage of those off campus was 48.3% (Cantor et al., 2016). The Bureau of Justice Statistics Campus Climate Validation study with nine institutions of higher education found that overall, with some variability, only about one third (33%) of sexual assault incidents took place on campus, with the rest occurring off campus (Krebs et al., 2016). Across the Rutgers-New Brunswick, Rutgers-Newark, and Rutgers- Camden climate surveys, a total of 69% of incidents occurred at locations considered off-campus that would not be protected according to the new regulations.

Furthermore, the proposed regulations are silent on how the Department will apply Title IX to cyber harassment. Cyber harassment is a serious problem, both in our society in general and for college students in particular. A recent ruling by the U.S. Court of Appeals for the Fourth Circuit in Feminist Majority Foundation et al. v. Hurley and University of Mary Washington, 2018 U.S. App. LEXIS 35556 (4th Cir. Dec. 19, 2018) found that a university could be found liable under Title IX for cyber harassment against specific students, and remanded the case for trial. Colleges and universities need tools to protect students from this form of sexual harassment (as well as other forms of discrimination).

Recommendation: Delete provision of proposed regulation that requires dismissal of complaints that relate to incidents that are not alleged to have occurred within the recipient’s program or activity (proposed Section 106.45(b)(3)).

3. The requirement that institutions dismiss complaints of harassment or assault that occurs outside the United States ignores the reality that these problems occur in study abroad programs, and need to be addressed.

Research has shown that female students are more likely to be sexually harassed on study abroad trips than on their home campus (Kimble, Flack and Burbridge, 2013). While institutions provide training in safety precautions prior to these trips, the research shows that, particularly in study abroad programs located in non-English speaking countries, harassment and assault are not uncommon. Institutions should not be prevented from responding to students who encounter harassment in study abroad programs as they would if the misconduct occurred on the home campus.

Recommendation:  Delete the provision in section 106.45(b)(3) from the regulations.

4. Prohibiting institutions from using the Title IX grievance process to handle complaints of sexual harassment unless the complainant alleges that he/she has been “effectively denied [. . .] equal access to the recipient’s education program or activity” is inconsistent with the requirement that institutions implement supportive measures to prevent such denial from occurring. 

The proposed regulations’ requirement that institution terminate grievance procedures unless the alleged conduct meets the proposed definition of sexual harassment, which requires that the complainant has been “effectively denied [. . .] equal access” to the institution’s education program or activity, will impede institutions from adjudicating matters where its own actions in implementing supporting measures were effective in preventing that result. In other words, the very success of the interim/supportive measures that the institution provides could preclude adjudicating a student’s complaint, even if the harassment were severe, pervasive and objectively offensive, and even if the misconduct had been perpetrated by a faculty or staff member. For example, a complainant who has received counseling and academic support such that he or she can function adequately should not be foreclosed from having alleged harassment or assault adjudicated simply because the student has not dropped out of school or been unable to function in class.

In addition, research shows that individuals experience sex-based misconduct differently, depending on prior life experiences, previous victimization, etc. (Shors and Millon 2016; Millon, Chang and Shors, 2018). While the investigation and adjudication process takes into account whether the complainant’s response to the alleged harassment is reasonable on an objective basis, the proposed definition restricts an institution’s ability to consider all relevant factors in responding to a student’s claim.

Recommendation: Remove provision of proposed regulation that requires institutions to dismiss a complaint unless the complainant alleges that the conduct at issue denied the complainant equal access to the recipient’s program or activity (proposed Section 106.45(b)(3)).

5. Applying a presumption that respondents are not responsible until the investigation and adjudication process have ended, and including such presumption in the initial notice issued to both parties may limit the institution’s ability to offer either party interim measures, such as relocating the residence or classes of one or both parties, and will have a chilling effect on complainants’ willingness to pursue formal complaints

As noted above, individuals who have experienced harassment or assault are reluctant to report this behavior, despite a wide array of services for students in both prevention and response to sexual misconduct. The student environment differs from other environments in that relatively small and regular classes and repeating social patterns can force complainants and respondents together in situations that those outside the academy can more readily avoid. While the presumption should clearly be made clear during the investigation and adjudication process, it should not be used to discourage alleged victims from coming forward or used as a justification for denying a party access to services or other supportive measures.

Recommendation: Clarify in the proposed regulations that the presumption attaches only during the investigation and adjudication process, and that it may not be used to justify limiting equitable interim measures for both the respondent and the complainant.

6. The definition of sexual harassment set forth in the proposed regulations is inconsistent with other federal and state laws.

The proposed regulations provide that, if a complaint does not articulate conduct that is so “severe, pervasive, and objectively offensive” that it “effectively denies access to an institution’s program or activity,” the institution must terminate its grievance process with respect to that complaint. This requirement would create a real problem for institutions if a complainant could assert a claim under both Title IX and Title VII of the Civil Rights Act of 1964. For example, if a student employee were to file a sexual harassment complaint against an employee alleging conduct that is severe, but not pervasive, the proposed Title IX regulations would require dismissal of that complaint. However, that individual might still be able to assert a claim under Title VII, and the University would need to investigate the complaint in order to comply with its obligations under Title VII to end any ongoing harassment and prevent its recurrence.  At best, this would require some kind of bifurcated or parallel process that would be difficult to administer. 

In addition, other anti-discrimination laws define “sexual harassment” more broadly, and require institutions to respond to reports of such conduct.  For example, it is well-established that an employee can establish a violation of Title VII, which prohibits sex-based discrimination against employees, by proving that he or she was subjected to sexual harassment that is severe OR pervasive.  Many state anti-discrimination laws, such as the New Jersey Law Against Discrimination, similarly define and prohibit sexual harassment.  These state and federal laws therefore require institutions of higher education to investigate allegations that may fall outside the scope of the definition of sexual harassment set forth in the proposed regulations, such as sexual harassment or assaults that occur off campus/outside an institution’s program or activity but are perpetrated by a student, employee, or other individual affiliated with the institution. The requirement in the proposed regulations that a complaint that does not allege behavior that meets the regulations’ definition of sexual harassment be dismissed is directly contrary to an institution’s obligations under such laws where the definition of sexual harassment and discrimination are broader. In certain circumstances, it may be impossible for the institution to comply with both federal laws, or with conflicting state laws.
 

Recommendation:  Remove Section 106.45(b)(3) from the proposed regulations.

 

Summary

Title IX of the Education Amendments of 1972 was enacted to respond to discrimination against students in schools and colleges.  Although progress has been made, sex discrimination has not been eliminated. The Committee members believe that certain provisions of the proposed regulations will make it more difficult, and in some cases impossible, to respond to students who believe they have encountered sexual harassment or assault. We are concerned that these provisions will also present barriers to our prevention efforts, which are critical for ultimately reducing the incidence of sexual harassment and assault. We appreciate the opportunity to respond to the proposed regulations, and will be pleased to provide additional information or clarifications of our position.

 

Research Cited

 

Cantor, D., Fisher, B., Peterson, S., Sun, H., Townsend, R. (2016). Characteristics of Nonconsensual Sexual Contact Incidents: Penetration and Sexual Touching by Force or While Incapacitated (Rep.). Retrieved https://www.aau.edu/sites/default/files/@ Files/Climate Survey/Characteristics-of-Nonconsensual-Sexual-Contact.pdf

Iles, I. A., Waks, L., Seate, A. A., Hundal, S., & Irions, A. (2018). The unintended consequences of rape disclosure: The effects of disclosure content, listener gender, and year in college on listener’s reactions. Journal of Interpersonal Violence. https://doi.org/10.1177/0886260518781799

Kimble, M., Flack, W. F., Jr., & Burbridge, E. (2013). Study abroad increases risk for sexual assault in female undergraduates: A preliminary report. Psychological Trauma: Theory, Research, Practice, and Policy, 5(5), 426-430.  http://dx.doi.org/10.1037/a0029608

Krebs, C., Lindquist, C., Berzofsky, M., Shook-Sa, B., & Peterson, K. (2016). Campus Climate Survey Validation Study Final Technical Report (Rep.). Retrieved from https://www.bjs.gov/content/pub/pdf/ccsvsftr.pdf

Miller, A., Canales, E., Amacker, A., Backstrom, T., & Gidycz, C. (2011). Stigma-Threat motivated nondisclosure of sexual assault and sexual revictimization: A prospective analysis. Psychology of Women Quarterly, 35(1), 119–128. https://doi.org/10.1177/0361684310384104

Millon, E.M., Chang, H.Y., Shors, T.J. (2018). Stressful life memories relate to ruminative thoughts in women with sexual violence history, irrespective of PTSD. Frontiers in Psychiatry, https://doi.org/10.3389/fpsyt.2018.00311

Sabina, C., Ho, L., & Jordan, C. (2014). Campus and college victim responses to sexual assault and dating violence: Disclosure, service utilization, and service provision. Trauma, Violence, & Abuse, 15(3), 201–226. https://doi.org/10.1177/1524838014521322

Shors, T.J. and Millon, E. (2016). Sexual trauma and the female brain. Frontiers in Neuroendocrinology. 2016 Apr 13: S0091-3022(16)30013-9. doi: 10.1016/j.yfrne.2016.04.001.