Alliance Statement on Proposed Title IX Changes

January 30, 2019

Kenneth L. Marcus
Assistant Secretary for Civil Rights Department of Education
400 Maryland Avenue SW Washington DC, 20202

Re: ED Docket No. ED-2018-OCR-0064, RIN 1870-AA14, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.

Dear Mr. Marcus,

We write to oppose the regulations that have been proposed by the Department of Education that would be implemented for Title IX of the Education Amendment Act of 1972 (Title IX). We arespecifically responding to the Department of Education’s (the Department) Notice of ProposedRulemaking (NPRM) as published in the Federal Register on November 29, 2018. Members of our agency have written their portions of this comment from their specific areas of expertise below. Please note the citations and studies referenced in the endnotes at the end of the document.

Part I: Legal Definitions and Standards by Mary Haviland, Esq.

My name is Mary Haviland and I am the Executive Director of the New York City AllianceAgainst Sexual Assault. I have been working in the field of violence based on one’s gender for thepast 40 years. I began as a paralegal in Legal Services Matrimonial Unit in 1978 and for the past 23 years have directed organizations which have had the mission of decreasing the incidence of both Domestic Violence and Sexual Assault. I have a law degree from the New York University School of Law and am admitted to practice law in the state of New York.

For the last seven years, I have been directing the New York City Alliance Against Sexual Assault (The Alliance). For these seven years, this organization has been deeply involved in the issue of sexual violence in the campus setting. We have been an expert technical assistance provider to the rape crisis programs in New York State during my tenure here. As such, we have provided training and capacity building to rape crisis centers that are providing their expertise to NYS colleges and universities (there are 55 rape crisis programs and 330 colleges and universities in New York State). In 2011, approximately 25% of rape crisis centers state-wide were working with a campus on their response to campus sexual assault. Now, after passage of our amendments to the NYS Education Law Article 129 B, 100% of the rape crisis programs in this state are working with at least one campus in their county. They have established 252 partnerships with campuses in the state and in the last two years have reach over 175,000 people on campuses in their awareness efforts.1 The Alliance alone has provided 65 trainings to 1,194 students, administrators, public safety and faculty to a dozen institutions of higher education in 2018.

In addition, the Alliance worked with stakeholders on the drafting and bipartisan passage of our 2015 amendments to the Education Law.

1 New York State Education Law, Article 129-B

This law, amendments to the NYS Education Law, Article 129-B, set out requirements for colleges and universities, public and private, with regards to their response to domestic violence, dating violence, stalking and sexual assault.2 Broadly, this law contains provisions which set out;

o a policy for alcohol and/or drug use amnesty;
o a bill of rights for reporting students which promises a fair and impartial process for reporting, the right to make a decision whether to proceed with a report to the institution and local law enforcement, and an appeals process among other provisions; differentiation between confidential and responsible parties on campus;
o the right to be protected by the institution from retaliation;
o access to a sexual assault forensic exam and local services;
o interim safety protections and accommodations such as no contact orders and changes in academic, housing, employment and transportation arrangements;
o Due process provisions for the responding student such as immediate review of interim suspension if ordered, notice of allegations, opportunity to review and offer evidence, an advisor of choice, access to a full and fair record of the proceeding, advance written notice of all meetings, written notice of rules alleged to have been violated, the presumption of innocence and the opportunity of appeal. As importantly, any right provided to the reporting individual must be similarly provided to a responding student.

The law also has broad requirement regarding education of in-coming students, student leaders and others regarding domestic, dating and sexual violence as well as stalking. It requires a climate survey every two years and the publication of those surveys in aggregate non-identifiable data. Finally, it provides for prevention education and a campaign that complies with the Violence Against Women Act.

The Alliance worked with the Governor’s Office, student leaders, representatives from the NewYork Civil Liberties Union and multiple state legislative representative from both the Republican and Democratic parties on drafts and passage of the legislation. These experiences place me in an excellent position to evaluate the Department’s proposed regulations.

The New York City Alliance Against Sexual Assault is opposing multiple provisions of the proposed regulations. We believe that taken in their entirety, the propose regulations will fail to protect students who experience gender-based violence on campus, will chill the reporting of incidents of violence and harassment, and will fail to reduce the incidence of this violence in the future. As such, we do not believe that these regulations further the purposes of Title IX to address discriminatory behavior and activity that results in the creation of a hostile environment among institutions of higher education. For these reasons, we oppose the adoption of these regulations in their entirety.

A major over-arching concern with the proposed regulations are that they are silent on domestic and dating violence as well as stalking. The only mention of these forms of violence are with reference to the scope of the Clery Act. According to the National Coalition Against Domestic Violence, 2007, 21% of college students report having experienced dating violence by a current partner and 13% of college women report they have been stalked. These types of violence affect a significant proportion of the college population and the proposed rules’ failure to address these forms of gender-based violence represents a serious oversight resulting in only partial protection from gender-based violence for this country’s students.

2 Statistics obtained from the New York State Department of Health

Secondly, the definition of sexual harassment used by the proposed regulations is too narrow to protect many students from actions that can create a hostile and abusive environment in the higher education context. The Supreme Court held in Davis v. Monroe County in 1999 that “unwelcome sexual advances” can create a “hostile” and “abus[ive]” environment “in violation of Title IX.” 3The Department issued guidance in 2001, 2010, 2011, and 2014 defining sexual harassment as“unwelcome conduct of a sexual nature.” 4 Yet the proposed regulations adopt a much more restrictive definition of sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, AND [emphasis added] objectively offensive that it denies a person access to [the institution of higher education’s] education program or activity” or sexual assault as defined in 34CFR 668.46(a), implementing provision of the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act). The Clery Act definition includes rape(defined as both vaginal and anal penetration, with any body part or object, or oral penetration by a sex organ of another person, without the consent of a victim including the rape of both males and females), fondling (“the touching of the private body parts of another person for the purpose of sexual gratification including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental incapacity”) and incest (“sexualintercourse between persons who are related to each other within the degrees wherein marriage isprohibited by law”).5

Though the Clery definition encompasses many forms of sexual assaults, it does not include behavior often exhibited in the sexual harassment context. These display as aggressive propositioning, lewd gestures, verbal gender-based comments, etc. These types of behavior are deeply disturbing, emotionally damaging and contribute significantly to the creation of a hostile environment that would interfere with a student’s ability to avail themselves of educationalactivities. Yet the proposed regulations, by adopting the formulation of three requirements; severe, pervasive AND objectively offensive, renders single acts of this behavior probably ineligible for regulation by an institution of higher education under Title IX. It may also render perceived lessor forms of repeated harassment ineligible for action. This approach is likely to chill reporting on the part of students because they will deem their experiences as not serious enough.

Consider, for example, a student being repeatedly harassed by their professor. The harassment maynot be considered “severe” and is not explicitly “quid pro quo”; additionally the student may needthat particular class credit in order to graduate or maintain their financial aid so is determined not to drop the class. In this example – as the harassment would be considered “pervasive” but perhaps not “severe” or “effectively denied a person equal access to the recipient’s education program or activity” – the student would not be able to report to their institution or receive support. Their access to educational opportunities is however, significantly affected – the protection of which is the very purpose of the Title IX statute.

Furthermore, the proposed regulations adopt a higher standard of knowledge to trigger a response by an institution of higher education than the earlier guidance. The 2001 Guidance requires schools to address student-on-student harassment if any employee “knew, or in the exercise of reasonable

3 https://supreme.justia.com/cases/federal/us/526/629/
4 U.S. Department of Educ., Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (2001) available at https://www2.ed.gov/about/offices/list/ocr/docs/shguide.html 5 U.S. Department of Educ., Office of Postsecondary Education, The Handbook for Campus Safety and Security Reporting(2016) available at: http://www.ed.gov/admins/lead/safety/campus.html

care should have known” about the harassment. In the context of employee-on-student harassment, the Guidance requires schools to address harassment “whether or not the [school] has ‘notice’ of the harassment.” 6 Under the 2001 Guidance, schools that do not “take immediate and effective corrective action” would violate Title IX. These standards have guided OCR’s enforcementactivities for almost 20 years. They implement Title IX’s nondiscrimination mandate by requiring schools to quickly and effectively respond to serious instances of harassment and fulfilling OCR’spurpose of ensuring equal access to education and enforcing students’ civil rights.

The proposed regulations create a very concrete barrier to reporting gender-based discriminatory behavior. They require that the institution of higher education possess “actual knowledge” ofsexual harassment which it defines as a report to a Title IX coordinator or an official “who has the authority to institute corrective measures” on behalf of the institution. This ratchet up of the standard for knowledge will require a campus to identify the qualified staff and educate the campus community sufficiently for students to make the proper choice. This will prove to be a difficult task. In addition, many college/university staff who are typically the recipients of disclosures are likely not to be qualified. These might include faculty, resident advisors, coaches, or student advisors. Nor is there a provision for the confidential reporting of an event of sexual harassment depriving a student of the opportunity to discuss the act of reporting with a trusted campus employee.

Many students know and trust their professors, advisors, coaches, etc. much more than they do the administration. Consider recent high profile cases such as at Michigan State University. Under theDepartment of Education’s proposed regulations, Michigan State University would have had no responsibility to stop Larry Nassar from sexually abusing students, because the student victims reported to their couches and athletic trainers instead of the Title IX Coordinator.

Furthermore, instead of requiring that institutions of higher education “take immediate and effective corrective action”, these institutions will only be required to react in a manner that is not “deliberately indifferent” or is “clearly unreasonable in light of the known circumstances”. The proposed regulations reach this conclusion by using a standard for addressing sexual harassment which was used by the Supreme Court in Gebser v. Lago Vista Independent School Dist, a Title IX lawsuit seeking monetary damages. This standard of “deliberate indifference” to an incident of sexual harassment that is so “severe and pervasive” as to deprive a student of educationopportunities was recognized by the Court as applying to private suits seeking monetary damages, not to administrative proceedings.7 This combined with the requirement that the notice of sexual harassment must be made to an employee in the institution of higher education “who has the authority to institute corrective measures on behalf of the institution” creates new, unprecedented obstacles to the reporting of sexual violence.

Rape and sexual assault cases are one of the most underreported crime in the United States. According to a 2006-2010 study by the Bureau of Justice, 65% of rape or sexual assault cases are not reported to the police.

6 Id.
7 Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 290 (1998) (detailing standard for employee-on-student harassment); Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 650 (1999) (detailing standard for student-on-student harassment)

8 On college campuses, the level of reporting is judged to be even lower. In the last two years, there have been report after report of past incidents of sexual violence that were not reported by people in every sector of the economy such as the entertainment industry, in corporate America, among elected officials and in numerous workplaces across the country. Public sentiment has supported the #metoo messages that decry blaming the victim and demand an end to obstacles to reporting. In this context, these standards are irresponsible to the needs of survivors of sexual assault. These combined standards go in the opposite direction of current public policy; they erect barriers to reporting and allow the maximum latitude for institutions of higher education NOT to respond to gender-based discrimination that is taking place on their campus.

Defining sexual harassment as severe, pervasive AND objectively offensive, requiring “actual knowledge” and imposing the most permissive standard by which colleges/universities must respond to sexual violence is poor policy because it creates a legal regime that conflicts with other civil rights statutes. Title VI of the Civil Rights Act of 1964 prohibits harassing conduct on the basis of race, color, or national origin that is “sufficiently serious to limit or deny a student’sability to participate in or benefit from the educational program”. 9 And neither “actual knowledge” or “deliberate indifference” is required to violate Title VI. To single out sexual violence for higher standards and less enforcement is morally and legally reprehensive. Likewise, for Title VII claims, employees, including student employees, will be held to a different standard from those reporting a sexual harassment claim under Title IX under these proposed regulations. Campuses will have to figure out if students were acting in the scope of their employment when they engaged in (or experienced) sexual harassment before figuring out which standard applies. If the behavior crossed the timelines between ‘punching in and out’, how would campuses proceed – the more inclusive definition? This would cause confusion, would be potentially costly to campuses, and would lead to inequitable processes. In sum, these proposed regulations are not I alignment with other federal discrimination and civil rights statutes.

Finally, the proposed regulations contemplate departing from the Department’s longstanding practice of requiring that schools use a “preponderance of the evidence” standard in Title IX cases to decide whether sexual harassment occurred. Proposed rule § 106.45(b)(4)(i) establishes a systemwhere schools could elect to use the more demanding “clear and convincing evidence” standard insexual harassment cases, while allowing all other student misconduct cases to be governed by the preponderance of the evidence standard, even if they carry the same maximum penalties. TheDepartment’s decision to allow schools to impose a more burdensome standard in sexual assaultcases than in any other student misconduct case appears to rely on the unspoken stereotype and assumption that survivors of sexual assault are more likely to report false claims of sexual assault than students who report physical assault, plagiarism, or other school disciplinary violations. There is no basis for that belief. In fact, men and boys are far more likely to be victims of sexual assault than to be falsely accused of sexual assault.

8 Lynn Langton, Ph.D., Bureau of Justice Statistics, Marcus Berzofsky, Dr. P.H., Christopher Krebs, Ph.D., Hope Smiley- McDonald, Ph.D., Victimization not Reported to the Police, 2006-2010, RTI International, August 9, 2012 NCJ 238536 http://www.bjs.gov/index.cfm?ty=pbdetail&iid=4962

9 https://www2.ed.gov/about/offices/list/ocr/docs/know-rights-201701-religious-disc.pdf

The preponderance standard is used by courts in all civil rights cases.10 It is the only standard ofproof that treats both sides equally and is consistent with Title IX’s requirement that grievance procedures be “equitable.” By allowing schools to use a “clear and convincing evidence” standard,the proposed rule would tilt investigations in favor of respondents and against complainants. The Department argues that Title IX investigations may need a more demanding standard because ofthe “heightened stigma” and the “significant, permanent, and far-reaching” consequences forrespondents if they are found responsible for sexual harassment. But the Department ignores thereality that Title IX complainants face “heightened stigma” for reporting sexual harassment as compared to other types of misconduct, and that complainants suffer “significant, permanent, andfar-reaching” consequences to their education if their school fails to meaningfully address theharassment, particularly as 34% of college survivors drop out of college.11 Both students have an equal interest in obtaining an education. Catering only to the impacts on respondents in designing a grievance process to address harassment is inequitable.

Moreover, Title IX experts support the preponderance standard, which is used to address harassment complaints at over 80% of colleges.12 The NCHERM Group has promulgated materialsthat require schools to use the preponderance standard, because “[w]e believe higher education can acquit fairness without higher standards of proof.” 13 The Association of Title IX Administrators(ATIXA)’s position is that “any standard higher than preponderance advantages those accused of sexual violence (mostly men) over those alleging sexual violence (mostly women). It makes it harder for women to prove they have been harmed by men. The whole point of Title IX is to create a level playing field for men and women in education, and the preponderance standard does exactly that. No other evidentiary standard is equitable.”14 NASPA – Student Affairs Administrators inHigher Education recommends the preponderance standard: “Allowing campuses to single outsexual assault incidents as requiring a higher burden of proof than other campus adjudication processes make it – by definition – harder for one party in a complaint than the other to reach the standard of proof. Rather than leveling the field for survivors and respondents, setting a standard higher than preponderance of the evidence tilts proceedings to unfairly benefit respondents.”15 The Association for Student Conduct Administration (ASCA) agrees that schools should “[u]se the preponderance of evidence (more likely than not) standard to resolve all allegations of sexual

10 Katharine Baker et al., Title IX & the Preponderance of the Evidence: A White Paper (July 18, 2017), available at http://www.feministlawprofessors.com/wp-content/uploads/2017/07/Title-IX-Preponderance-White-Paper-signed-7.18.17-2.pdf (signed by 90 law professors).
11 Cecilia Mengo & Beverly M. Black, Violence Victimization on a College Campus: Impact on GPA and School Dropout, 18(2) J.C. STUDENT RETENTION: RES., THEORY & PRAC. 234, 244 (2015), available at https://doi.org/10.1177/1521025115584750.
12 Heather M. Karjane, et al., Campus Sexual Assault: How America’s Institutions of Higher Education Respond 120 (Oct. 2002),available at https://www.ncjrs.gov/pdffiles1/nij/grants/196676.pdf.
13 The NCHERM Group, Due Process and the Sex Police 2, 17-18 (Apr. 2017), available at https://www.ncherm.org/wp- content/uploads/2017/04/TNG-Whitepaper-Final-Electronic-Version.pdf.
14 Association of Title IX Administrators, ATIXA Position Statement: Why Colleges Are in the Business of Addressing Sexual Violence 4 (Feb. 17, 2017), available at https://atixa.org/wordpress/wp-content/uploads/2017/02/2017February-Final-ATIXA-Position-Statement-on-Colleges-Addressing-Sexual-Violence.pdf.
15 NASPA – Student Affairs Administrators in Higher Education, NASPA Priorities for Title IX: Sexual Violence Prevention & Response 1-2 [hereinafter NASPA Title IX Priorities], available at https://www.naspa.org/images/uploads/main/NASPA_Priorities_re_Title_IX_Sexual_Assault_FINAL.pdf.

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misconduct”16 because “it is the only standard that reflects the integrity of equitable student conduct processes which treat all students with respect and fundamental fairness.”17

In sum, the exclusion of intimate partner violence, dating violence and stalking from the proposed regulations taken together with the narrower definition of sexual violence and the legal standards adopted by the proposed regulations create a legal regime that:

o severely decreases the ability of students to report acts of gender-based discrimination;
o permits non-responsiveness to these complaints short of “deliberate indifference”
o creates inequities across civil rights statutes, and
o allows for the possibility of an unequal playing field between reporting and responding students by allowing, and in some cases, requiring a higher standard of evidence in adjudication proceedings.

This results in a set of proposed regulations that conflict with the very purpose of the 1972 Title IX statute and therefore cannot be supported by the New York City Alliance Against Sexual Assault.

Part II: Geographic Scope and Study Abroad by Heejin Yoon, LMSW

My name is Heejin Yoon and I am the Senior Coordinator of Campus Sexual Assault Programming here at the Alliance. I am a licensed social worker, having obtained my graduate degree from Columbia University in social work and my baccalaureate degree from the George Washington University in Criminal Justice. At the Alliance, I work almost exclusively with colleges and universities in New York City, delivering educational content to students, faculty, and staff across the city. I witness first-hand the unique challenges that college administrators face when working to adequately and appropriately address issues of gender-based violence on their campuses.

In New York State, we also have Education Law Article 129-B, otherwise known as “Enough is Enough.” Enough is Enough is an education law specifically designed to ensure that private and public campuses are doing the most they can to address gender-based violence. In fact, my work at the Alliance is almost entirely funded through the Enough is Enough legislation. I provide regular programming and education to eleven schools across New York City. I work with students of all backgrounds, administrators, staff members and faculty, Title IX Investigators and Title IXCoordinators, staff of Women’s Resource Centers and Counseling/Wellness Centers, HigherEducation Opportunity Program staff, the International Student offices and many more. Part of my responsibilities include conducting annual needs assessments of each of my partners every year. In these meetings, often with Title IX Coordinators, I hear the specific challenges and trends they are seeing. They tell me which types of cases are the most prevalent and how the school responds to them. Based on these experiences, I have some very specific concerns about proposed rules §§ 106.30 and 106.45(b)(3) which would require schools to ignore harassment that occurs outside of a school activity, even when it creates a hostile educational environment.

This is a major concern because the vast majority of the colleges and universities in New York City host a student body that is majority commuter-based. Of my eleven partner campuses, 100% of them have a predominantly commuter-based student body. This means that incidents of sexual

16 Association for Student Conduct Administration, ASCA 2014 White Paper: Student Conduct Administration & Title IX: Gold Standard Practices for Resolution of Allegations of Sexual Misconduct on College Campuses 2 (2014) [hereinafter ASCA 2014 White Paper], available at https://www.theasca.org/Files/Publications/ASCA%202014%20White%20Paper.pdf.
17 Chris Loschiavo & Jennifer L. Waller, The Preponderance of Evidence Standard: Use In Higher Education Campus Conduct Processes, ASSOCIATION FOR STUDENT CONDUCT ADMIN, available at https://www.theasca.org/files/The%20Preponderance%20of%20Evidence%20Standard.pdf.

violence and gender-based violence are most likely to occur ‘off campus,’ and therefore outside of a school-sponsored program or event. The trauma faced by commuter students is no less or different from trauma faced by residential students. The enactment of this rule would block commuter-based students from being able to pursue support from their schools. Furthermore, the majority of my Title IX contacts report that many of the cases they hear about from commuter students are related to a combined incident of intimate partner violence and sexual violence.

If colleges are required to ignore complaints about incidents occurring off-campus, then this means the school cannot provide accommodations to help keep the campus and its other students safe. Consider this: a commuter student is experiencing stalking and receiving threats of violence from a current or ex-partner who is not enrolled in their college. These threats and stalking behaviors are taking place off campus and through online platforms. They make the victimized student feel anxious and fearful to commute from home to school, never knowing where the perpetrator might be at any given time. The individual who is behaving in a threatening way knows where this student goes to school and may even know the victim’s personal academic schedule. Under these proposed regulations, the college is not permitted to respond to this situation—meaning this threatening individual could potentially sneak on and off campus to intimidate the victim or wait for them just off-campus or by the victim’s train station/bus stop to continue their abusive tactics.

Or consider that this student being victimized happens to attend the same college or university and their perpetrator. Incidents are likely not occurring on campus, but the victimized student is forced to see their perpetrator on a regular basis at school. Since incidents of threatening behaviors or violence behaviors are the most likely to occur at home or another location off-campus, the victimized student will not be in a safe environment. If this student is not able to pursue options on campus because the behavior is occurring off-campus, this student is significantly more likely to suffer mental and emotional health consequences. Under the proposed regulations, a school must not respond to a student who is actively and currently being threatened in one way, form, or fashion if all of it happens outside of educational activities sponsored off campus. This effectively blocks the victimized student from being able to pursue their education in a safe environment, free from illegal discrimination.

Additionally, when considering middle and high schools (K-12 institutions), the majority of young students are not boarding, so commute to and from their school every day. If a student was to be assaulted or harassed by another student on their way to school in the morning – even though this happened off-campus, it would absolutely affect their ability to learn. This proposed change is incredibly harmful for middle and high school students, and discounts the reality of the impact that‘off-campus’ violence and harassment can have on educational opportunities.

This proposed rule also excludes harassment and violence being conducted through digital and online platforms when committed off campus. According to the New York City organization, Day One, about 50% of people between the ages of 14-24 have experienced digitally abusive behavior.18Furthermore, with approximately 86%19 of all college students nationwide using smartphone on a regular basis, it would be no shock whatsoever to learn that many NYC-based college students are also experiencing harassment or abuse through digital means.

18 Day One. (2019). Statistics. https://www.dayoneny.org/statistics/
19 Pearson (2015). Student Mobile Device Survey 2015: National Report, college students. https://www.pearsoned.com/wp- content/uploads/2015-Pearson-Student-Mobile-Device-Survey-College.pdf

How are students supposed to pursue any type of recourse or supportive measures if they are barred from options at their college because the harassment cannot be proven to have occurred on campus? Does this give a college or university blanket approval to ignore online-based harassment and abuse? How would a student go about trying to prove or disprove the incident occurred while on campus? What if a student receives a rape threat from a fellow student while in class, but does not see the message until they are at an off-campus coffee shop half an hour later?

The proposed rules fail to address the overall safety of the student receiving threats or being subjected to abuse off campus. It is more than likely that the student who is being victimized will stop attending classes, stop attending club meetings, stop attending athletic events or team practices when they feel they can never be safe on campus because their perpetrator is also on campus. As such, the proposed regulations negate the purpose of Title IX, which is to keep students in school and shut down any incidents of discrimination on the basis of sex.

According to a 2010 Brookings Institute report on New York City, there were approximately 593,663 college students in New York City in 2000.20 Since 2000, the population of NYC has grown from approximately 8 million inhabitants21 to over 8.6 million in 2017.22 If the student-to- city population ratio stays the same from 2000, then we can estimate that roughly 638,000 residents of New York City are also enrolled in a college or university. That is more than half a million students, the majority of whom are commuter-based. These proposed regulations would effectively bar an enormous percentage of college students in New York City from pursuing options and support on their college campuses when they face incidents of gender-based violence. These rules will disproportionately effect cities with largely commuter-based campuses and will have a negative impact on all commuter-based schools nationwide.

Commuter students should not be barred from pursuing recourse for violence or harassment they have faced simply because they do not live on campus. Additionally, many of the students most affected by this change may be lower-income students. The increasingly higher costs of education mean more students are having to live at home and commute to campus for classes. Any regulations to Title IX should seek to make educational opportunities more equitable, rather than negatively impact already vulnerable and under-resourced communities.

Another point of great confusion created by these proposed regulations concerns study abroad. Many students go on study abroad programs through their college or university. In fact, in the 2015-16 academic year, approximately 325,339 US students studied abroad for academic credit 23and that number rose to approximately 332,727 students the following academic year.24 The proposed regulations state that only incidents of sexual violence occurring during a school- sponsored program or activity may be addressed. Study Abroad is one such activity, and yet, is most certainly happening off-campus. What of the student who experiences a sexual assault while on a school-sponsored trip, but not during the academic lessons? If a student studies abroad in New Zealand and enrolls at a partner university, then experiences a sexual assault, what can this student

20 Brookings Institute. (2000). Living Cities: The national community development Initiative. New York In focus. https://web.archive.org/web/20061121164151/http://www.brookings.edu/es/urban/livingcities/newyork2.pdf
21 NYC Planning (2000). Decennial Census-Census 2000. https://www1.nyc.gov/site/planning/data-maps/nyc-population/census- summary-2000.page
22 NYC Planning (2017). Current and Projected Populations. https://www1.nyc.gov/site/planning/data-maps/nyc- population/current-future-populations.page
23 USA Study Abroad. (2017). Study Abroad Data. https://studyabroad.state.gov/value-study-abroad/study-abroad-data
24 National Association of Foreign Student Advisers. (2018). Trends in US Study Abroad. https://www.nafsa.org/Policy_and_Advocacy/Policy_Resources/Policy_Trends_and_Data/Trends_in_U_S__Study_Abroad/

do to seek services and support? Will their host university be responsible to respond? Will their home university in the United States be required to ignore this complaint? Will the student be forced to leave their study abroad program early and if so, does this mean the student forfeits the credits they were supposed to get while there? How does this effect matriculation, financial aid,and the student’s overall GPA?

Currently, a reporting student’s home school has been able to support a student who must leave thecountry they are studying abroad in immediately through Title IX. Students can leave their program early if they feel that is necessary and receive accommodations to ensure that their GPA, Financial Aid, and matriculation are not further jeopardized. Title IX has also been able to communicate with the host school to address concerns about the safety of the student body and campus when necessary. These new proposed regulations would erase all of these accommodations and supports and leave a victimized student with no avenues towards justice or support that may have detrimental effects on their access to educational programming and activities during and following their time studying abroad.

Part III: The Narrow Definition, Cross-Examination and How Trauma Can Affect Survivors by Paige Bik, LMSW

I am writing on behalf of the New York City Alliance Against Sexual Assault where I am employed as the Intervention Program Manager. My name is Paige Bik and I am a licensed social worker in both New York and Massachusetts. For the past ten years I have worked with children, adolescents, and adult victims of crime, specifically sexual assault and domestic violence. I have seen firsthand how incredibly difficult and traumatic it is for a survivor of sexual assault to not only endure sexual crimes, but to go through the process of disclosing their assaults to others. I have witnessed how difficult it is for survivors to heal from sexual crimes. It is my strong beliefthat Title IX’s proposed regulations will make it more difficult for survivors to come forward. This allows abusers to continue to harass and assault others with impunity, thereby decreasing public safety.

From the perspective of a trauma specialist, the proposed change to the definition of sexualharassment from “unwelcome conduct of a sexual nature” to “unwelcome conduct on the basis ofsex that is so severe, pervasive, and objectively offensive that it effectively denies a person equalaccess to the recipient’s education program or activity” is particularly concerning. This changes the definition of sexual harassment from concise and clear to convoluted and confusing. Because the proposed definition of sexual harassment is extremely narrow, survivors will be less likely to come forward. Many survivors might not necessarily know whether their experiences are deemed“severe” or “pervasive” enough to qualify and will avoid being scrutinized in a proceeding thatthey may feel will turn out to be meaningless or demeaning.

Many, many students will hesitate to seek out further help because they will not know if their casewill be taken seriously or if their institution will “count it” as an incident worth looking into. A victim’s avoidance of Title IX may put survivors in jeopardy of being abused again and will also allow abusers to continue abusing without repercussions. Another troubling aspect of thisdefinition change is the added portion that the harassment needs to be “so severe that it effectively denies a person equal access to the recipient’s education”. This addition is extremely troublingbecause it fails to take into consideration the fact that individuals respond to trauma in different ways. Consider the survivor who is in shock and who presents as stoic when reporting their assault.

Could this student’s complaint be dismissed because it doesn’t seem to be “so severe that it effectively denies a person equal access to the recipient’s education”? In my time serving survivors of sexual and domestic violence, I can testify to the many different ways by which survivors will behave after incidents of trauma. Many survivors present as calm. Survivors should not be penalized because of the manner in which they present themselves when reporting an incident of sexual violence. Instead, the perpetrator’s actions should be scrutinized regardless of how a survivor reacts to the harassment or abuse.

Another disturbing aspect to the proposed regulations is the requirement of live cross- examinationduring hearings. I have worked with victims in many criminal cases that required “proof beyond areasonable doubt”. These victims were almost always required to testify and were therefore subjectto cross examination. I witnessed the trauma, shame, and embarrassment that survivors felt when they recounted intimate sexual details in courtrooms full of strangers and when they disclosed those details in front of their abuser during trial testimony. To imagine a student having to outline these types of details in front of fellow students, professors, and other school administrators they will have to interact with is horrifying.

Title IX hearings are civil matters where the standard of proof is lower than that of the criminal legal system and this is how it should remain. Under the current regulations, survivors have been able to avoid giving live testimony and enduring cross examination. Colleges could have an investigator meet with the survivor and accused separately to make a determination. In contrast,the Department’s proposed regulations require that colleges have a live hearing where a survivor can be cross examined by an “advisor of choice”, picked by the respondent student.

The term “advisor of choice” is not clearly defined and potentially could be someone without anyexperience interviewing survivors of trauma. Even more troubling is the scenario in which the survivor is cross examined by someone they know. Consider, for example, a professor that teachesa class the reporting student has to take in the future to graduate, being the responding student’sadvisor of choice. The “advisor” could be allowed to dig into the survivor’s past sexual history and potentially even berate and victim blame the survivor sitting through cross-examination with the protections provided in the court process. In this example, regardless of the outcome the reporting student may feel traumatized from the experience of cross-examination and afraid to take that class with the professor in the future. This would directly impact their access to educational opportunities.

Another concerning scenario is a responding or reporting student’s parent cross-examining the other party. All of this would be done without the protections provided in a normative criminallegal setting, meaning the survivor’s advisor would not be able to object or shut downinappropriate and irrelevant questions. The cost that would be required to adequately train advisors of choice in order to ensure that cross-examination is indeed used as a “legal engine” for the “discovery of truth” has not been considered or addressed in these regulations.25

Cross examinations are retraumatizing for survivors and can be filled with gender stereotypes and victim blaming assumptions (Zydervelt, 2016).26 This proposed regulation could turn college campuses into inefficient, substandard mini courtrooms. In civil matters, cross examinations are

25 California v. Green, 399 U.S. 149, 158 (1970) (quoting John H. Wigmore, 5 Evidence § 1367, at 29 (3d ed., Little, Brown & Co. 1940)
26 Zydervelt, S. Zajac, R. Kaladelfos, A and Westera, N. (2016). Lawyers’ Strategies for Cross Examining Rape Complainants; HaveWe Moved Beyond the 1950’s? British Journal of Criminology, 57(3), 551-569.

extreme and unnecessary. Forcing a survivor to face their abuser, coupled with them having toundergo a cross examination by an “advisor” inexperienced in performing trauma-informed interviews, makes the likelihood of a survivor reporting sexual harassment or abuse decrease.

Part IV: Cross-Examination in K-12 Settings, by Christina Ortiz, MPH

My name is Christina Ortiz and I am writing in addition to my colleague’s notes on cross- examination to outline why cross-examination should also be avoided at the K-12 levels. I have over decade of experience working with youth and young adults, specifically in underserved and minority communities. Currently, I am the Senior Prevention Coordinator at the Alliance and a major part of my job is working with youth and young adults, ages 14-21, delivering educational workshops around teen dating abuse and sexual violence. Our conversations often focus on the lack of resources, education, and support from not only local communities but local and federal government.

Sexual harassment should never be the end of anyone’s education. Yet these proposed rules wouldmake schools more dangerous for all students. In particular:

Proposed Rules (§ 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.

The proposed rule would allow the option of a live hearing for K-12 schools and be mandatory for college, with no restrictions on who would be allowed to cross-examine the survivor(s) andwitnesses (i.e. “advisor of choice”). This “advisor of choice” could range from an angry parent, toan aggressive attorney. Imagine being 14 years old and having the parent of your harasser, angrily questioning you about your assault, your sexual history, and your life. It is frightening and traumatizing. In fact, this is why the 2011 guidance strongly discouraged schools from allowing parties to personally cross-examine each other in sexual violence cases. To avoid perpetuating a hostile environment, schools were urged to ask each side to submit questions to a third party, who would then cross-examine the other side on their behalves.

While the proposed regulations do cite the rape shield laws – Federal Rule of Evidence 412 – which “intend to safeguard complainants against invasion of privacy, potential embarrassment, and stereotyping” they also lay out two exceptions to these critical protections. The proposedregulations state that “such exceptions promote truth-seeking”, however they are more likely toencourage harassment of victims and inappropriate and traumatizing questions.

Children represent a vulnerable set of victims and witnesses, given their formative emotional development and their limited understanding of civil and legal procedures. Concerns have been raised that subjecting children to cross-examination by the defendant or other aggressive “advisor of choice” can force the children not only to re-live the trauma but also to experience continued negative emotions associated with the experience, such as anger, fear, humiliation, and powerlessness.

27 Other fears include being hurt by the defendant, embarrassment about crying or not being able to answer questions and a fear of going to jail. The more frightened a child is, the less they are able to answer questions about an already terrifying or humiliating event.28 This in fact would negatively impact the truth-seeking aspect of an investigation.

Experts have argued that defendants can use cross-examination to threaten children into silence and to humiliate victims while potentially re-living the power and satisfaction originally felt during the victimization. In a study of long-term consequences, 176 children were interviewed 12 years after testifying and sitting through cross-examination. Children who testified when they were younger had more severe externalizing symptoms. Testifying repeatedly was associated with worse mental health outcomes and testifying about severe abuse had higher levels of trauma-related problems.29

In 2018, a projected 12.3 million college and university students will be under age 25.30 This proposed rule mandates cross examination in higher education however there is no distinction between a 17-year old high school student or a 17-year old college student. In one study, in-depth interviews with 130, 8-17-year old children appearing as sexual abuse victims in Australia revealed that two of the most distressing parts of the legal process were seeing the defendant and sitting through cross-examination.31

Again, it is important to highlight that with live cross-examinations, accused students and their biased advisor can raise pointed questions designed to embarrass or traumatize the survivor, such as questions about mental health, substance abuse or irrelevant details of the events alleged. Victims may be more likely to drop their case if they know that they will be directly cross- examined by their harasser or another aggressive party. If they choose to drop the case, they will likely continue to face a hostile and intimidating environment that inhibits their capacity to learn at school. In choosing not to drop the case, then the only way they can remedy their current hostile environment is by subjecting themselves to further hostility.

This proposed rule does not offer any safe choices for survivors wanting to gain justice and maintain their education. And ultimately, when a reporting student decides to drop a case because they find the live cross-examination too intimidating and embarrassing, it ultimately makes the campus or school more unsafe for everyone by allowing the perpetrating individual continue behaving in abusive ways.

Part V: Additional Barriers to Survivors and Lack of Supportive Measures by Ashleigh Andersen, LMSW

My name is Ashleigh Andersen and I have five years of experience working directly with victims and survivors of gender-based violence, specifically those impacted by sexual and intimate partner violence. I am a licensed social worker, having obtained my graduate degree from the Silberman School of Social Work at Hunter College. Currently, I am the Intervention Coordinator at the Alliance where I provide direct services including counseling and advocacy to survivors of sexual violence, many of whom are high school and college students.

27 Hobbs, S.D. & Goodman, G.S. Int. Journal on Child Malt. (2018) 1: 77. https://doi.org/10.1007/s42448-018-0005-z

28 Pantell, R. H. (2017). The Child Witness in the Courtroom.

31 Eastwood, C., & Patton, W. (2002). The experiences of child complainants of sexual abuse in the criminal justice system. Retrieved from Criminology Research Council – Australian Institute of Criminology website: http://www.criminologyresearchcouncil.gov.au/reports/eastwood.pdf.

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Sexual violence impacts survivors’ lives in significant ways and without proper supports and protections, can have devastating effects. Many of the proposed regulations are concerning from the perspective of a direct service provider, in particular:

1. Proposed Rules 106.44(e)(4) and 106.45(b)(1) section (v) would add additional barriers to survivors with unclear definitions of supportive measures and the opportunity for a delayed timeframe both of which would only negatively impact the complainant.

As a direct service provider, I see firsthand the many barriers survivors face when trying to get the help and support they need. Some of these major barriers as stated in the Journal of American College Health lists shame, guilt, embarrassment, fear of not being believed, being outed in terms of sexual orientation or gender identity, and retaliation.32 Creating unclear and uncertain supportive measures will be an additional barrier that can lead to an increased number of students not reporting an incident of sexual violence to their school.

Dr. Christopher Wilson, Psy.D, defines trauma as “extreme fear, terror, or horror plus the real or perceived lack of control”.33 Experiencing any form of sexual violence can be extremely traumatic and barriers put in place that prohibit or deter survivors from seeking the support or help they need, can exacerbate this trauma. Many survivors of sexual violence develop Post-Traumatic Stress Disorder (PTSD). Some common symptoms of PTSD include the re-living of the traumatic event in the forms of flashbacks or nightmares, the development of avoidant behavior, such as staying away from activities or places where the perpetrator might be, and hyperarousal that leads the survivor to be overly alert and/or having difficulty concentrating.34 In my experience, the majority of survivors express feeling most, if not all, of these symptoms following an incident of sexual violence. For student survivors, this can be seen in avoiding certain classes or not being able to complete an assignment on time.

The proposed regulations define supportive measures as “non-disciplinary, non- punitive individualized services offered as appropriate, as reasonably available, and without fee or charge, to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed.” What is most important to note when it comes to the supportive measures is that the proposed regulation place greater significance on non-punitive measures rather than the potentially very real physical harm or danger that the complainant, and other members of the student body, could be facing. The concern of the school and Title IX should first and foremost be the safety of its students rather than prioritizing cost or non-punitive measures.

Furthermore, another concerning issue that creates a barrier to survivors is the proposed change in the regulations that would allow the delay of an investigation due to concurrent law enforcement activity. Again, it must be reiterated that the purpose of Title IX is to keep students in school and

32 Barriers to Reporting Sexual Assault for Women and Men: Perspectives of College Students (2006) Journal of American College Health vol. 55, NO3. http://www.middlebury.edu/media/view/240971/authentic/sable_article.pdf
33 Certified FETI (2018) Introduction to the Forensic Experiential Trauma Interview: Neurobiology of Trauma
34 CDC Injury Prevention: Coping with a Traumatic Event https://www.cdc.gov/masstrauma/factsheets/public/coping.pdf

provide avenues for all students to pursue their educational pursuits in a safe environment. From my professional experience working directly with survivors who have engaged with the criminal justice system, I know that a full investigation can take anywhere from several months to a year. If a Title IX investigation is delayed on the basis of a criminal investigation, there a strong likelihood that a survivor could graduate before their Title IX investigation is able to conclude. This would defeat the purpose of a Title IX statute.

What about the student who is assaulted their sophomore year of college? Perhaps this student is assaulted by another classmate in the same year and decides to report both to Title IX and to formal law enforcement entities. This student is likely seeking accommodations and supports from the school and legal recourse through the criminal justice system. If there is enough informationand evidence for this student’s case to go to trial, it could take years before the case is concluded.Under the proposed rules, this student’s report to Title IX would have to be ignored, meaning thatthis student could spend the rest of his time on campus fearing that he will run into his perpetrator on campus, in classrooms, or in residential and shared spaces. The safety of this student and their access to education free from harassment and harm is effectively negated when the school decides to wait for the conclusion of a criminal trial.

During this time, the perpetrator of this student could be terrorizing the student who reported orcould be perpetrating against other students on campus. Because of a perpetrator’s continuedpresence on campus, I have seen how many student survivors find it increasingly difficult to participate in school, coursework, and school-related activities while also having to muster the mental and physical energy for a prolonged investigation.

The very purpose of an additional system and process under the civil Title IX statute alongside the criminal justice system is to offer remedies and resources that a law enforcement investigation and process cannot provide. The two types of investigations are deliberately separate and should therefore be perused concurrently rather than consecutively.

Part VI: Access to evidence and religious exemption by Anastasia Gorodilova

My name is Anastasia (Nastia) Gorodilova and I have been working in the field of campus sexual assault and Title IX for 6 years, currently working as the Senior Coordinator of Systems and Training at the Alliance. In this role, I coordinate a statewide Training and Technical Assistance program, supporting rape crisis programs and community-based organizations in their work with local colleges and universities. I work directly with over 50 programs across New York State, building their capacity to understand campus sexual misconduct policies as well as state and federal laws, including Title IX, the New York State Education Law 129-B ‘Enough is Enough’,the Jeanne Clery Act, and the Violence Against Women Act. Additionally, I train these programs on inclusive primary prevention, as well as informed direct services and advocacy for student victims. This role allows me to have a deep understanding of the needs and realities of students across New York State, as well as the processes of the colleges and universities that they attend.

I am writing on behalf of the New York City Alliance Against Sexual Assault to express our significant concerns with two more of the changes made in the proposed regulations: the changes to the religious exemption and the new right to access all evidence obtained.

Access to all evidence obtained

The proposed regulations lay out the right of both parties to access all evidence obtained, even if the school does not use it to determine responsibility:

“Provide both parties an equal opportunity to inspect and review evidence obtained as partof 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, so that each party can meaningfully respond to theevidence prior to the conclusion of the investigation.”

While we uphold the importance of due processes for all parties involved, this change will again have the result of intimidating witnesses and reporting parties. It will also likely result in increased discretion in the evidence that is offered to the investigators – either leaving out critical pieces of evidence, or redacting what is provided to the school. This would significantly undermine the investigation and the truth-seeking process. Furthermore this change will be significantly burdensome on institutions of higher education.

We have no concern with the right of parties to submit evidence, and to review relevant evidencein the institution’s possession, as well as the right to review an investigative report if there is one. This is all considered best practice, and in line with due process protections and New York law.New York’s Education Law 129-B does however offer some critical protections, specifically, access to information regarding prior sexual history and mental health history is prohibited.35 Thisis intended to protect both responding and reporting students’ privacies, and to limit opportunitiesfor retaliation and intimidation.

In the proposed regulations however, no protections whatsoever are offered. If both parties haveaccess to all evidence obtained that is considered “related to the allegations raised”, this couldinclude lengthy communication chains (such as text and email threads), diary and journal entries, hospital and medical records, and more. The results of our research have shown that Cialis is available in the form of yellow pills, which include 20 mg of the active component Tadalafil. When ingested, the active component improves blood circulation, including in the pelvic organs, dilates blood vessels and increases blood flow to the cavernous bodies of the penis.

Consider, for example, a reporting student who was raped by a former intimate partner. Perhaps that victim became pregnant from this assault, and decided to have an abortion. Medical records, a diary entry, and records of text conversations between a friend detailing this experience would beconsidered evidence “related to the allegations.” But this is incredibly private and vulnerable information for an abuser to possess. What if the reporting student’s family is very religious, for example, and the responding student knows this? The threat of intentionally and vindictivelysharing this sensitive information with the victim’s family would be enough to discouragereporting.

The reporting student is now faced with an impossible decision. Should they submit this critical evidence to their institution as part of the Title IX investigation, knowing that the responding student will have access to it? Or should they exclude this important information in order to protect themselves, their safety, and their privacy?

Fear of intimidation and retaliation following a report of sexual violence is common and significant. The reporting student in this example, could reasonably fear that responding student might access this evidence and then use this information (about the abortion for example) to intimidate or retaliate against them for reporting. The accused perpetrator could threaten to tell thevictim’s religious family about the abortion – perhaps leading to family disowning or reduced financial support.

Fear of this type of threat is enough to discourage a reporting student from being forthcoming during the investigative process. Or indeed, discourage any participation in a Title IX process at all.

35 New York State Education Law, Article 129-B, S. 6444., Response To Reports, 5.C.

As such, the victim of sexual assault (sex discrimination) would have their equal right to education curtailed, and the trauma of seeing the reporting student at school every day may lead to the victim having to leave. A 2015 study by Cecilia Mengo and Beverly M. Black shows that 34.1% of students who have experience sexual assault drop out of college.36 This is unacceptable and must be addressed. The regulations should not be contributing to raising this percentage even higher, yet this change likely will.

If a student (reporting or responding) is nervous about sharing certain evidence, they will either have to hire an experienced lawyer to redact the evidence, or simply choose to exclude it. Hiring a lawyer costs money, resources that many low-income students may not have access to, and will also delay the investigation for the institution. This also further creates an inequitable process if one party has the resources for a lawyer to redact the evidence, while the other does not.

This proposed change of allowing both parties to access all related evidence will harm the integrity of the investigative process.

It will also reduce reporting, as students will reasonably fear threats of retaliation and be intimidated from participating fully in the process, or even participating at all. Studies show that campus sexual assault is already vastly under-reported: already, only 12% of college survivors37 and 2% of girls ages 14-1838 report sexual assault to their schools or the police. Any regulations to Title IX should seek to mitigate existing under-reporting of sexual assault, rather than increase it.

Changes to the religious exemption

The proposed rules would allow schools to claim “religious” exemptions for violating Title IX with nowarning to students or prior notification to the Department: rule summary (§ 106.12(b)). This change will take agency away from students in making an informed decision about what type of institution they choose to attend, and will likely increase discrimination against numerous protected classes.

Current rules do allow religious institutions to claim exemptions on religious grounds by submitting a letter notifying the Department of Education. Institutions were required to specifically identify which Title IX provisions conflicted with their religious beliefs. Studies have shown that in the past, claims for affirmation of this exception were relatively rare. A 2016 Kansas Law Review paper by Kif Augustine-Adams found that in the 40 years since Title IX had become law, only 285 religious exemptions requests had been received, and all had been approved.39

While still allowing religious exemptions, this process provided a critical accountability and transparency process, which has now been rescinded. The proposed regulations remove this requirement and would allow institutions to claim this exemption without notice or warning to the Department of Education or to their students. Essentially, schools will be able to claim that theyare justifiably ‘opting out’ of any Title IX requirements whenever they choose. This could even be after a complaint of discrimination has been filed against the institution to the Department of Education.

36 Mengo, Cecilia & Black, Beverly. (2015). Violence Victimization on a College Campus: Impact on GPA and School Dropout. Journal of College Student Retention: Research, Theory & Practice. 18. 10.1177/1521025115584750.
37 Poll: One in 5 women say they have been sexually assaulted in college, WASHINGTON POST (June 12, 2015), https://www.washingtonpost.com/graphics/local/sexual-assault-poll.

38 Let Her Learn: Sexual Harassment and Violence, supra note Error! Bookmark not defined. at 1.39 Augustine-Adams, K. (2016). Religious Exemptions to Title IX. Kansas Law Review, 65, 327-414.

This essentially permits institutions to discriminate against numerous protected classes, and then come up with a justification for their discriminatory actions and behavior after the fact – freeing the institution from any responsibility or liability. This is another change in the proposed regulations that would make institutions of education much less safe for the students who attend them.

The students that would be vulnerable to institutional sex discrimination are not just victims of sexual violence and harassment. This change also permits discrimination against all women and girls, LGBTQIA (Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, and Asexual) students, pregnant or parenting students (especially those that are unmarried), and students who attempt to access contraception options such as birth control or choose (or attempt to) have an abortion. These are all students who should be protected by Title IX – the civil rights statute that seeks to protect access to education from sex discrimination.

This is also in direct conflict with the Department of Education’s current40 and proposed41 rules requiring that each covered educational institution “notify” all applicants, students, employees, and unions “that it does not discriminate on the basis of sex.” By eliminating the letter of request, the Department of Education is making it impossible for students and their families to make informed choices about their schools. Students would not be able to know in advance whether or not their school could or would claim the right to discriminate against them without any liability. By requiring a school to tell students that it does not discriminate while simultaneously allowing it to opt out of anti-discrimination provisions whenever it chooses, the Department is creating a system that enables schools to actively mislead students.

Consider for example, a student who identifies as gay, starting college and quickly finding themselves harassed and discriminated against by a professor on the basis of sex. This quickly begins affecting thestudent’s ability to participate in their educational program – and thus should be a Title IX issue. Let’s say even that the harassment based on sex is “severe” and “pervasive” and has caused the distressed studentto drop out of that class – marking it “objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” The student should go to their Title IX Coordinator and report as instructed by their understanding of their Title IX rights.

What happens if the Title IX Coordinator refuses to do anything? In order to purse some response and require the school to stand up to their declared policy of non-discrimination, the student might move forward to report their institution to the Department of Education for a Title IX violation. At this point, having never advertised this expectation beforehand, and not having disclosed its status anywhere – the institution could claim religious exemption to Title IX.

In this example, the student has been pushed out of educational opportunities, and perhaps even the institution altogether due to sex discrimination – and the school is not liable whatsoever. This goes against the very purpose of the Title IX statute.

LGBTQ individuals already face greater harm and vulnerability to sex discrimination, including but not limited to sexual violence and hate violence. According to the Centers for Disease Control and Prevention, in a 2010 study, it was found that 44% of lesbians and 61% of bisexual women experience rape, physical violence, or stalking by an intimate partner (compared to 35% of heterosexual women.)

40 34 C.F.R. § 106.9(a).
41 Proposed rule §106.8(b)(1).

42 The same study found that 26% of gay men and 37% of bisexual men experience rape, physical violence, or stalking by an intimate partner.

_________________________

Transgender students are at particular risk for a number of reasons. Firstly, transgender individuals are already at a much higher risk of violence and sexual violence. According to a 2017 study by the Association of American Universities, nearly 1 in 4 transgender, genderqueer, gender non- conforming, or questioning students experience sexual violence during their four years of undergraduate education.43 Additionally, a 2011 study found that 78% of transgender or gender non-conforming youth are sexually harassed during grades K-12.44 These numbers show that transgender individuals are very vulnerable to harm from sex discrimination even in educational spaces. This is exactly what the 1972 Title IX statute seeks to protect.

This change does not only affect LGBTQ individuals however. Consider, for example a student who becomes pregnant during college or even high school. This may have been unexpected, and they are now seeking support about what options they have. They may ask a trusted professor or teacher for support, and this professor chooses to shame and blame them, and asks them to leave their class, or perhaps intentionally fails them on a test. In this case, if the student reported this sex discrimination, and the school then claimed that they have a right to discriminate against the student based on claiming a post-hoc religious exemption, the student would have no recourse.

Similarly, remember that Title IX seeks to protect equity in all aspects of education – including for example, athletics and STEM (Science, Technology, Engineering, and Math) fields. A female student could be asked to leave a biology class because of their gender and have no recourse if the school then claimed religious exemption; or a girls soccer team could be disbanded in order to provide more funding for the boys soccer team – and again, this institution (despite obviously violating Title IX) could claim religious exemption and continue to blatantly discriminate.

This proposed change to the religious exemption process will make individuals already vulnerable to sex discrimination in educational spaces and beyond, even more vulnerable and will reduce institutional accountability to their students. By changing the process of requesting religious exemptions in these regulations, the Department of Education is making all students less safe and preventing individuals from making informed decisions about where they choose to pursue an education. The protected classes that Title IX seeks to protect from sex discrimination will be more harmed by this change and students will be pushed out of school, denying them of their right to educational opportunities.

Conclusion

The Department’s proposed rules import inappropriate legal standards into agency enforcement,rely on sexist stereotypes about victims of sexual harassment and assault, and impose procedural requirements that force schools to tilt their Title IX investigation processes in favor of namedaccusers to the detriment of survivors. Instead of effectuating Title IX’s prohibition on sex

42 Walters, M.L., Chen J., & Breiding, M.J. (2013). The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Findings on Victimization by Sexual Orientation. Atlanta, GA: National Center for Injury Prevention and Control, Centers for Disease Control and Prevention.
43 Cantor et. Al. (2017). Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct, Prepared by Westat, https://www.aau.edu/sites/default/files/AAU-Files/Key-Issues/Campus-Safety/AAU-Campus-Climate-Survey-FINAL- 10-20-17.pdf

44 Grant, J. M., Mottet, L. A., Tanis, J., Harrison, J., Herman, J. L., & Keisling, M. (2011). Injustice at every turn: A report of the National Gender Discrimination Survey. Retrieved from The National Gay and Lesbian Task Force: http://www.thetaskforce.org/ downloads/reports/reports/ntds_full.pdf

discrimination in schools, these rules serve only to protect schools from liability when they fail to address complaints of sexual harassment and assault. The New York City Alliance Against Sexual Assault calls on the Department of Education to immediately withdraw this NPRM and instead focus its energies on vigorously enforcing the Title IX requirements that the Department has relied on for decades, to ensure that schools promptly and effectively respond to sexual harassment.

For all of the reasons listed above, the Department of Education should immediately withdraw its current proposal and dedicate its efforts to advancing policies that ensure equal access to education for all students, including students who experience sexual harassment and violence.

Thank you for the opportunity to submit comments on the NPRM. Please do not hesitate to contact Mary Haviland at mhaviland@svfreenyc.org to provide further information.

Sincerely,

Mary Haviland, Esq, Executive Director
Anastasia Gorodilova, Senior Coordinator of Systems and TrainingHeejin Yoon, LMSW, Senior Campus Sexual Assault CoordinatorPaige Bik, LMSW, Intervention Program Manager
Christina Ortiz, MPH, Senior Prevention Coordinator
Ashleigh Andersen, LMSW, Intervention Coordinator

For The New York City Alliance Against Sexual Assault 212.229.0345

32 Broadway, Suite 1101, New York, NY, 10004