January 30, 2019 

Secretary Betsy De Vos
c/o Brittany Bull
U.S. Department of Education
400 Maryland Avenue SW, Room 6E310
Washington, DC 20202

Dear Secretary De Vos,

Amherst College1 appreciates the opportunity to submit the following comment to the proposed amendments to 34 CFR Part 1062 relating to Title IX of the Education Amendments of 1972 ("Title IX").

Introduction

Amherst is deeply committed to promoting a culture that is free from sexual misconduct and to repairing the harm it causes when it occurs. The College has enacted policies and practices that encourage the disclosure of harm and the provision of support to all those in need. Our policies are fundamentally fair. Amherst's Title IX work is a profound statement of our commitment to all members of our community.

We appreciate the Department's effort to review current Title IX regulations, particularly its focus on fairness. But many of the Proposed Rules miss the mark. As described in detail below, Amherst College is concerned that certain elements of the Proposed Rules may stifle disclosures, inhibit the provision of needed support, undercut fairness, and ultimately harm complainants, respondents, and our community.

Background

Amherst’s Commitment to Addressing Sexual Misconduct With Care, Equity, and Fundamental Fairness:3

In the summer of 2012, Amherst College fostered robust community discussions regarding the topic of sexual misconduct. These discussions included students, staff, faculty, administrators, and members of our Board of Trustees. That work accelerated during the 2012-13 academic year, when I formed three committees aimed at addressing the campus environment, resources, and recent history at the College related to these matters.

That same year, the College’s Title IX Committee—composed of students, faculty, and staff—collectively crafted a revised College Sexual Misconduct Policy, one that was thoughtful, reflected Amherst’s community ideals, and comported with Title IX. The Committee’s conscientious work also included developing a new process to resolve allegations of sexual misconduct against Amherst students—a process significantly informed by student input and developed with an eye toward the ethos and particular needs of the Amherst community. Amherst’s process is fundamentally fair to both complainants and respondents and is consistent with numerous provisions of the Proposed Rules in ways that include the following:

Opportunity to Fully Provide, Receive and Respond to All Known Relevant Information

  • Respondents receive sufficient details to know the charges they are facing. If a formal complaint is insufficiently detailed, it is rejected by the Title IX Coordinator. If new allegations emerge during the course of the investigation, the respondent is notified of those new allegations. 
  • The respondent receives a written copy of the complaint and has the opportunity to review it before submitting a written response. The complainant receives a copy of the respondent’s response.
  • Throughout the investigation, both parties are afforded multiple opportunities to provide information.
  • The investigator shares all relevant information with the parties, who then have the opportunity to respond.
  • Both parties have the opportunity—prior to a hearing—to request the inclusion of additional evidence that was not otherwise brought forward during the investigation.
  • During the hearing, both parties have full and equal opportunity to present their cases through opening statements, closing statements, and questioning of all witnesses and the investigator.
  • The complainant and respondent have the opportunity to question each other by submitting questions through the chair of the hearing board, who does not vote on the outcome of the proceeding.

Transparency of the Process

  • Both parties are afforded multiple opportunities to meet with the Title IX Coordinator (with an advisor present, if they choose) to discuss and ask any questions about the process.
  • Both parties receive a written summary of the alleged policy violations being investigated.
  • Both parties receive advance notice of the hearing, including the date and time, as well as the names of the hearing board members.

Comprehensive and Neutral Investigation

  • The college retains a skilled, neutral, and trained external investigator to collect relevant and available information, including information that could be exonerating or incriminating.
  • The investigator compiles relevant information into a comprehensive investigative report that is shared with both the complainant and the respondent at least seven days prior to the hearing.
  • Both parties have the opportunity—prior to the hearing—to raise concerns that one or more particular hearing board member(s) may be biased against that party.
  • The hearing board, not the investigator, makes all determinations of credibility, responsibility, and sanctions.

In order to promote continued community involvement in shaping our work and culture, Amherst College regularly solicits feedback through climate surveys, focus groups, information sessions, and a Title IX Review Committee composed of students, faculty, and staff. In addition, Amherst has devoted significant effort and resources to preventing sexual misconduct, educating the campus community about our process and about issues of sexual respect, and responding to allegations of sexual misconduct. This work has included the 2013 hiring of both an experienced civil rights attorney as the College’s first full-time Title IX Coordinator and an experienced sexual respect educator.

Simply put, the issues related to grievance procedures that you and your staff apparently identified during your listening sessions,4 and which seemingly informed the Proposed Rules, fail to take into account or accurately reflect the existing policies and practices of institutions like Amherst. These policies provide care, equity, and the type of notice and opportunity to be heard that undergird a fair process. Amherst and other institutions should be able to continue to listen to and meet the needs of their campus communities while also maintaining equitability, just as they now do.

As noted above, Amherst strongly believes that standards are necessary to ensure that colleges and universities are taking actions to eliminate sexual misconduct and responding promptly and fairly when sexual misconduct is reported. Where existing institutional policies and practices, including those at Amherst, already meet and exceed key measures of fundamental fairness, however, there is no reason for the Department to wield the blunt force of federal law to impose elements of adversarial courtroom-style adjudications solely upon matters involving allegations of sexual misconduct.

The Proposed Rules needlessly require the adoption of more adversarial processes. Some of the Proposed Rules lack the type of clarity that complainants and respondents5 deserve and that institutions need. Other Proposed Rules are internally inconsistent and would therefore put institutions in significant Catch-22s that could ultimately harm the parties. Many of the Proposed Rules would micromanage the details of institutional grievance procedures in ways that are unmatched with respect to other civil rights laws enforced by the Department while undercutting the autonomy of both complainants and respondents. And the Proposed Rules would impose obligations beyond those applicable to even criminal proceedings in the U.S. legal system. For these reasons, and in light of our history and experience, Amherst College respectfully offers its comments here, in numerical order by Proposed Rule, on certain elements of the Department’s Proposed Rules. Additionally, we were offered an opportunity to provide feedback on, and we endorse, many of the comments submitted by the Association of Independent Colleges and Universities in Massachusetts, of which we are a member.

Amherst College’s Comments on Specific Proposed Rules

Proposed Rule § 106.44(b)(2) – Required Complaint Filing by Title IX Coordinator

When a recipient has actual knowledge regarding reports by multiple complainants of conduct by the same respondent that could constitute sexual harassment, the Title IX Coordinator must file a formal complaint.

Amherst’s Comment on Proposed Rule § 106.44(b)(2)

Amherst opposes Proposed Rule § 106.44(b)(2) because it: 1) would discourage reporting; 2) could undercut fairness to respondents; and 3) is inconsistent with Proposed Rule § 106.45(b)(1)(iii) and Proposed Rule § 106.44(b)(2)(i)(B) regarding the avoidance of conflict of interest or the appearance of bias by the Title IX Coordinator.

A proper analysis of whether or not to take the significant action of filing a formal complaint against a member of our community includes careful and comprehensive consideration of many factors, such as: 

  • the content, timing, and level of detail of the reports;
  • the specific behavior(s) alleged;
  • whether or not the reporting party (or, if different from the reporting party, the person who reportedly experienced sexual misconduct) is willing to cooperate, participate, and/or have their names and experiences detailed in a grievance; and
  • whether or not the institution believes that options other than a formal complaint would be more effective in addressing the reports.

The Proposed Rule replaces this careful analysis with a rote legal requirement that wholly prevents an institution from considering anything except the number of reports received. In doing so, this Proposed Rule will discourage complainants from coming forward by undercutting their autonomy to participate in the process as they need and want, and will potentially place respondents in the unfair situation of being thrust into a process without knowing basics details of the allegations they face. In this way, this Proposed Rule is a recipe for failure, as is borne out by hypotheticals:

Suppose a Title IX Coordinator receives two anonymous reports that student Pat Doe has sexually assaulted two community members on campus, neither of whom are named in the report. Neither report specifies any details such as the date or location of the alleged assaults or the particular behavior that Pat allegedly engaged in.

The Proposed Rule would require the institution to file a complaint even when it has none of the “sufficient details” anticipated by Proposed Rule § 106.44(b)(2)(i)(B), arguably violating the most basic principle of fundamental fairness: namely, that a person facing allegations should have enough information about the allegations against them to be able to meaningfully respond.

Just as the Proposed Rules should not force a respondent to face a threadbare complaint filed by an institution, they should not deter individuals who have experienced sexual misconduct from coming forward out of fear that: 1) the institution would be required to ascertain their identity even if they wished to remain unnamed; and/or 2) they would be forced—against their will—to participate in a grievance process.

As noted below, Amherst College supports Proposed Rule § 106.45(b)(1)(iii), which would require “that any individual designated by a recipient as a coordinator, investigator, or decision-maker not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.” As currently written, Proposed Rule § 106.44(b)(2) is inconsistent with Proposed Rule § 106.45(b)(1)(iii) because it inserts the Title IX Coordinator into the very process that they are charged with overseeing. This would have the effect of creating the precise conflict of interest (and potential bias against the individual respondent) that would rightfully be prohibited by Proposed Rule § 106.45(b)(1)(iii).

Amherst’s Recommendation

  • The Department should aid, rather than hinder, both the autonomy of complainants and the need for respondents to know the basic details of the charges they face.
  • The Department should avoid undermining the nuanced decision-making process that institutions such as Amherst engage in when determining whether to initiate complaints against members of their communities.

Proposed Rule § 106.44(e)(1) – Definition of Sexual Harassment

Sexual harassment means:

(i) An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;

(ii) Unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or

(iii) Sexual assault, as defined in 34 CFR 668.46(a).

Amherst’s Comment on Proposed Rule § 106.44(e)(1) – Definition of Sexual Harassment

Amherst supports Proposed Rule § 106.44(e)(1)(i) and Proposed Rule § 106.44(e)(1)(iii), which define so-called “quid pro quo” sexual harassment and sexual assault, respectively, as sexual harassment that is prohibited under Title IX.

Amherst opposes Proposed Rule § 106.44(e)(1)(ii) because it imposes a definition of sexual harassment (e.g., “severe, pervasive, and objectively offensive” – emphasis added) that is much narrower and more restrictive than well-settled case law on the subject (specifically under Title VII of the Civil Rights Act of 1964).6,7 Furthermore, Amherst opposes the Department’s use of the ambiguous phrase “effectively denies a person equal access to the recipient’s education program or activity” for multiple reasons, not least of which is that it appears to condition the definition of sexual harassment on a particular complainant’s ability or not to participate in education or activities, rather than on the characteristics of the unwelcome conduct itself.

Equally problematic, Proposed Rule § 106.44(e)(1)(ii) appears to misconstrue the existing Supreme Court standard establishing when institutions may be held liable under Title IX8 as the standard for establishing when behavior constitutes unlawful sexual harassment. In doing so, it appears to create a critical Catch-22: the more effectively an institution provides supportive measures to a complainant (thereby preserving or restoring the complainant’s access to education programs or activities as rightfully required by Proposed Rule § 106.44(b)(3)), the less likely it is that the behavior alleged by the complainant will qualify as “sexual harassment” (because the less likely it will be that the complainant has been “effectively den[ied]… equal access to… [an] education program or activity”). Such a reality could leave complainants with an untenable choice: seek critical supportive measures or seek formal resolution of the sexual harassment that has created the need for the supportive measures in the first place. Such a choice is anathema to an Equal Educational Opportunity statute.

Amherst’s Recommendation

  • The Department should retain Proposed Rule § 106.44(e)(1)(i) and Proposed Rule § 106.44(e)(1)(iii).
  • The Department should modify Proposed Rule § 106.44(e)(1)(ii) so it more closely matches the definition of sexual harassment used under well-established case law, particularly case law under Title VII.
  • The Department should delete or substantially clarify the requirement that sexual harassment must “effectively [deny] a person equal access to the recipient’s education program or activity.” Moreover, the Department should specify that receipt of supportive measures would not disqualify a claim of sexual harassment under the Department’s definition.
  • The Department should explicitly state within any final rules (rather than simply within the executive summary of the Proposed Rules) that institutions retain the discretion to address behaviors that fall outside the new definition of “sexual harassment” in accordance with any other applicable policies and/or procedures.

Proposed Rule § 106.45(b)(1)(iii) – Neutrality of Title IX Coordinator

“… any individual designated by a recipient as a coordinator, investigator, or decision-maker not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.” Amherst’s Comment on Proposed Rule § 106.45(b)(1)(iii)

Amherst’s Comment on Proposed Rule § 106.45(b)(1)(iii)

Amherst supports Proposed Rule § 106.45(b)(1)(iii) because it correctly states that a Title IX Coordinator’s role is to be neither for nor against any particular individual or class of individuals but rather to oversee an equitable, fair process.

Amherst’s Recommendations

  • The Department should retain Proposed Rule § 106.45(b)(1)(iii).

Proposed Rule § 106.45(b)(3)(vii): Live Hearing; Cross-Examination by Advisor

For institutions of higher education, the recipient’s grievance procedure must provide for a live hearing. At the hearing, the decision-maker must permit each party to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at a hearing must be conducted by the party’s advisor of choice, notwithstanding the discretion of the recipient under subsection 106.45(b)(3)(iv) to otherwise restrict the extent to which advisors may participate in the proceedings. If a party does not have an advisor present at the hearing, the recipient must provide that party an advisor aligned with that party for [sic] to conduct cross-examination.  

Amherst’s Comment on Proposed Rule § 106.45(b)(3)(vii) – Live Hearing

Amherst is concerned about and opposes the live-hearing requirement articulated in Proposed Rule § 106.45(b)(3)(vii).

First, Amherst expresses concern that the live-hearing requirement in Proposed Rule §
106.45(b)(3)(vii) exceeds the bounds of the Department’s authority. In reacting to the relatively recent expressions of concern (rightful or not) regarding the handling of allegations of sexual misconduct on college campuses, the Department should not regulate allegations of sex discrimination differently than the Department regulates allegations of any other form of discrimination under its purview. Neither Title VI of the Civil Rights Act of 1964 (addressing discrimination based on race, color, and national origin), the Age Discrimination Act of 1975 (addressing discrimination based on age), Section 504 of the Rehabilitation Act of 1973 (addressing discrimination based on disability), nor Title II of the Americans with Disabilities Act of 1990 (also addressing discrimination based on disability) include any requirement that allegations of discrimination be resolved via a live hearing, much less one with cross-examination. By imposing these procedural requirements upon allegations of sexual discrimination and harassment only, the Department needlessly subjects such allegations to differential treatment, while simultaneously undermining the principle that all forms of discrimination are invidious.

Additionally, Amherst opposes the Proposed Rule’s requirement that the institution conduct a live hearing to the extent that the requirement conflicts with well settled law regarding an employer’s obligations under Title VII9 and constitutes an unjustified infringement on at-will employment.

Amherst’s Comment on Proposed Rule § 106.45(b)(3)(vii) – Cross-Examination by Advisor

Amherst opposes the proposed requirement that “…cross-examination at a hearing must be conducted by the party’s advisor of choice…” because it: 1) is unnecessarily confrontational; 2) goes well beyond what is necessary to address the perceived concerns the Department has identified; 3) exceeds the Department’s authority; 4) substitutes the Department’s paternalistic judgment for the autonomy of complainants and respondents; and 5) lacks solutions to the very real issues it creates.

The ability of parties to respond to the other’s account of events is important to a fair process; it need not, however, be accomplished by adversarial oral questioning by a third party. Amherst’s Sexual Misconduct Adjudication Process, for instance, provides opportunities for the parties to question each other through the non-voting chair of the hearing board. In our process, the parties submit questions that they wish to ask the other party to the chair of the hearing board by means of a private, electronic chat and the chair determines if the question is relevant and otherwise permissible under our policy. If it is, the chair reads the question—verbatim—in a neutral tone to the other party. Parties are able to ask as many questions as they wish, subject to this process. The parties are permitted to directly question witnesses and the investigator.

This method of asking questions through the chair mitigates the inherently adversarial quality of a hearing model while upholding and fostering the fundamental fairness of allowing a party to test the other party’s testimony. Advocate-style cross-examination significantly escalates the very real emotional toll on both complainants and respondents; this is simply not required by an Equal Educational Opportunity statute and is not necessary to achieve fairness. As with our concern about the live hearing requirement, it is notable that no other civil rights law overseen by the Department requires that allegations be resolved through a process requiring cross-examination, much less cross-examination conducted by an advisor, including an advisor who may be a skilled trial lawyer.

Furthermore, the Proposed Rule fails to take into account the significant practical complications that would arise from such a requirement, such as: 

  • some institutions may have no capacity (whether in terms of financial resources, personnel resources, or expertise) to provide such an advisor;
  • if the institution provides an advisor who is a faculty or staff member, students face the prospect of being subjected to adversarial questioning by a person who may at some point teach or provide other services to the student (this is particularly true at smaller schools with an open curriculum such as Amherst);
  • institutions that provide an advisor or attorney who is “aligned with” a student may face claims in the nature of malpractice or ineffective assistance of counsel, where a student later expresses dissatisfaction with the services provided; and
  • requiring advisors to have an active role in even this limited part of the process will create either actual or perceived inequities between the parties based on the parties’ respective financial resources.

Equally concerning is the Department’s imposition of its will to the exclusion of the autonomy of complainants and respondents. By mandating that cross-examination be conducted by an advisor, the Proposed Rule removes the opportunity for complainants or respondents to participate in this important part of the resolution process—without exception. Experience has shown that not all parties choose to work with an advisor; even those who do utilize an advisor sometimes elect for that person to provide empathetic support and advice rather than to actively assume control of that party’s participation in the process. The mandatory nature of Proposed Rule §106.44(b)(3)(vii) indicates that even if a party chooses not to work with an advisor, the institution would be required to foist one upon them for purposes of conducting cross-examination against the other party. Indeed, requiring a party to have a third party work on their behalf is unparalleled in our legal system; even criminal defendants are able to represent themselves pro se without the Court requiring them to use counsel to conduct their cross-examinations. The appropriate obligation for institutions should be to educate parties about their opportunities in the process so that parties are positioned to make informed personal decisions. The Department should not mandate a process that would upend this.

Amherst’s Recommendations 

  • The Department should not require live hearings because it lacks the authority to do so. Institutions should retain the discretion to utilize live hearings in consultation with their campus communities.
  • The Department should neither require nor permit that cross-examination be conducted by a party’s advisor.

Proposed Rule §106.45(b)(4)(i) – Standard of Evidence

The decision-maker(s), who cannot be the same person(s) as the Title IX Coordinator or the investigator(s), must issue a written determination regarding responsibility. To reach this determination, the recipient must apply either the preponderance of the evidence standard or the clear and convincing evidence standard, although the recipient may employ the preponderance of the evidence standard only if the recipient uses that standard for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction. The recipient must also apply the same standard of evidence for complaints against students as it does for complaints against employees, including faculty.

Amherst’s Comment on Proposed Rule §106.45(b)(4)(i) – Standard of Evidence

Amherst College opposes Proposed Rule §106.45(b)(4)(i) because the Department lacks the authority to directly or indirectly prescribe a standard of evidence by which institutions of higher education must resolve allegations of sexual harassment. Similarly, the Department lacks the authority to impose upon institutions a requirement that grievance procedures for students, faculty, and staff all utilize the same standard of evidence for allegations of sexual harassment.

Amherst’s Recommendation

  • The Department should not directly or indirectly prescribe a standard of evidence by which institutions must resolve allegations of sexual harassment

Conclusion

Our response to sexual misconduct determines whether individuals come forward; whether those that need help request it; and whether complainants and respondents maintain trust in the policies that will guide what is next for them. We know that some complainants remain silent because they fear the process. We know that when students fear coming forward, they may not seek out the help they need. We know that both complainants and respondents deserve a fair process. When respondents do not believe in the fairness of the process, they too may not seek out the help they need. Amherst College’s Title IX work supports every member of our community, unless and until our fair process separates them from our community. Amherst College believes that certain provisions of the Proposed Rules may harm our community. They may create roadblocks to disclosures, hinder those in need from seeking the assistance they deserve, and undermine, rather than bolster, fundamental fairness.

For all of the reasons outlined in this document, we strongly urge the Department to reconsider the Proposed Rules.

Sincerely, 

Biddy Martin
President 

Notes

 

1 Amherst College (“Amherst” or the “College”) is a private, co-educational liberal arts institution located in Amherst, Massachusetts. Amherst annually enrolls approximately 1,850 students, all undergraduates. Amherst College receives federal financial assistance and is, therefore, considered a recipient institution that is covered by, and responsible for adhering to, Title IX.

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2 Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 83 Fed. Reg. 61462 et seq.  (proposed Nov. 29, 2018) (to be codified at 34 C.F.R. pt. 106) (the “Proposed Rules”).

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3 The Proposed Rules frequently reference the concept of “due process.” As noted in the Proposed Rules, “due process” is a constitutional guarantee that applies to public institutions, not private institutions like Amherst (Proposed Rules at 61472).

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4See  Proposed Rules at 61464.

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5 Consistent with the Proposed Rules, in this document we use the term “complainant” to mean an individual who has reported being the victim of sexual misconduct or on whose behalf the institution has filed a formal complaint; we use the term “respondent” to mean an individual who has been reported to be the perpetrator of sexual misconduct.

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6 See, e.g., Meritor Sav. Bank, FSB v. Vinson,  477 U.S. 57, 67-68 (1986) (requiring that for sexual harassment to be actionable, it must be unwelcome and sufficiently severe or  pervasive to alter the conditions of the victim’s employment and create an abusive working environment); Harris v. Forklift Sys., Inc ., 510 U.S. 17, 21-22 (1993) (“Conduct that is not severe or  pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or  abusive—is beyond Title VII’s purview”) (emphasis added); Clark Cty. School Dist. v. Breeden, 532 U.S. 268, 270 (2001) (holding that a court looks at the totality of the circumstances to determine if the harassment was sufficiently severe or pervasive to alter the conditions of employment).

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7 Amherst recognizes that in the executive summary of the Proposed Rules the Department “emphasizes that a recipient remains free to respond to conduct that does not meet the [Proposed Rules’] definition of sexual harassment, or that did not occur within the recipient’s program or activity, including by responding with supportive measures for the affected student or investigating the allegations through the recipient’s student conduct code” (Proposed Rules at 61475). However, Amherst notes the complexity of creating dual systems within the conduct process—one that falls under the Department’s narrow definition of sexual harassment, and one for what may be the same conduct, but which may fall outside the scope of the strict definition (because, for example, the conduct occurs in an off-campus location that is not owned or operated by the College).

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8 See Davis v. Monroe Cty. Bd. of Educ. , 526 U.S. 629, 650 (1999) (“We thus conclude that funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they had actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits of the school.”).

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9 The Proposed Rules would guarantee that at-will employees at educational institutions covered by Title IX receive a different and more robust process in a sexual harassment grievance than they would be entitled to under Title VII in a non-educational workplace.

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