NYSCASA Comment Submitted to the U.S. Department of Education Office of Civil Rights Regarding Title IX

On June 10, 2021, NYSCASA submitted the following comment to the U.S. Department of Education Office of Civil Rights in advance of OCR’s virtual public hearing to gather information for the purpose of improving enforcement of Title IX.

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RE: Office of Civil Rights hearing pursuant to Executive Order 14021, Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity – Document Citation 86 FR 27429

The New York State Coalition Against Sexual Assault (NYSCASA) respectfully submits this comment as testimony to inform the Department of Education’s review of regulations, guidance, and other agency actions under Title IX, and to respectfully request changes to the rule entitled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.” NYSCASA previously submitted a comment to the Department in January of 2019 in fervent opposition to the Department’s Notice of Proposed Rulemaking concerning Title IX of the Education Amendments of 1972, as published in the Federal Register on November 29, 2018.

The New York State Coalition Against Sexual Assault (NYSCASA) is dedicated to advocating for survivors and victims of sexual violence across New York State. NYSCASA’s mission is to end all forms of sexual violence and exploitation, and to address the impacts of sexual assault. NYSCASA has over 50 member programs across the state of New York who offer support services to survivors of sexual violence.  We provide support to our member based rape crisis programs through resource development, technical assistance and training and administrative and legislative advocacy.

Changes to the Title IX rule made last year under then-Secretary Betsy DeVos are discriminatory, illegal, and profoundly limit the legal duties of institutions of higher education and K-12 schools to respond to sexual harassment and violence. The changes have created unnecessary and challenging hurdles for students to seek help, preventing schools from addressing many reports of sexual harassment and imposing uniquely burdensome procedures that are not required for any other type of student or staff misconduct. The rule has undermined the progress made over the last twenty years to lessen the effects of sexual harassment in schools, reduce the stigma of experiencing sexual harassment and violence, and improve educational outcomes for student survivors. For these reasons, we are grateful for the opportunity that the Office of Civil Rights is providing to listen to those most impacted as you consider changes to this devastating rule that has made school less safe for girls, women, and gender non-conforming students.

At its very core, The DeVos rule has the effect of discouraging students from reporting sexual assault and other forms of sexual harassment, fostering environments based in fear, not support. The rule is in direct contradiction of the purpose of Title IX as a civil rights law, which is to protect equal access to education. The experience and stress of sexual harassment creates significant barriers for student success in school, further exacerbated when a school does not or cannot respond effectively with support. Impacts on students include serious emotional and mental health problems, such as anxiety, depression, and substance misuse. Students may drop out of school because they do not feel safe or may be forced to leave school due to performance issues related to the trauma. There are financial burdens as well related to student loans, costs of treatment and additional expenses of relocation. Student survivors need support and learning environments free of discrimination.

Restore Protections for Student Survivors

Prior to the DeVos Title IX rules, and since 1997, the Department of Education’s longstanding guidance led to more meaningful action by institutions to address sex-based harassment and support victims, an increase in reporting by victims to their schools and the Department, and greater accountability when institutions failed to comply with Title IX. To restore Title IX’s purpose, the Department must reinstate the following guidance:

  • Clearly define sex-based harassment to include sexual harassment, dating violence, domestic violence, and sex-based stalking and harassment based on sexual orientation, gender identity, gender expression, parental status, pregnancy, childbirth, termination of pregnancy, or related conditions;
  • Define sexual harassment as unwelcome sexual conduct;
  • Require schools to respond to all quid pro quo harassment and any other sex-based harassment that is sufficiently serious to create a hostile environment that interferes with or limits an individual’s ability to participate in or benefit from the recipient’s program or activity;
  • Require institutions to promptly and effectively respond to, take action to eliminate, and prevent the recurrence of sex-based harassment, specifying that:
  • Institutions must address sex-based harassment that may create a hostile environment in their program or activity, regardless of where it occurred;
  • Institutions should respond to harassment that they know or should know about, as well as any sex-based harassment by employees that occurs in the context of the employee’s responsibilities to provide aid, benefits, or services within the institution’s program or activity;
  • To ensure a “prompt” response to sex-based harassment, institutions should be required to provide supportive services and accommodations to the complainant as immediately as possible, but no later than five school days after a report is made;
  • Institutions must take reasonable steps when responding to sex-based harassment (rather than just avoiding a response that is “clearly unreasonable,” which is known as the “deliberate indifference” standard); and
  • An effective response may include restorative justice or other alternatives to traditional student discipline, as long as participation is truly voluntary, all parties are able (and aware they are able) to terminate the alternative resolution process at any time, and those facilitating it are adequately trained to do so.
  • Make clear that states and local entities can provide additional protections beyond those in the Department’s Title IX rule.

Develop Robust Protections Against Retaliation

Title IX prohibits retaliation against those who complain of sex discrimination. Yet student survivors— especially survivors of color, students with disabilities, and LGTBQ survivors—continue to face punishment when they turn to their schools for help. Some are disciplined for rule-breaking that they must divulge to report. Student survivors—primarily those in higher education—have increasingly faced retaliation from their assailants, who file baseless cross-complaints to dissuade and punish victims.

The Department’s regulations should explicitly prohibit these common forms of retaliation and:

  • Define prohibited retaliation to include (but not be limited to):
  • Disciplining complainants for collateral conduct violations that must be disclosed in order to report sexual harassment, dating violence, domestic violence, or stalking; that is disclosed in the investigation (e.g., alcohol or drug use, consensual sexual contact, reasonable self-defense, or presence in restricted parts of campus); or that occurs as a result of the reported harassment (e.g., nonattendance);
  • Disciplining complainants for false reports based solely on the school’s conclusion that there wasn’t sufficient evidence to support a finding of harassment;
  • Disciplining complainants for prohibited sexual conduct in school based on the school’s conclusion that the reported sexual harassment was instead welcomed sexual contact;
  • Disciplining a complainant for discussing the sex-based harassment report; and
  • Disciplining a victim for charges the school knew or should have known were brought by a third party for the purpose of using the disciplinary process to retaliate against a victim of sex-based harassment.
  • Allow institutions to dismiss, without a full investigation, complaints of sexual harassment, dating violence, domestic violence, and stalking that are patently retaliatory (e.g., where a student is reported for sexually assaulting a classmate, insists the contact was consensual, and then, after being found responsible, files a counter-complaint that their victim in fact sexually assaulted them).

Ensure Fair Disciplinary Procedures and School Flexibility

Prior to the DeVos rule, the Department long affirmed the agreed-upon notion that school discipline for sexual harassment must be fair to all involved parties. Yet DeVos’s regulations require unique disciplinary procedures for sexual harassment that differ from other civil procedures. In this regard, new regulations should:

  • Outline general requirements for fairness that flow from Title IX’s equity mandate, and not impose a one-size-fits-all model that may not be effective given the diversity of institutions;
  • Require that schools use the preponderance of evidence standard in determining responsibility for sexual harassment and sex-based harassment, the standard used in civil rights lawsuits more broadly;
  • Undo the current regulation that prevents institutions from considering past statements by parties or witnesses who are not available for cross-examination.

Address Other Forms of Harassment

In addition to sexual harassment, too many students face harassment face non-sexual sex-based harassment, including harassment based on sexual orientation, gender identity or expression, and pregnancy or parenting status, as well as harassment based on other protected characteristics, including race, color, national origin, and disability.

Fortunately, civil rights laws that the Department enforces require funding recipients to address these forms of harassment. We encourage the Department to enforce these protections meaningfully and consistently and to return to its long-standing practice of employing uniform standards for different forms of harassment.

Ensure Fair Campus Conduct Systems

We believe the DOE should remove the requirement for live cross examination during Title IX hearings. Requiring live cross-examination during hearings for Title IX cases, and not for other student disciplinary proceedings, communicates the false message that allegations of sexual violence are uniquely unreliable. This requirement also mimics the criminal justice system more than a campus conduct system. Campus conduct systems exist separately from the criminal justice system and have different goals. Students deserve to access an education free from violence and to engage in the Title IX process, if necessary, without being subject to a quasi-criminal trial.

Furthermore, requiring cross-examination places significant financial burdens on complainants, respondents, and institutions. In schools that cannot afford to provide an attorney as an “advisor of choice” or reimburse students for hiring outside counsel, students have to pay for this expense. Many of our members have witnessed first-hand the inequity that exists when wealthy students have hired attorneys as their advisor of choice for the cross-examination process while low-income students could not. This requirement of the 2020 Title IX Regulations has had a chilling effect on reporting, as it has forced many student survivors to contemplate how reporting will affect them economically in their analysis of whether or not to disclose.

Religious Exemption to Title IX

We remain concerned about institutions’ ability to request an exemption from compliance with Title IX if compliance is in conflict with the institution’s religious tenets. Since 1979, religious exemption to Title IX has been an option for schools throughout the country and has been weaponized in ways that discriminate and deny the rights to pregnant students, non-binary students, transgender students and LGBTQ+ students. As the current rule stands, religious institutions are being assured that they would not be required to claim an exemption from DOE, or give students any notice that they are claiming a religious exemption from Title IX, before they engage in discrimination on the basis of sex, or against LGBTQ students, pregnant or parenting students (including those who are unmarried), and/or students who access or attempt to access birth control or abortion. Schools could come up with a religious excuse justifying their discriminatory action once they are already under investigation for violating Title IX. We urge the DOE to both reinstate and codify into regulations, consistent with years of case law, that Title IX prohibits discrimination based on gender identity and that Title IX protects transgender students from discrimination.

Importance of Community-Based Rape Crisis Centers

There are community-based rape crisis centers in every state and territory, who offer support services to victims and survivors. Rape crisis centers offer valuable expertise in their communities on survivor services and sexual violence prevention. Schools should be encouraged to partner and develop memoranda of understanding (MOUs) with local organizations that have the expertise and community knowledge about how to best meet survivor needs and prevent future sexual violence. They can help schools improve their own policies and procedures, while providing free and confidential services outside of the school context, which is a critical option for student survivors.

New York State Education Law 129B both funds and outlines the ways in which community-based rape crisis organizations can provide prevention education, policy support, and direct services to students, faculty, and staff. Based on the many successful collaborations throughout New York State, we strongly recommend the DOE adopt a similar model of encouraged collaboration on the federal level.

As an organization dedicated to advancing civil and human rights, eliminating violence, and advocating for survivors, the New York State Coalition Against Sexual Assault strongly encourages the Biden-Harris administration to reverse Title IX rule elements that have taken us dangerously backward in our national response to the scourge of sexual violence. We welcome any opportunity to provide additional input and information toward this effort.