January 30, 2019
Secretary of Education
c/o Brittany Bull
U.S. Department of Education
400 Maryland Ave. SW, Room 6E310
Washington, D.C. 20202
Dear Secretary DeVos:
I am pleased to submit these comments on behalf of Connecticut College in response to the U.S. Department of Education Notice of Proposed Rulemaking under Title IX of the Education Amendments of 1972. We appreciate the Department’s efforts to clarify and improve the ways we respond to complaints of sexual misconduct on our campuses. I hope this letter, which summarizes the conversation at our institution, is helpful as you continue to refine your proposals.
Since the Department last issued guidance on this matter in 2011, Connecticut College has developed a judicious set of policies and procedures to address situations of sexual misconduct. Based on that experience, our community expressed concern about three aspects of the proposed changes to the Title IX guidance:
- § 106.45(b)(3): Jurisdiction and Duty to Respond: The Department proposes that schools must dismiss Title IX complaints related to incidents that occur off-campus or outside of institutional programs and activities. This proposal seems to go against the spirit of Title IX, which is to end gender-based harassment and discrimination. Under this rule, it would appear that an instance of sexual assault between two students that occurred at a privately-owned home or a local bar would no longer benefit from the college’s response protocols. This is deeply troubling given what we know about how college students interact and socialize within their locales. To suggest that a violation of policy on our campus is not applicable off-campus could have the effect of increasing off-campus incidents, potentially reducing the safety and security of our students.
- § 106.45(b)(3)(vii): Required Live Hearings with Cross-Examination: There is serious concern about the proposal to mandate live hearings and allow cross-examination between involved parties. This mandate would, without question, make our adjudication processes more closely resemble adversarial court proceedings than educational resolutions. With this change, there would be little to no incentive for complainants, or witnesses, to participate in a process that they expect to be confrontational and potentially hostile. This change would likely create a chilling effect for reporting policy violations, particularly for smaller campuses like ours, where students study, eat, and live together in close quarters for the entirety of their time in college.
- § 106.45(b)(3)(vii): Legal Counsel for Hearings: The proposed regulations allow attorneys to advise parties and to conduct cross-examinations in live hearings on campus. Again, this would convert educational institutions into courtrooms in a manner that campuses cannot practically implement. First, for small campuses in particular, this mandate would place an undue burden on faculty and staff to be well-trained and to spend inordinate amounts of time acting as judges, mediating the conduct of professional attorneys, rather than fulfilling their primary roles as educators. The alternative, it seems, is that colleges would be expected to retain the services of legal experts at considerable financial cost to the institution. Perhaps the greatest concern about the involvement of attorneys, however, is the inevitable inequity that could result from parties having vastly different socioeconomic means to secure legal representation. The colleges, again, would bear the financial burden of trying to ensure an equitable process, equity being one of the key aims of Title IX legislation.
At Connecticut College, we have made a commitment to educating our community about gender-based discrimination and sexual misconduct; to providing robust support to survivors; and to ensuring that our policies and procedures are fair to all. We have well-established practices—as well as one of the most comprehensive prevention and awareness programs in the country—and we strive to treat every student with compassion, integrity, and respect. We are confident that our comprehensive approach, which demonstrates sensitivity to the complexity of Title IX, is possible on all campuses.
Thank you again for providing us the opportunity to comment on the proposed regulations. We respectfully ask you to address the concerns we have raised and to craft guidelines consistent with our student-centered educational mission.