To Whom it May Concern,
Thank you for the opportunity to comment on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance. We, the members of the Harvard College Democrats, urge the Department of Education to reconsider its proposed Title IX rules and regulations. We believe these proposed regulations would harm survivors of sexual assault and harassment on college campuses. As an organization of Harvard students who are committed to advocating for the values of equality, opportunity, and freedom, we stand with survivors of sexual assault and harassment and affirm their right to access their education.
Changing the definition of harassment from “unwelcome conduct” to “objectively offensive” will make it much harder for students facing sexual harassment to get help. The requirement that schools can only act to address sexual harassment when it “is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity,” would mean that by the time schools would be legally required to intervene, a student’s access to education may already be irreparably disrupted. We believe the Department of Education should instead adopt the standard set forth in the 2011 Dear Colleague Letter, which says that sexual harassment creates a hostile environment “if the conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program,” which is the standard used in Harvard College’s current Title IX policy. This policy allows the school to address sexual harassment before it denies a student’s access to education such as causing them to drop out of class or school altogether.
The proposed regulations also make it unclear whether schools would be able to investigate claims of sexual assault that happens off campus or on study abroad programs. This is particularly concerning to us as Harvard students, given that much of Harvard’s social life occurs in off-campus spaces, including at final clubs, fraternities, night clubs and bars, and that the majority of Harvard students participate in an international academic program throughout their time here.
Schools should be required to adopt a “preponderance of evidence” standard, not a “clear and convincing” standard, when considering cases of sexual harassment and assault. The clear and convincing standard will make it easier for perpetrators to get away with sexual harassment and assault at universities. The preponderance of the evidence standard, meanwhile, is the only standard that considers equally testimony by complainants and respondents. Without this standard, the system is skewed against survivors, and many will choose not to come forward about their experiences.
Under the proposed rules, schools will only be required to investigate complaints made to individuals who have the “authority to institute corrective measures.” This means that Harvard would have zero obligation to investigate complaints brought to coaches, proctors, and resident tutors. In our community, these staff are the people who students typically trust and feel comfortable confiding in. Not requiring these employees to be mandatory reporters will make it harder to hold Harvard and other universities accountable for the handling of sexual assault on their campuses. It would allow Harvard to once again sweep sexual violence under the rug.
Schools should have the ability to remove accused students from classes or dorms that they share with their accuser even before a disciplinary proceeding occurs when it is clear that the presence of that student will harm the education of the survivor of harassment or assault. At Harvard, dorms and houses are intimate environments in which it is difficult to avoid someone, and transferring requires administrative assistance from the Harvard Title IX office. Often, these interim measures are critical for students to continue their educations without further traumatization as they decide whether to go through a full investigation or wait for an investigation to conclude. If schools need to wait until after a disciplinary proceeding to take action, students will lose access to their education.
We are concerned about a provision in the rule changes that would allow a representative of the accused to “cross-examine” a survivor and witnesses at a live hearing. Live cross examination could be traumatic for survivors, and may discourage them from seeking help or recourse when they have experienced sexual harassment and assault. Instead, schools should be allowed to use a written submission model so that survivors are not forced to recount their traumatic experiences on the spot.
We are also concerned about changing the Department’s rules with regard to Title IX religious exemptions. If these changes are implemented, students may not know whether or not their schools are subject to Title IX when they file a complaint. If a student who files a Title IX complaint is unaware that their school has a religious exemption to Title IX, and are found to be violating the school’s code of conduct, they could be subject to discipline. This would allow for students to be discriminated against based on their sexuality, and denied their right to equal access to education.
The Harvard College Democrats have long been committed to protecting survivors of sexual assault and preventing assault on campus. In April of 2018, we went to the Massachusetts state legislature to lobby for S.2203, a bill that would expand resources on campus to sexual assault survivors and create a network of confidential resource advisors who could help survivors navigate reporting their assault. We believe that the proposed rule changes would be a step away from what we have advocated for in the past. These rules would make college campuses less safe for survivors, and it would make it far easier for perpetrators of sexual and gender-based harassment and assault to avoid being held accountable for their actions.
The proposed rule changes will make it much harder for survivors of sexual assault and harassment to access their education, and for schools to hold perpetrators accountable. For these reasons, the rules should be changed as stated above.
The Harvard College Democrats