Fighting for Women's Equality

Comment Guide: Speak Out Against Title IX Regulations

December 6, 2018 | by

Stand with student survivors & speak out against the Trump Administration’s proposed changes to how schools must address sexual violence.

Welcome to Equal Rights Advocates’ Guide for submitting public feedback in an official comment to the Department of Education on potential new regulations to Title IX. Proposed by the Trump Administration, the regulations would change how schools are required to handle incidents of sexual harassment and assault, making it much harder for survivors to come forward to seek safety. If these regulations go into effect, they would apply to nearly every school that receives federal funding across the country — K-12 schools, colleges, and universities —requiring them to implement practices that would re-traumatize student survivors and stack the system against them.

Why should you use a Guide?  The Comment process unfortunately is not user-friendly, which is why we have provided a Guide. Please be aware that it may take some time for you to prepare an effective comment, but know that it is worth it to protect our students and stand up for survivors!

To see a list of the proposed changes, go here.

The proposed regulations have not gone into effect yet, and there is a 60-day period when the public can provide feedback by submitting official comments. That means you have until Jan. 28, 2019 to submit a comment.

Ready to comment? Go here. 

 

In this Guide, you’ll find:  

(Click a link to jump to a section.)

IntroductionWhat is Notice & Comment?

Instructions: How to submit a comment

Tips: How to write an effective comment

Citations: So you can cite to specific sections of the proposed regulations that you refer to in your comment

Glossary: To explain relevant wonky lawyer terms

Samples Comments: To give you ideas of how you could structure your own comment

Data Guides: Include statistics and facts in your comment, using these data guides from our ally organizations End Rape on Campus and National Women’s Law Center 

 

Introduction: What is Notice & Comment?

When a federal agency officially proposes a new, legally binding rule or regulation, the agency must first notify the public of the new proposed rule(s) (“Notice”), and then solicit public feedback (“Comment”).  A rule or regulation tells the public how the agency expects an existing law to be interpreted, therefore binding institutions and people responsible under that law to act in certain specific ways.

In this case, on November 16, 2018, the U.S. Department of Education announced an official Notice of Proposed Rulemaking (NPRM) to notify the public it was proposing a new regulation to Title IX regarding how schools will be required to address sexual harassment and sexual assault. The official Comment period then opened two weeks later, on November 29.

The proposed regulation would be disastrous for survivors and students if put into effect. It would create additional barriers to intimidate survivors into remaining silent rather than reporting, would remove current protections for student survivors who do come forward, and would endanger students at colleges, high schools, and elementary schools across the country.

As opposed to the Title IX guidance issued by previous Administrations (for example under Presidents G.W. Bush and Obama), this proposed regulation would be legally binding, making it even more official for schools, carrying greater weight if they do not comply. If the proposed regulation becomes law, schools that do not comply will risk being found in violation of Title IX. That means, for instance, a university could potentially lose its federal funding if it doesn’t require students who report sexual assault to submit to “live hearing”-style mediation, including cross-examination by their rapist’s chosen “adviser” (an attorney or other representative, such as an angry parent or friend). If a student does not want to be cross-examined, the school will not be able to take their account of the incident into consideration at all.

The good news is:

  • Each of us has an opportunity to officially object to the proposed regulation.
  • The Department of Education is required to solicit feedback on its proposal, and then must adequately consider and address all legitimate arguments raised in the comments when issuing its final ruling.
  • If it does not, a court could challenge the regulation, or order it to be thrown out altogether.

This is why we need to submit as many well-researched comments as possible. If your comment identifies data or makes legal arguments which the Department ignores or fails to address, the regulations could be challenged in court to stop them from being implemented.

The Comment period officially opened Nov. 29. We now have 60 days to speak out and provide feedback by submitting official comments through the government’s Federal Register website. This timing is likely deliberate. The Department is banking on us not wanting to deal with this during the holidays, or for students, while on winter break. Even through their feedback process, they are trying to silence and ignore students, survivors, and their advocates.

Anyone can submit a comment, but certain comments will be given higher priority than others, and the Department will be looking for reasons to disregard oppositional comments. That’s why we recommend using our Guide to draft your comment, as well as resources from the National Women’s Law Center and Know Your IX.

To begin drafting an effective and powerful comment that the Department will have to address or respond to, please use our Guide below.

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The Goods: YOUR GUIDE TO SUBMITTING A COMMENT

Instructions

1.  We recommend reading our Tips for Writing an Effective Comment first (below).

2.  If you are comfortable reading legal documents and want to read through the Proposed Regulation to identify your own areas of concern, the proposed regulation can be found online here. Otherwise, you can read our summary of the changes here.

3.  Begin drafting. If your comment will be longer than 5,000 characters (including spaces), you’ll have to send it as an attachment. Otherwise, you can use our form type directly into the Federal Register comment box, or copy and paste.

4.  Write a brief introduction of yourself, including, if relevant, your profession, identity, and/or experience in relation to the subject matter. (Student, parent, survivor, lawyer, advocate, teacher, coach, concerned citizen, etc.) If you have experience with the Title IX complaint process, and you’re comfortable sharing your story, that may be important and powerful information to include.

5.  It’s important for every comment to include objective information such as cited statistics. You can back up your argument using facts and statistics from these great data guides from End Rape on Campus and the National Women’s Law Center.

6.  We recommend organizing your comment into sections with subheadings, addressing  specific parts of the proposed regulation, especially the parts you find most concerning. It’s best if each section includes a few specific “objective” statements, statistics or facts.

7.  When your comment is ready to submit, use our easy comment submission tool, provided by End Rape on Campus, and Know Your IX. Click here.

8.  Or, submit directly through the Federal Register here: https://www.federalregister.gov/documents/2018/11/29/2018-25314/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal  Click the big green button at the top that says “Submit a Formal Comment.” Either copy and paste your text into the comment box, or attach it as a file attachment.

9.  Submit your comment, and encourage others to do the same! Share our guide: bit.ly/ERAguide

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Tips for Writing an Effective Comment

  • Make it your own. The reviewers will take original comments (written by the individual) more seriously than template comments that are obviously copied and pasted by many different people.
  • Make it substantive. Your comment can be any length, but comprehensive comments that thoroughly address an issue or specific issues are more likely to be taken seriously. For example, one well organized, detailed comment with cited facts and statistics is more effective than 100 comments that say “I believe survivors and support Title IX!” However, if you are not able to upload a file (i.e. PDF or Word document), you must limit your comment to 5,000 characters, including spaces (about 1.5 – 2 pages of text).  If you would like to write a longer comment, and you are able to attach a PDF or Word document, there is no character limit.
  • Make it “objective.” Comment reviewers favor hard data over narratives. If you do include relevant personal experiences, we recommend backing up your conclusions with facts or statistics. You can find some very useful facts and statistics in this Data Guide from End Rape on Campus and this resource from the National Women’s Law Center.
    • Example: If you write about how you faced many barriers as a student trying to report sexual harassment at your school, and you’d like to suggest that the federal government should be making it less daunting for students to come forward, you could include a statistic about the estimated percentage of students who choose not to report after being harassed. We are all angry about these regulations. That’s likely why you’re writing a comment. To make sure your comment accepted for review, do not use curse words, and don’t personally attack a particular political party, the Department of Education as a whole, or a particular Department employee.
  • But own your expertise and identity. If you are a lawyer, use legal arguments to ensure the Department takes your comment seriously. If you’re a doctor, write about the health impacts sexual harassment or assault can have on young people. If you are a student, parent, survivor, social worker, etc., write from your personal experience about how the proposed regulation would or could negatively affect you or the people in your life (again, backing up parts of your narrative with data-driven facts).
  • Be specific. Address specific parts of the proposed regulation whenever possible, using the appropriate citation to the document itself, and direct quotes. (We know most people do not have time to review the entire 144-page document, so we have listed some key portions below, with their citations.) Using and citing statistics and facts from trusted sources will help ensure that your comment is considered “legitimate” by comment reviewers and taken seriously. The more points you raise about ways a specific part of the regulation will negatively impact students and/or educators, the more “legitimate” arguments the Department will have to address in their response to public feedback, and the more likely it will be that either the agency will have to change a dangerous portion of their proposal, or a court will strike down part (or all) of the regulation.
  • Cite your sources. When writing about a specific part of the regulation, cite and quote the source document when possible. (See “Citations” below for correct citations of key portions.) When listing facts and statistics, be sure to cite where you got your information from (including the entity that originally provided the information, the year the information was released, and the name of the study or report when possible).
  • Be organized. Break your comment into sections with subheadings. In many cases, contractors are hired to read, summarize, and categorize public comments by issue/topic. If you want your point on a certain issue to end up in the right place in this summary, it helps to label each of your sections by issue or specific part of the proposed regulation you’re addressing.
  • Be strategic. Address counter-arguments and opposing views, and suggest alternatives, whenever possible. Alternative ideas can come from previous Title IX guidance, from alternative systems that seem to work at other entities (like corporate policies on sexual harassment), or can simply be proposing doing away entirely with a specific part of the regulation.

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Citations

Citations to proposed regulation source document, by topic

§ = One “Section” of the regulation

§§ = Multiple “Sections” of the regulation

  • Required Mediation: § 106.45(b)(6)
  • Cross-examination: § 106.45(b)(3)(vi)-(vii)
  • Narrowed duty to report: (§§ 106.44(a), 106.30)
  • Off-campus assault and harassment:§§ 106.30, 106.45(b)(3))
  • Narrowing definition of harassment: §§ 106.30, 106.45(b)(3))
  • Deliberate indifference: §§ 106.44(a), (b)(1)-(4)
  • Supportive measures: § 106.30
  • Standard of proof: § 106.45(b)(4)(i)
  • Religious exemptions: § 106.12(b)
  • Unspecified timeframes: § 106.45(b)(1)(v)
  • Presumption that survivors are lying: § 106.45(b)(1)(iv)
  • Unequal grounds for appeal: § 106.45(b)(5)
  • Mutual no-contact orders: § 106.30

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Glossary

Relevant definitions

  • § – “Section” of the regulation document (followed by section number)
  • §§ – “Sections” of the regulation document (followed by section numbers)
  • Mediation – A process that brings both “parties” together to discuss their dispute with the assistance of an impartial third party, with the goal of reaching some kind of agreement or reaching an agreement or settlement that both parties can accept.
  • Respondent – A person against whom the complaint has been made, i.e. the person being “accused” of misconduct.
  • Complainant – A person choosing to file a complaint, i.e. the survivor who reports sexual harassment or assault and files a Title IX complaint with their school. Can also be called “Reporting Party.” (Note that sometimes the reporting party is the actual victim of the alleged act, and sometimes they are not the actual victim of the alleged act, as anyone can report an incident.)
  • Presumption – Base-level assumption. i.e., presumption that survivors are lying means school officials must take action or approach a complaint from a standpoint of assuming the survivor is not telling the truth, and that the accused student is innocent.
  • Cross-examination Interrogation or questioning by the opposing party’s chosen representative. i.e., The respondent’s representative (attorney or some other person, such as an angry parent or friend), could cross-examine the survivor, asking difficult, potentially re-traumatizing questions about the incident(s) or accusatory questions about the character or history of the complainant (e.g., How many people have you had sex with? You are an athlete, couldn’t you have fought him off?).
  • Duty to report – When a specific person is required to report to a higher-up when they are told about, observe, or learn about a specific type of misconduct, incident, or behavior.
  • Deliberate indifference – Conscious or reckless disregard of the consequences of one’s actions or inactions. It requires something greater than negligence but you do not need to prove that the actions or inactions were done with the intention of causing harm, or with knowledge that harm will result.
  • Supportive measures Actions taken or measures put in place to support a survivor, i.e. a unilateral no-contact order or class or housing accommodations.
  • Evidentiary Standard (“standard of proof”) – The standard (criteria) of evidence that the complainant must present in order to “prove” that the alleged conduct occurred. There are different levels of evidentiary standards that vary in the amount and type of proof the complainant must present in order to prove that the incident happened, depending on what type of case it is (i.e. criminal versus civil).  
  • Preponderance of the Evidence – Evidentiary standard by which a complainant must show that it is more likely true than not true that the alleged conduct took place. Traditionally has been used in Title IX complaints and other civil rights cases (and is used almost exclusively in all civil court cases).
  • Clear and Convincing Evidence – A higher evidentiary standard, proposed in the new regulations. A complainant must present evidence to show that it is highly probable that the alleged conduct took place. This would be a very difficult standard to meet in most cases of sexual misconduct, as it is often difficult to find “convincing” evidence to show the incident(s) took place.
  • Mutual No-Contact Order – A no-contact order (NCO) is similar to a restraining order but is issued by a school instead of by a court.  Currently, if a survivor requests a no-contact order as a form of protection against the person who sexually assaulted or harassed them, the school could issue a unilateral (one-way) NCO, protecting the survivor and prohibiting the assailant/harasser from contacting the survivor (and disciplining the harasser if they violate the order). The proposed regulations will require no-contact orders to be “mutual,” or go both ways. If schools issue a “mutual no-contact order,” it also applies to the survivor, meaning the survivor could face discipline if they accidentally have contact with the assailant/harasser (i.e. at a sporting event or on-campus café). In other words, the survivor may be forced to change their normal schedule, classes, or housing if they want to avoid running into their assailant and/or facing discipline themselves. Unlike one-way NCO’s, mutual NCO’s punish survivors for seeking protection (because they are often issued when the survivor hasn’t done anything wrong) and can be weaponized to intimidate survivors out of making or following up with their complaint (i.e. the respondent may file baseless complaints saying the survivor has violated the NCO to “turn-the-tables” on the survivor, put them under heavy scrutiny by the school, controlling their movements).

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Sample Comments

Sample Comment 1: from a Civil Rights Attorney’s perspective

Note: This is just an example. Please personalize your own comment, so that it is more likely to be taken into consideration or directly addressed when the Department of Education is required to respond to comments.

Re: ED-2018-OCR-0064

To whom it may concern:

My name is [YOUR NAME], and I am a civil rights attorney in California who represents survivors of sexual assault in Title IX cases. I have been practicing for 12 years and have represented survivors exclusively for the past 7 years.

Standard of Evidence

Proposed Regulation 106.45(b)(4)(i) requires schools to apply the higher standard of evidence to Title IX cases – Clear and Convincing Evidence. Application of this standard of evidence is inequitable and impractical, and contradicts decades of legal practice, especially in California, the state that consistently has more students enrolled in K-12 and higher education institutions than any other state (National Center for Education Statistics, Tables 203.20 and 304.10, at https://nces.ed.gov/programs/digest/current_tables.asp).

Fails to Equitably Consider Consequences to Victims

The Department suggests the higher standard is appropriate because “a finding of responsibility [of sexual assault] carries particularly grave consequences for a respondent’s reputation and ability to pursue a professional career.” First, the Department fails entirely to consider and address the grave consequences to the victim of sexual assault when compared to other crimes.  The average cost of being raped is estimated at $110,000. This compares with victim costs of $16,000 for robbery, and $36,000 for drunk driving. (“Sexual Violence Basics: How Much Does Sexual Violence Cost?” Children’s Safety Network Economic and Insurance Resource Center, at http://www.d.umn.edu/cla/faculty/jhamlin/3925/Readings/MNcost.pdf.)  It also ignores the emotional and mental cost to victims. 34.1% of students who have experienced sexual assault dropout of college, higher than the overall dropout rate for college students. (“Violence Victimization on a College Campus,” Mengo & Black, 2015). An estimated 40% of rape victims suffer from severe emotional distress requiring mental health treatment. (“Victim Costs of Violent Crime and Resulting Injuries,” Miller, Cohen, & Rossman, 1993.)  Thus, it is inequitable for the Department to apply a higher standard of evidence based solely on its conclusion that the consequences to the respondent are “grave” without consideration of the grave consequences to the victim, whom the provisions of Title IX were designed to protect.

Contradicts Well-Established Legal Precedent

Second, the Department’s proposal contradicts well-established legal principles that application of the higher standard is only appropriate in very limited circumstances. “The general rule in California is that ‘[i]ssues of fact in civil cases are determined by a preponderance of testimony.’” CACI Jury Instruction No. 200 (2018) (quoting Weiner v. Fleischman (1991) 54 Cal.3d 476, 483). “Because the preponderance-of-the-evidence standard results in a roughly equal allocation of the risk of error between litigants, we presume that this standard is applicable in civil actions between private litigants unless ‘particularly important individual interests or rights are at stake.’”  Grogan v. Garner (1991) 498 U.S. 279, 286 (quoting Herman & MacLean v. Huddleston (1983) 459 U.S. 375, 389). Proof by clear and convincing evidence is only required “‘where particularly important individual interests or rights are at stake,’ such as the termination of parental rights, involuntary commitment, and deportation.”CACI Jury Instruction No. 201 (2018) (citing Weiner, supra, at 487 (quoting Herman & MacLean, supra, at 389-90)). The Department’s contention that the “reputation” of the respondent could be harmed by a finding of responsibility in no way equates to the level of consequences contemplated by the U.S.Supreme Court in the cases cited above.

Impractical Evidentiary Standard in Sexual Assault Context

Third, application of this higher standard is impractical and seems intentionally designed to reduce the overall number of findings of sexual assault. Most sexual assaults are committed by someone the victim knows and take place in private, where there are only two witnesses — the victim and the assailant — and little or no corroborating evidence. (“Perpetrators of Sexual Violence: Statistics,” RAINN, at https://www.rainn.org/statistics/perpetrators-sexual-violence.) To require victims under these circumstances to prove that it is highly probable that an assault took place is akin to removing all Title IX protections altogether, as it will be nearly impossible for any victim to establish an assault by this higher standard of evidence. The most equitable and fair standard to use for complainants and respondents alike is a preponderance of evidence. (“The Preponderance of Evidence Standard: Use In Higher Education Campus Conduct Processes,” Chris Loschiavo, JD and Jennifer L. Waller, PhD; see also Grogan v. Garner, 459 U.S. at 389.)

Sincerely,

Jane Smith, Attorney

Equal Rights Advocates

San Francisco, CA

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Sample Comment 2: from a Survivor Advocate’s perspective

Note: This is just an example. Please personalize your own comment, so that it is more likely to be taken into consideration or directly addressed when the Department of Education is required to respond to comments.

Re: ED-2018-OCR-0064

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. I am a concerned advocate for sexual harassment and assault survivors, who works at a civil rights organization and who is committed to everyone’s equal access to education regardless of race or sex.

Duty to Report and Neglect of Off-Campus Incidents

In particular, I am concerned about how the proposed regulations narrow which school employees are required to act on reports of sexual harassment and misconduct in higher education settings (§§ 106.44(a), 106.30), as well as the regulations’ requirement of schools to dismiss reports of sexual violence that happen between students off campus (§§ 106.30, 106.45(b)(3)).

If enacted, these rules would not balance the scales of justice between student complainants and student respondents, which the Department of Education has expressed as its goal of the proposed regulations. Rather, these rules would result in students’ reports and complaints being dismissed or ignored, which will very likely decrease reporting overall, as other students learn of the ways reports and complaints are ignored and surmise that they may as well take no action to report sexual harassment and assault.

The related research and data summarized below show that the regulation will harm students and student survivors, including the fact that survivors already rarely report cases of sexual violence to their schools – largely because they don’t know how to report or whom to report to on their campus (Holland & Cortina, 2017). This research shows that students do not report due to confusion about who to report to, despite the fact that Title IX offices and Title IX Coordinators have existed for many years. It logically follows that limiting the schools’ responsibility to act to reports made to very specific individuals will mean that reports will go unacted upon. According to the same study, survivors often do not report their sexual assaults because of fear of being disbelieved or their assault not taken seriously (Holland & Cortina, 2017). If survivors see that other students’ reports were not acted upon by their schools, students may be less likely to report future incidents of sexual violence. Lowered reporting means that students who engaged in sexual misconduct will carry on without their misconduct being addressed, making schools less safe for all students.

Data also shows that 87% of college students live off-campus (Hill & Kearl, 2011). It is logical and obvious that sexual assaults between students take place in students’ homes and rooms. In the 2010-11 school year, 36% of girls, 24% of boys, and 30% of all students in grades 7-12 experienced sexual harassment online (Hill & Kearl, 2011). 18% of these students did not want to go to school afterward, while 13% found it hard to study, 17% had trouble sleeping, and 8% stayed home from school (Hill & Kearl, 2011).  Experiencing sexual harassment from students outside of a school activity is a reality for many students, and it has dire implications for their ability to access education.

For the foregoing reasons, these sections of the rule should be struck.

Sincerely,

Rebecca Holt

Civil rights advocate and concerned citizen

Employee of Equal Rights Advocates

Source Citations
Hill, C. & Kearl, H. (2011). “Crossing the line”: Sexual harassment at school. AAUW.

Holland, K. J. & Cortina, L. M. (2017a). “It happens to girls all the time”: Examining sexual assault survivors’ reasons for not using campus supports. American Journal of Community Psychology, 59(1), 50-64. doi: 10.1002/ajcp.12126

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