Comments on the Department of Education’s Proposed Title IX Regulations

January 30, 2019

As President of Wellesley College, the country’s leading women’s college, I am deeply committed to ensuring that Wellesley College is a safe environment in which all forms of sexual harassment—including sexual assault, rape and other forms of unwanted sexual attention, sexual coercion, and the most common form of sexual harassment, gender harassment—are not tolerated, and most importantly are prevented. I also firmly believe that it is essential that the College treat both the complainant and the accused fairly in Title IX processes on our campus.

I feel a responsibility to add my voice to the debate and comment regarding the Department of Education’s Proposed Rulemaking amending regulations implementing Title IX of the Education Amendments of 1972, and to stand with women—and all those who care about these issues—and speak out against sexual harassment in all of its forms in higher education.

Between 2016 and 2018, I served as co-chair of a study sponsored by the National Academies of Sciences, Engineering and Medicine regarding the impacts of sexual harassment in academia, where greater than 50 percent of women faculty and staff and 20 to 50 percent of women students encounter or experience sexually harassing conduct. (See p. 65.) A report titled, Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine, provides research, conclusions, and recommendations to bring clarity and a uniquely data-driven perspective to this debate. I will highlight just a few of the findings of this report, as they relate to the Department of Education’s proposed Title IX Regulations.

To begin, a critical finding of the National Academies’ research is that Title IX, Title VII, and case law all reflect the inaccurate assumption that a target of sexual harassment will promptly report the harassment. In fact, the data demonstrates that the least common response from women is to formally report the sexually harassing experience. The report cites a study in the employment context that found that “only 25 percent of targets will file a formal report with their employer, and even a smaller fraction of them will take their claims to court.” (See p. 80.) In institutions of higher education, the reporting rates are even lower. Several research studies confirm that both undergraduate and graduate students have extremely low reporting rates, ranging from 2.2 percent to 7 percent, and one early study suggests that the reporting rates of university faculty and staff are similar to those of graduate students, with only 6 percent reporting their experience. (See p. 80-81.) Women of color are even less likely to report than white women. (See p. 81.) For many, this is due to an accurate perception that reporting may cause them to experience retaliation or other negative outcomes in their personal and professional lives.

The Department’s proposed Title IX Regulations will undermine the purposes of Title IX— preventing and remedying discrimination and harassment based on sex—by erecting new procedural hurdles that will further discourage already reluctant individuals from coming forward to report their experiences. Most significantly, the proposed rules require a victim who has suffered sexual harassment or sexual assault to undergo not only a full investigation but also a live hearing that includes cross-examination by the advisor of the other party. The scope of this cross-examination is not limited and arguably creates an incentive to subject the complainant to lengthy and repetitive cross-examination that will undoubtedly cause some individuals to withdraw their complaints rather than continue with the process. Faculty, staff, and students will shy away from participation—as complainants, witnesses, decision-makers, and advisors—because of the highly legalistic process contemplated in the proposed Regulations. The data is clear: Women rarely report their experiences of sexual harassment. The proposed Title IX Regulations will only serve to further discourage reporting and remedying of sexual harassment at our institutions of higher education, contrary to the purpose of Title IX.

Recommendation: Consistent with the procedures contemplated for elementary and secondary schools in the proposed Regulations, the Department of Education should not mandate live hearings with direct cross-examination in every case at colleges and universities, but instead should allow more flexibility and discretion for institutions to determine the appropriate safeguards that will ensure a fair process for all parties.

Another key finding of the National Academies’ report is the recognition that sexual harassment is a form of discrimination that consists of three types of harassing behavior: sexual coercion, unwanted sexual attention, and gender harassment. The term “gender harassment” “refers to ‘a broad range of verbal and nonverbal behaviors not aimed at sexual cooperation but that convey insulting, hostile, and degrading attitudes about’ members of one gender.” (See p. 25.) Based on extensive research, the report found that gender harassment that is severe or occurs frequently over a period of time can result in the same level of negative professional and psychological outcomes as isolated instances of sexual coercion. (See p. 69.) The report cites research finding that members of sexual minorities experienced gender harassment and other forms of harassing behavior at more than double the rates of heterosexuals. (See p. 46.) The study concluded that the only way to truly combat sexual harassment is to pay attention to and enact policies that address and prevent the most common form of sexual harassment—gender harassment.

Again, the Department’s rulemaking will undermine, not advance, the purposes of Title IX. Where the research suggests that effective prevention of sexual harassment requires a more expansive approach to the problem, the proposed rules instead seek to constrict the scope of conduct that is addressed on our campuses. For example, the proposed Title IX Regulations limit the availability of Title IX processes to a narrow definition of sexual harassing conduct: sexual assault; quid pro quo harassment; and “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.” Under the framework of the new proposed Regulations, Title IX processes would also be limited to sexual harassment that occurs within an institution’s own “education program or activity,” requiring dismissal of any complaint alleging conduct outside these narrow limitations. What this potentially means is that colleges and universities would be unable to use Title IX processes to hold students accountable for sexual misconduct that takes place off campus or that is directed toward a student of another college or university. As the president of a women’s college where the majority of incidents affecting our students occur off campus, I am very concerned that this unreasonable limitation heightens the vulnerability of victims who experience sexual misconduct while visiting another campus or while participating in an off-campus activity or event.

Recommendation: The Department of Education should not require institutions to dismiss Title IX processes complaints that do not meet the narrow definition or that do not occur within a recipient’s program or activity and should make it clearer that institutions have discretion to address a broader scope of harassing conduct through their student and employee conduct processes.

These are but a few examples of areas in which the Department of Education’s proposed Title IX Regulations fall short in advancing the goals of Title IX—to prevent and address discrimination and harassment based on sex through procedures that are fair to everyone involved in a Title IX process. The research examined in the National Academies’ report offers a rich understanding of sexual harassment at colleges and universities and articulates best practices for reducing its occurrence on our campuses. The Department’s proposed Regulations represent a step backwards, while the data illuminates a path forward. For the women of Wellesley and for all those whose lives are and will be impacted by Title IX processes in higher education, I respectfully submit that it is essential that the Department shift its course.