Dear Members of the Brown Community,
Earlier today, I submitted public comments to the U.S. Department of Education regarding proposed regulations that could introduce significant changes in how schools handle complaints of sexual and gender-based harassment and violence. I am sharing below the comments submitted on behalf of the University as part of the government’s rule-making process.
Brown has been actively engaged as a community in making progress to prevent and confront issues of sexual misconduct, dating back to the 2014 recommendations of Brown’s Sexual Assault Task Force. I want to thank the students, faculty and staff who continued this path of engagement by providing feedback on the proposed federal regulations through community forums and an online feedback form in December. The feedback echoed the University’s strong belief that federal regulations should align with the educational mission of colleges and universities, and should not impede them from upholding processes and procedures that encourage reporting while also being grounded in equity and fairness.
Brown’s Title IX and Gender Equity Office will share with the campus in the coming days the insights gathered through December’s community feedback process. The input may inform how Brown considers the implications of the federal regulations for the University’s policies and procedures after the final regulations are published.
Dear Secretary DeVos:
On behalf of Brown University, I submit these comments in response to the Department’s November 29, 2018, Notice of Proposed Rulemaking (NPRM) amending regulations implementing Title IX of the Education Amendments of 1972, Docket ID ED-2018-OCR-0064.
I appreciate the Department’s efforts to develop Title IX regulations and guidance that ensure that sexual misconduct does not prevent students from benefitting fully from their educational experiences. I hope my comments, which are in agreement with the comments of the American Association of Universities (of which Brown is a member), inform the development of the final regulations.
The issue of sexual misconduct—encompassing sexual and gender-based harassment, sexual violence, relationship and interpersonal violence, and stalking—is one of the most pressing issues facing American society today. Educational institutions have a clear ethical and legal obligation to address sexual misconduct on their campuses, and it is imperative that they have fair, equitable and clear policies and procedures for reporting, investigating and resolving allegations of sexual misconduct.
As you consider how to regulate the practices of universities and colleges, it is essential to recognize that campus disciplinary proceedings have a purpose that is educational, not legal. Universities and colleges develop and enforce campus codes of conduct in order to create and sustain positive learning environments that support their distinctive academic missions. Campus disciplinary proceedings are not, and cannot ever be, substitutes for or analogs to courts of law, whether criminal or civil.
The AAU comments note that the NPRM unreasonably imposes restrictive “one-size-fits-all” requirements on how educational institutions must respond to allegations of sexual misconduct. I agree with this concern. Although all colleges and universities that receive federal funding have an obligation to comply with Title IX, the specific conduct codes and grievance procedures they adopt should reflect procedural fairness, their own community standards and values (which may change over time), and be responsive to their specific circumstances. Brown’s current policies and procedures governing sexual misconduct came out of an open process that incorporated substantial input from students, faculty and staff and, as such, they reflect our norms, values, and approach to education. But the specific policies and processes that are right for Brown, with its strong residential undergraduate program and culture that emphasizes collaboration and mutual respect among members of our community, may not be appropriate for institutions that (for example) serve commuting populations or offer primarily online courses. I strongly encourage the Department to provide colleges and universities with maximum flexibility and autonomy to satisfy the requirements of Title IX in a way that reflects their unique values and distinctive educational missions.
One particular area in which the proposed regulations impose potentially damaging “one-size-fits-all” restrictions concerns the requirement that advisors, who may be professional attorneys, must be permitted to conduct live cross-examination in hearings. This proposed regulation risks mandating legal tribunals in an educational setting where cross-examination, active participation by attorneys and evidence rulings must be discharged by university administrators without any legal training or degrees.
Permitting attorney-advisors to conduct cross-examination is particularly troublesome, as differences in the financial capabilities of students could cause a disadvantage to those unable to afford legal representation. Although some institutions may have the resources to provide all students with attorney-advisors, most do not. In addition, a shift to a more adversarial “courtroom” environment may deter students from reporting sexual misconduct, undermining the ability of colleges and universities to create a safe and positive educational environment for all students. This would be especially unfortunate, given clear empirical evidence that sexual misconduct is already vastly underreported. It is possible to have fair and equitable hearings that do not involve attorneys conducting in-person cross-examinations.
In light of these concerns, Brown is endorsing the three specific recommendations made by the Association of American Universities (AAU):
- Remove requirements that institutions permit live cross-examination and appoint aligned advisors.
- Remove the requirement that universities apply the same standard of evidence and process across all disciplinary processes.
- Clarify whether the Department intends to preempt other relevant laws, and whether and under what circumstances an institution may forbid and investigate behavior that falls outside the Department’s definition of “sexual harassment.”
I would close by echoing the AAU’s request that universities and colleges be given sufficient time to implement any changes necessitated by the new regulations.
Christina H. Paxson