January 30, 2019
Via Federal eRulemaking Portal
The Honorable Betsy DeVos
Secretary of Education
℅ Brittany Bull
United States Department of Education
U.S. Department of Education
400 Maryland Ave. SW, Room 6E310
Washington, DC 20202
Docket ID ED-2018-OCR-0064
Re: Williams College’s Comments on Proposed Title IX Regulations
Dear Secretary DeVos:
I write with respect to the Department of Education’s proposal to amend the regulations implementing Title IX of the Education Amendments of 1972. Williams College fully endorses the comments on the proposed regulations submitted by the Association of Independent Colleges and Universities in Massachusetts (AICUM) (Document ID ED-2018-OCR-0064-7715), and have joined with peer institutions to express concerns shared by residential liberal arts colleges in a separate letter submitted by Michael Baughman of Pepper Hamilton LLP. Williams submits here additional comments to describe how the proposed regulations would complicate and impede our efforts to prevent and respond to sexual harassment and discrimination on our own campus.
About Williams and Our Sexual Harassment Grievance Process
All of our roughly 2,000 undergraduate students attend classes and engage in activities on campus. All but 100 or so also live and dine on campus. Because Williamstown is rural and remote, campus life forms the core of the student experience. The college is dedicated to building a welcoming and inclusive community environment in which all of its members will live, learn, and thrive. The location and interconnectedness of our community make it important that we uphold this commitment, as the health of any small community depends on mutual trust, respect and a sense of security.
Our student code of conduct plays an important role in our efforts, setting forth clear conduct and behavior expectations to help build, reinforce, and uphold our values. We have worked hard to develop clear standards for student conduct and to make sure students understand them. Our procedures for investigating and adjudicating complaints of sexual harassment exemplify this principle, and we have designed them to be fundamentally fair and equitable for all involved. We have carefully created a system that allows an institutional remedy for a complainant, provides the respondent with ample notice and opportunity to participate, and attempts to minimize the stress and trauma for all involved while delivering fair outcomes. We respect survivors’ autonomy to decide whether and when to file a formal complaint and we safeguard the confidentiality of the process to protect the privacy and of both complainants and respondents. We provide both parties with support from deans and offer counseling, access to confidential resources, and other support and assistance to any student navigating the process.
The goals of our grievance process are to reinforce the college’s code of conduct; help those responsible for misconduct be accountable for and learn from their past behavior; and help survivors and our community recover from the impacts of harassment and discrimination and make the most of their Williams education. A transparent, accessible, and fundamentally fair process of investigation, adjudication, appeal, and sanctioning is central to our educational mission.
To minimize the impacts and burdens on all participants we use a hybrid investigator and hearing panel model, in which a trained, independent investigator interviews witnesses and develops a comprehensive report, and then a hearing panel makes the determinations of responsibility and sanctions. Rather than direct cross-examination, our process allows complainants, respondents, and the hearing panel to request that the investigator ask specific questions of the other party and other witnesses. This model reflects the culture and educational mission of the college, and is entirely consistent with longstanding Title IX case law that applies in Massachusetts.
Even with these procedures, our comprehensive climate surveys in 2014–15 and 2017–18 show that only a small percentage—roughly 6 percent—of students who have been subjected to sexual misconduct are willing to file a formal complaint. This points to room for improvement in our efforts to ensure a campus climate free from sexual harassment and discrimination. Our concern is that the proposed rules will dissuade reporting of harassment and misconduct even by the small percentage of students already inclined to do so, and make it nearly impossible to further increase in our efforts to ensure a safe campus.
The proposed regulations would complicate and impede our efforts to prevent and respond to sexual harassment and discrimination at Williams.
Since the Department issued Title IX rules in 2001, and continuing through the additional guidance issued in 2011 and 2014, we have sought to assemble a skillful and experienced Title IX administrative team and develop procedures informed by best practices in law, higher education student affairs, public health, and violence and injury prevention. Several elements of the proposed rules contravene settled law and evidence-based best practices across these fields.
The proposed regulations would make the process more traumatic and intimidating for both complainants and respondents, chill the willingness of survivors to pursue available remedies, and increase the risk of erroneous or unfair outcomes. In particular, we have the following concerns with the proposed changes:
- Section 106.44(b)(2) of the proposed rules requires that the Title IX Coordinator file a formal complaint whenever there is “actual knowledge of multiple complainants of conduct by the same respondent that could constitute sexual harassment.” The proposed rule contains no exception for cases where complainants wish to remain anonymous and do not wish to pursue a formal complaint, but does require that the college provide the names of complainants to respondents in writing. This could force the Title IX coordinator to file a formal complaint before survivors are ready to participate, unnecessarily re-traumatizing them and compromising their desire for confidentiality. Many of these survivors may understandably elect not to be available for cross-examination, thus deterring reporting and depriving them of access to resources. To make matters worse, when combined with the mandatory exclusion of all statements made by parties not available for cross-examination, the provision will doom investigations to failure as a matter of procedure rather than fact. (See Section 106.45(b)(3)(vii).)
Our current approach is more consistent with the goals of Title IX. When Williams receives multiple reports of behavior by the same individual (either directly from complainants or from responsible employees), the Title IX coordinator and deputies reach out to the recipients or targets of this behavior to ensure that they are aware of their options for a formal complaint/disciplinary process as well as supportive accommodations. The Title IX officers also conduct a safety risk analysis for the complainant(s) and the community as a whole. While there will be exceptional instances in which the college needs to act as complainant and proceed as a matter of public safety, even when a survivor opts not to pursue a formal process, the college should be allowed to continue determining the need for such action on a case-by-case basis in order to ensure the privacy of the students involved while keeping our programs and activities free from harassment.
- Section 106.44(e) would redefine sexual harassment under Title IX. The new definition fails to capture the full range of gender-based misconduct that the college prohibits in order to ensure equal access to our educational program and activities. In accordance with our code of conduct and Massachusetts law, Williams College will continue to prohibit broader categories of sex or gender-based misconduct, including stalking, relationship abuse, and sexual exploitation, as well as discrimination and harassment based on gender identity and presentation.
Unfortunately, Section 106.45(b)(3) would require that formal Title IX complaints be dismissed for all claims that do not satisfy a significantly narrowed definition. This will excessively complicate the investigation and adjudication of student misconduct, requiring parallel Title IX and non-Title IX processes for cases that involve claims arising out of serial incidents and interactions between the same individuals. The result will be additional, unnecessary burden on complainants, respondents, witnesses, and hearing officers. Requiring separate and parallel processes for situations that are intrinsically related may also lead to divergent or unclear outcomes that would be fundamentally less fair to all involved.
- Under proposed Section 106.45 (b)(2)(i)(B), the college’s initial notice to all parties must state that the respondent is presumed not responsible. While requiring the institution to bear the burden of proof plays an important role in ensuring an equitable and fundamentally fair process, requiring an express statement to that effect in the initial notice letters to complainants would likely chill their willingness to pursue claims, by appearing to shift the burden of proof from the institution to the complainant. Our current notification practice, which we believe serves the spirit of Title IX regulations, makes no assumptions about the outcome of the case prior to the hearing process.
- Proposed Section 106.45(b)(3)(iii) provides that a recipient must “not restrict the ability of either party to discuss the allegations under investigation or to gather and present evidence.”
At Williams, campus life is closely-knit. News, gossip and rumors travel quickly, and privacy and anonymity are hard to guarantee. In our experience, both respondents and complainants want their cases handled fairly and discretely. Accordingly, our procedures allow parties to discuss their case to the extent necessary for them to obtain or present evidence or otherwise participate in the investigation and adjudication process. It also allows parties to discuss their case with family members, confidential advisors, and counselors. However, Williams otherwise requires parties and witnesses to maintain the confidentiality of the proceedings in order to minimize the risk of retaliation, intimidation, harassment or bullying of complainants, respondents, and witnesses. The proposed rule will make it much harder for us to protect the integrity of the process and prevent the harassment of its participants.
- Proposed Section 106.45(b)(3)(vii) requires a live hearing model of adjudication with cross-examination by a party’s advisor. Upon request, the college would need to provide each party with a trained advisor to conduct the cross-examination. The decision makers would need to provide explanations of any decision to exclude questions. And if a party or witness does not submit to cross-examination at the hearing, the decision maker must then not rely on any statement by that party or witness when reaching a determination regarding responsibility.
Taken together, these requirements impose an adversarial model of adjudication that conflicts with our culture, educational goals, and reasoned determination of how to best investigate Title IX complaints in a fundamentally fair manner. Courts have routinely held that colleges are not required to turn their classrooms into courtrooms. Not only do the proposed requirements do just that, they will also make a fundamentally difficult process worse for all involved.
The prospect of adversarial cross-examination will deter victims of abuse and harassment from coming forward to pursue formal charges, which in turn will make it more difficult for the college to prevent, respond to, and remedy the effects of discrimination on campus.
In addition, the draconian rule excluding all statements of witnesses unavailable for cross-examination will frustrate the fact-finding process. There are many reasons why a potential witness might not be available to participate in a live hearing: e.g., they might be off campus or out of the country for study away, medical leave, personal leave, or some other reason. To automatically exclude witness statements on this basis will result in inadequate access to the facts of a case, which will lead to a less robust hearing and a less reliable outcome.
With cross-examination by advocates for the parties, the live hearing model will be more intimidating and potentially traumatizing for complainants, respondents, and witnesses. Williams’ existing model relies on a pool of staff members who voluntarily agree to participate in training and the adjudication of conduct cases. We expect many fewer staff members will agree to participate in a process that intimidates and traumatizes its participants.
In regard to the requirement to provide advisors, it would be inconsistent with our educational mission to ask faculty and staff who spend their days teaching and mentoring students to then cross examine them, as well. The new obligation would therefore require that the college instead hire trained professionals who would represent students throughout the proceedings.
Further, the proposed rules require direct cross-examination, but do not establish rules to protect complainants, respondents, or other witnesses from aggressive or inappropriate methods of examination. With lawyers questioning parties and witnesses, it would be much more difficult, perhaps impossible, for college administrators to manage the proceedings effectively and ensure they are handled humanely and sensitively. We would likely also need to hire trained professionals to preside over the hearings.
Taken together, these procedural requirements will impose burdens on colleges and universities that far exceed the Department’s calculations of costs from the proposed rulemaking. The Department underestimates both the time and money required for schools to revise their policies and procedures and then implement and sustain the newly prescribed hearing process. Even if some of these costs were offset by a reduction in the volume of formal complaints of harassment—which we feel would be an undesirable outcome in any case—the Williams community would still likely bear additional costs in other places and ways. Any increase in unaddressed and unmitigated harassment in our program and activities would likely spur demand for mental health and student support services, increase attrition of enrolled students, and deflect the trajectory of hardworking students who deserve the chance to complete their education and pursue graduate or professional education and post-graduate careers.
Our current model, with a trained investigator who asks questions suggested by a party, provides an effective and fundamentally fair means of fact-finding without making a student educational process unduly adversarial.
In conclusion, we urge the Department of Education to reconsider its one-size-fits-all approach to amending the Title IX regulations. Williams is engaged in an ongoing process of reviewing and evaluating its procedures. We know that there is always more we can do to support all students involved in Title IX processes. If the Department has determined that regulatory changes are necessary, we urge it to require schools to develop standards and processes that are fundamentally fair for the participants, and to trust each school to develop the rules, requirements, and procedures that will best achieve that goal while serving our educational mission and culture.
Maud S. Mandel
 See, for example, Gorman v. Univ. of Rhode Island, 837 F.2d 7 (1st Cir. 1988); Haidak v. Univ. of Mass. at Amherst, 299 F. Supp. 3d 242 (D. Mass. 2018); Schaer v. Brandeis Univ., 432 Mass. 474 (2000).