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January 28, 2019

Secretary Betsy DeVos

c/o Brittany Bull

U.S. Department of Education

400 Maryland Avenue, SW

Room 6E310

Washington, DC 20202

Re: Docket ID ED-2018-OCR-0064

Dear Secretary DeVos:

On behalf of our members, the Campus Advocacy and Prevention Professionals Association (CAPPA) provides our comments in response to the Department of Education (“the Department”)’s November 29, 2018 Notice of Proposed Rulemaking (“NPRM”) amending regulations implementing Title IX of the Education Amendments of 1972 (Title IX”), Docket ID ED-2018-OCR-0064.

I. Introduction

II. General Comments

III. Specific Comments

§106.30: Supportive Measures

§106.30 and § 106.44(a): Actual Knowledge

§106.30: Sexual Harassment Definition

§106.44 (b)(2): Obligation to Initiate Formal Grievance Proceeding: Multiple Reports Against Same Respondent

§106.45 (b)(1): General requirements for grievance procedures

§106.45(b)(3): Requirement to Dismiss Certain Complaints

§106.45(b)(3): Investigations of a Formal Complaint

§106.45 (b)(6): Informal Resolution

IV. Responses to Directed Questions

Directed Question 1: Applicability of the rule to elementary and secondary schools

Directed Question 2: Applicability of provisions based on type of recipient or age of parties

Directed Question 6: Standard of evidence:

I. Introduction

Founded in June 2015, CAPPA is the national professional association comprised of and representing campus-based and higher education-affiliated professionals working in both advocacy and prevention capacities. CAPPA’s membership comprises over 700 individuals in 49 states, the District of Columbia, and Puerto Rico, as well as Canada, Australia, and Costa Rica. Our membership is composed of professionals with expertise and credentials in the fields of mental health counseling, psychology, social work, education, public health, public policy, and law.

Our members hold expertise in every kind of institution comprising American higher education: we are situated in both public and private institutions; in institutions of all sizes, ranging from those with fewer than 1,000 students to those in excess of 30,000; secular and religiously-affiliated; from fully residential to fully commuter; and those with a single campus to a network of campuses both domestically and abroad.

CAPPA envisions campuses free from all forms of interpersonal and gender-based violence, including dating and domestic violence, sexual assault and harassment, and stalking. CAPPA works collaboratively toward creating campuses where advocates and prevention specialists’ expertise is valued and where professionals in this field are empowered to do their work effectively and sustainably until we achieve this vision of ending violence. Our work is rooted in social justice, supporting survivors, and fostering communities that value evidence-based practice and practice-based research.

Though CAPPA is a relatively young association, nearly one third of our members have been in the field for over a decade, and have been the practitioners and researchers largely responsible for both implementing the Department’s January 2001 Guidance as well as developing best practices which have informed higher education practice and original research which has furthered our national understanding of the causes and effects of gender-based violence as well as strategies for its prevention.

II. General Comments

The Department under Secretary DeVos has sought to distance itself from the 2011 and 2014 sub-regulatory guidance (“The Dear Colleague Letter, or DCL” and “The FAQ”). Although the Department may disagree with the mechanisms by which that guidance was promulgated, it reflected strong legal roots in the legislative history of Title IX, settled law regarding Title VII and Title IX, and the Department’s 1997 and 2001 rules. Further, that guidance drew from best practices in harassment, violence, and injury prevention and campus sexual assault prevention. These best practices are the product of research over the last two decades that has been funded directly and indirectly by the Centers for Disease Control and Prevention, Department of Justice (including the National Institutes of Justice, Office of Violence Against Women, and Office of Sex Offender Sentencing, Monitoring, Apprehension, Registering, and Tracking), and the National Institutes of Health.

We are gravely concerned that the Department’s NPRM departs significantly from the foundational legal, policy, and practice guidance surrounding both Title IX and sexual harassment prevention more broadly. CAPPA’s members have long called for procedural justice for individuals who have experienced sexual and gender-based harassment, abuse, and discrimination. Policies that are equitable both on their face and in implementation and processes that are procedurally just benefit recipients, complainants, and respondents. These rules as written in the NPRM represent a lopsided and shocking disregard for students, employees, and third parties in educational institutions seeking remedy for sex- and gender-based harassment and discrimination. If the Trump administration wishes to address rights for respondents as a matter of law, it could take this matter up with Congress and seek sponsors to move forward legislation to that end. Title IX is not now, nor has it ever been, a respondents’ rights law.

III. Specific Comments

§106.30: Supportive Measures

“Proposed § 106.30 defines “supportive measures” as non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge, to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Section 106.30 goes on to explain that such measures are designed to restore or preserve access to the recipient's education program or activity, without unreasonably burdening the other party; protect the safety of all parties and the recipient's educational environment; and deter sexual harassment” and “furthermore, § 106.30 clarifies that the Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.”


  1. Measures that are designed to restore or preserve access to a recipient’s education program or activity are not synonymous with measures which “[take] immediate effective action to eliminate the hostile environment and prevent its recurrence”. Given the narrowing of the definition of sexual harassment proposed in this section from the 1997 and 2001 Department guidance (the latter of which was consistent with the decisions in Gebser v. Lago Vista ISD and Davis v. Monroe County. Board of Education, hereinafter Gebser and Davis) of conduct that has the effect of “limit[ing] a student’s ability to participate in or benefit from an education program or activity” to “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 (emphasis added), to then relieve recipients of the responsibility set out in the 2001 guidance to “[take] immediate effective action to eliminate the hostile environment and prevent its recurrence” is a miscarriage of the legislative intent of Title IX and of previous rulemaking by this Department.

  2. The language of “unreasonable burden” or “undue hardship” does not apply to the other party, but to the recipient. It appears that the Department is here attempting to appropriate language from the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973. Combined with the indication in other sections of the NPRM that “supportive measures are ‘non-disciplinary’ and ‘non-punitive’”, the Department is attempting to transfer safe harbor from legal obligations conferred to employers and recipients under other civil rights laws to individual respondents.

  3. “Non-disciplinary and non-punitive” are insufficiently defined in the NPRM. It is worth noting that in cases in which an employer under the ADA or a recipient under Section 504 is seeking to use an undue hardship defense to avoid providing an accommodation, that there is an assessment process through which the undue hardship must be demonstrated.

    Consider the following two examples: 1) A student who happens to also serve as a resident advisor has made a formal complaint to a Title IX Coordinator and an investigation process is ongoing. The complainant has requested that the respondent, a resident of the complainant’s building, be moved from their shared building. Because the complainant has employment responsibilities in building, the Title IX Coordinator makes arrangements to move the respondent to another, substantially similar accommodation in a different building at no additional cost to the respondent. However, because the respondent does not wish to move their belongings or re-arrange their daily routine, they say that it is unreasonably burdensome; or 2) A complainant does not wish to make a formal complainant, and has simply asked the Title IX Coordinator that they no longer share a class with the respondent; an identical section of the class is offered in a different time slot, which conflicts with another class in the complainant’s schedule but not the respondent’s. The respondent says that they like their current class section because they have friends in that section and feel punished by the class transfer.

    This new guidance would grant procedural rights to individuals that have so far only been extended to institutions. To do so without a mechanism for case-by-case evaluation of both burden and punitiveness in Title IX is unfair. It places the respondent in a position of dictating what supportive accommodations a survivor may receive simply by saying they feel a supportive measure is punitive or unreasonably burdensome.

  4. The designation of the Title IX Coordinator as the sole coordinator of supportive measures is inconsistent with other elements of the NPRM and the practical functioning of institutions of higher education. First, though every recipient has at least one designated Title IX Coordinator and often one or more deputies, it is exceedingly rare that Title IX Coordinators are themselves responsible for individually implementing supportive measures or interim accommodations. Though they may be the facilitator of establishing these services and measures or the liaison between the complainant, respondent, and various campus offices, other student affairs professionals and faculty are responsible for implementing them. Indeed, on campuses of all sizes, students are typically more familiar with these staff and faculty as they interact with them on a regular basis whether or not they have experienced harassment and discrimination.

    Under the guidance and sub-regulatory guidance preceding the NPRM, if a student went to one of these offices, a responsible employee would have an obligation to transfer their actual knowledge to the Title IX Coordinator. Institutions worked hard to convey to students that seeking resources to mitigate the effects of harassment through those offices was tantamount to reporting to the Title IX Coordinator.

    Students now have the expectation that if they reach out to the student housing office, an RA, the campus safety or campus police, the gender and sexuality resource center, or a professor, they are putting their institution on notice and seeking resources to mitigate the effects of harassment or prevent its recurrence. Rather than educating students and staff about the many ways to access resources for safety, support and educational continuity, the Department is placing recipients in the position of directing educational resources to notifying students and employees of the recipient’s reduced responsibilities under Title IX and the additional burdens placed on students themselves.

§106.30 and § 106.44(a): Actual Knowledge

Actual knowledge means notice of sexual harassment or allegations of sexual harassment to a recipient's Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to a teacher in the elementary and secondary context with regard to student-on-student harassment. Imputation of knowledge based solely on respondeat superior or constructive notice is insufficient to constitute actual knowledge. This standard is not met when the only official of the recipient with actual knowledge is also the respondent. The mere ability or obligation to report sexual harassment does not qualify an employee, even if that employee is an official, as one who has authority to institute corrective measures on behalf of the recipient.”


  1. This relieves recipients of responsibility to address harassment which students are making good faith efforts to bring to their attention. Many CAPPA members report that a significant minority of their Title IX reports originated with the actual Title IX Coordinator. Instead, the majority of reports and ultimately formal complaints originate from a wide range of sources: faculty, coaches and athletic trainers, academic advisors and deans, RAs and residential life staff, chaplains, staff in diversity and equity offices and identity centers, supervisors in work-study jobs, and counseling, health, and advocacy offices.

    Our members could give hundreds of examples of students whose access to educational programs was limited or denied by sexual harassment and assault. These students are often struggling to cope with trauma and accomplish basic tasks of daily living like leaving their dorm, attending class, and completing assignments, much less participate in co-curricular activities like internships, jobs, athletics, or student organizations. Post-traumatic stress disorder, depression, and chronic pain all are experiences complainants often navigate in the wake of experiencing trauma. Mental health challenges such as these can impact a students’ likelihood to succeed academically and thrive on campus. With this, 34.1% of students who have experienced sexual assault dropout of college, higher than the overall dropout rate of college students. Responsible and confidential employees play critical roles in both limiting the disruption to or denial of the student’s educational program, as well as facilitating their connections to supportive resources and accountability processes.

  2. Designating a single individual as the person who triggers a recipient’s notice creates significant inequities for individuals affiliated with larger institutions. U.S. higher education contains a wide array of institutions of varying structural and administrative complexity. Although this proposed rule may be reasonable for a higher education institution of fewer than a few thousand students and a single contiguous campus, it creates significant hurdles to reporting for: a) students of institutions with more than one campus, whether that be separate campuses for medical, law, veterinary, or other graduate and professional schools distinct from undergraduate campuses, or recipients with multiple campuses in a single city. In an environment where many institutions are resolving their financial difficulties with mergers across campuses, it is possible for a single Title IX Coordinator to be tasked with oversight of up to a half-dozen physical sites; b) students of institutions with enrollments over 5,000. At this scale, even the most robust outreach program is not sufficient to overcome the barriers to reporting for students who are required to seek out a single administrator who may have responsibilities for tens of thousands of other students, faculty, and staff. Approximately 82% of our membership are employed at institutions serving over 5,000 students.

    Although professionals in the field have rightly raised concerns about the mechanisms of enforcement for responsible employee designation, broadening the number of individuals who are trained to receive complaints of harassment from students and make appropriate referrals has lowered barriers to reporting. This change would certainly increase barriers to reporting complaints of harassment and decrease use of supportive measures, directly contravening the intent of Title IX.

  3. This proposed rule is in conflict with the Clery Act. The Department updated the Clery Act Handbook for Campus Safety and Security Reporting in 2016 to reflect changes occasioned by the Violence Against Women Act (VAWA) reauthorization amendments to the Jeanne Clery Campus Safety Act in 2015. Within that handbook, the Department reaffirms that Campus Security Authorities are the very wide-ranging group of individuals whose campus role gives them “significant responsibility for student and campus activities” and thus the responsibility to report crimes reported to them. There is not a perfect overlap between CSAs and responsible employees, and there is sexual harassment which is actionable under Title IX but which does not rise to the level of a Clery-reportable crime, but it is incoherent to say that if an individual has such significant responsibility for student and campus activities that they put the institution on notice of Clery-reportable crimes, that they do not also put the institution on notice of Title IX-actionable harassment, especially when the same behavior spans both categories. One of the reasons that the Department has taken this approach is that Clery officials are regularly and highly trained in the intricacies of their reporting responsibilities and determining precisely the elements of incident and geography that compose a Clery-reportable incident and event in the Daily Crime Log. It is not left to untrained and undertrained individuals to make these determinations, whereas removing the responsible employee designation for Title IX does precisely that.

§106.30: Sexual Harassment Definition

“Sexual harassment means: (1) An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual's participation in unwelcome sexual conduct; (2) 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; or (3) Sexual assault, as defined in 34 CFR 668.46(a).”


  1. The replacing of the word “or” from decades of past guidance and legal precedent with the word “and” materially changes the scope of behavior for which there is a remedy under Title IX. The Department is misleading in its citations of both the Gebser and Davis cases in the NPRM, as neither case contradicts or amends either the 1997 or 2001 Department guidance. The definitions and mechanisms for determining hostile environment have worked effectively for two decades. As the Center for Public Integrity revealed in their extensive report published in 2010, the issue has not been an overly or inappropriately broad definition of a hostile environment, but rather an institutional failure by recipients prior to the 2011 subregulatory guidance to meet their Title IX obligations and a reticence by this Department to operate in an enforcement capacity on behalf of those who have experienced sex- and gender-based discrimination and harassment.

  2. The change in definition leaves stalking and domestic violence in an educational civil rights gray area. The VAWA Amendments to the Jeanne Clery Campus Safety Act in 2015 expanded the definition of Clery-reportable crimes to include stalking and dating and domestic violence. The tragic death of student Lauren McCluskey at the University of Utah just six weeks before the Department issued this NPRM clearly highlights the ways that this narrowing makes campuses materially less safe for students. Many of the behaviors comprising stalking and domestic violence would not meet the narrowed definition of severe, pervasive, and objectively offensive unless and until they escalate into physical violence or sexual assault.

    Our members have been the advocates on a number of campuses where stalking and domestic violence against students have escalated well beyond the point of limiting educational access, tragically up to and including homicide. The Department should certainly not exclude students from Title IX remedies until their experience crosses the threshold of serious physical violence. The Department should reconsider this definition and both bring it back into line with the 2001 guidance as well as the broader Clery Act definitions of stalking and domestic/dating violence.

§106.44 (b)(2): Obligation to Initiate Formal Grievance Proceeding: Multiple Reports Against Same Respondent

“When a recipient has actual knowledge of reports by multiple complainants of conduct by the same respondent that could constitute sexual harassment, the Title IX Coordinator must file a formal complaint; if the Title IX Coordinator files a formal complaint in response to such allegations, and the recipient follows procedures (including implementing any appropriate remedy where required) consistent with § 106.45 in response to the formal complaint, the recipient's response to the reports is not deliberately indifferent.”


  1. This requirement poses significant risks to the safety and autonomy of the targets of this harassment. The 2014 subregulatory guidance appropriately recognized the complexity of a recipient managing the safety and confidentiality requests of survivors in balance with the mandate to prevent the likelihood of future harassment or abuse of others in the community by the same respondent. The 2014 FAQ document contained a framework within which Title IX Coordinators, often working in conjunction with skilled and experienced advocates who could provide insight into the safety concerns and risks for the survivors in question, could exercise discretion by assessing a range of factors, such as whether there was an increased risk of future similar acts of violence, whether the act was carried out with a weapon, the age of the complainant, whether there were multiple perpetrators, whether the institution was on notice of other prior actions by the same perpetrator, etc., in order to determine whether to pursue an investigation. This analysis also took into consideration the implications for the victim if an investigation was pursued.

  2. This requirement is procedurally unclear. The most pressing question is that this proposed rule contains no requirement that the Title IX Coordinator or any advocate circle back to the individual(s) who first brought the incidents of harassment to the recipient’s notice. This section, in conjunction with the written notice requirements, means that a respondent could receive notice of the names and dates of the behavior to be investigated, while, because the Title IX Coordinator is acting as the complainant, the targets of that behavior would receive no such notice.

    The Department has also created a less dangerous but still awkward procedural issue: if the Title IX Coordinator is the only individual to whom a signed formal complaint can be brought, does this mean the Title IX Coordinator is bringing the required complaint to themself?

  3. This requirement serves only to help recipients exceed the deliberate indifference standard, not to make campuses safer from serially harassing or abusive behavior of individuals within the community. Should the survivors or targets of the behavior in question refuse to or be unavailable to participate in cross-examination, for all the perfectly reasonable reasons we raise in a later section in this comment, these formal complaints are doomed to fail on procedural, rather than evidentiary, grounds. This places recipients in the deeply unethical position of having exceeded the Department’s proposed “deliberate indifference” standard while neither making the campus safer from repeated violent behavior by individual respondents nor restoring a harassment-free educational environment.

§106.45 (b)(1): General requirements for grievance procedures

“Grievance procedures must . . .“[r]equire that any individual designated by a recipient as a coordinator, investigator, or decision-maker not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent”

“Because a grievance process could result in a determination that the respondent sexually harassed the complainant, and because the resulting sanctions against the respondent could include a complete loss of access to the education program or activity of the recipient, an equitable grievance procedure will only reach such a conclusion following a process that seriously considers any contrary arguments or evidence the respondent might have, including by providing the respondent with all of the specific due process protections outlined in the rest of the proposed regulations. Likewise, because the complainant's access to the recipient's education program or activity can be limited by sexual harassment, an equitable grievance procedure will provide relief from any sexual harassment found under the procedures required in the proposed regulations and restore access to the complainant accordingly”

“Paragraph (b)(1)(iii) would also require that coordinators, investigators, and decision-makers receive training on (1) the definition of sexual harassment and (2) how to conduct the investigation and grievance process in a way that protects student safety, due process, and accountability. This proposed provision generally tracks the language in the Clery Act regulations at 34 CFR 668.46(k)(2)(ii) and would apply to all recipients subject to Title IX. The Department believes that such training will help ensure that those individuals responsible for implementing the recipient's grievance procedures are appropriately informed at the elementary and secondary education level as well as the postsecondary education level. Recipients would also be required to use training materials that promote impartial investigations and adjudications and that do not rely on sex stereotypes, so as to avoid training that would cause the grievance process to favor one side or the other or bias outcomes in favor of complainants or respondents.”


  1. There is no clarity as to what constitutes a “general bias” for or against complainants or respondents. A great many professionals in the fields of student affairs, community-based violence prevention and response, and mental health counseling have held a variety of roles of the course of their careers. For example, an individual may assume the role of Title IX Coordinator after a career in victim advocacy, student conduct, or legal private practice focused on harassment and discrimination law. Do these past roles open professionals to allegations of general bias?

    As another example, many smaller or less financially-resourced institutions lack the personnel resources to maintain separate Title IX and violence prevention offices, and so Title IX Coordinators at those institutions are often tasked with prevention and awareness-raising responsibilities. Does engaging in awareness-raising campaigns about the prevalence of sexual violence on campuses, expressing abhorrence at the incidence of sexual harassment on campuses, or attendance at community-organized events (particularly if the Title IX Coordinator becomes the sole recipient of formal complaints and wants to better engage with the campus community) open these professionals to allegations of general bias?

    The Department should clarify its decision-making process and frameworks for this proposed rule.

  2. The Department’s use of language to describe grievance processes and the relative outcomes for complainants and respondents displays a breathtaking lack of regard for complainants as the individuals whose educational civil rights have been violated and access to education needs to be restored. Complainants and respondents are both served by transparent, consistently-applied, procedurally just, and fundamentally fair grievance procedures. Designing trauma-informed systems and processes for survivors of trauma also benefits respondents who are experiencing the stress of a disciplinary process. However, framing the consequences for respondents in such dire language (for consequences they experience only after a formal grievance procedure) attempts to create an equivalency between the stress of moving through a student conduct process and the trauma of experiencing sexual violence and harassment. There is no such equivalency, and the Department’s highly prescriptive efforts to ensure process protections for respondents with no such equitable protections for complainants is a fundamental remaking of the legislative intent of Title IX, reaching far beyond the Department’s purview.

  3. The Department should meaningfully and honestly distinguish between training materials which contain sex stereotypes and those which present the best-available research evidence. In various private damages lawsuits moving forward in federal district courts as well as in complaints to the Department alleging “reverse Title IX discrimination”, the respondents’ bar, in conjunction with men’s rights activists, has attempted to portray peer-reviewed research included in trainings for investigators, hearing officers, and decision-makers as in some way biased or illegitimate.

    One example of this research is the extensive body of scholarship on the impact of traumatic experiences on memory and recall, as well as the interactions of alcohol and trauma on memory and recollection. lf investigators, hearing officers, or decision-makers harbor stereotypes and misconceptions about credibility of a complainant based on misinformation, then it is procedural malpractice that biases the process in favor of respondents to withhold this information.

    Another example would be the distinction between sex stereotypes and data. If a training material says, “All men love sex all the time and women don’t, and that is why you mostly see male respondents and female complainants”, that statement is clearly both a sex stereotype and categorically false. However, if training materials present data about what survivors of all genders report as the gender identity of their perpetrators, and the training asks the trainees to consider the social norms attached to reporting for survivors of all genders and to consider why some survivors may wait longer to disclose their experience than others, that data is neither a sex stereotype nor does it bias the process toward either complainants or respondents.

    The Department is right to focus on the damage that can be caused by sex stereotypes. CAPPA argues forcefully that stereotypes based on sex and the disparate treatment of students based on whether their gender identity or presentation matches stereotypes associated with biological sex is forbidden under Title IX. Not only are LGBTQ students being denied equitable access to education based on these sex stereotypes, but they are experiencing sexual victimization at uniquely high rates. Nearly 1 in 4 transgender, genderqueer, gender non-conforming, or questioning students experience sexual violence during their four years of undergraduate college.

§106.45(b)(3): Requirement to Dismiss Certain Complaints

“[I]f the conduct alleged by the complainant would not constitute sexual harassment as defined in § 106.30 even if proved or did not occur within the recipient's program or activity, the recipient must terminate its grievance process with regard to that conduct.”


  1. Rather than further the legislative intent of Title IX to protect students from harassment and discrimination, this proposed rule bizarrely forces recipients not to address discrimination which they might otherwise have addressed. Elsewhere in the NPRM, “the Department emphasizes that a recipient remains free to respond to conduct that does not meet the Title IX definition of sexual harassment, or that did not occur within the recipient’s program or activity, including by ... investigating the allegations through the recipient’s student conduct code.” This is in direct contradiction with this section, and creates a secondary student conduct process, potentially for the same behavior, with different procedures and requirements, and uneven resources for both complainants and respondents.

    Consider the following example: a student makes a formal complaint to the institution of sexual misconduct by a fellow student. The incident occurred over spring break when both students were traveling on vacation. This conduct is forbidden by the recipient’s code of conduct, but under the proposed rules, the recipient would potentially be required to use a different standard of evidence, different adjudication procedure, different mechanisms for determining supportive accommodations, and the complainant would have none of the civil rights protections accorded by Title IX had the incident occurred one week earlier or later on the recipient’s campus.

  2. The Department goes on in this section to lay out highly prescriptive procedural requirements designed to benefit respondents while appearing to encourage the dismissal of complaints without a complete investigation or any procedural fairness for complainants. This would seem to require that the Title IX Coordinator make a determination as to whether conduct is “severe, pervasive, and objectively offensive” and has resulted in a “denial of equal access” either before or during an investigative process which would likely be necessary to bring forward context and facts which might have material impact on this determination. There is no apparent recourse for complainants to appeal this decision, and in fact the dismissal creates the very real likelihood that the conduct may continue, escalate, or that the complainant will be increasingly denied equal access to the recipient’s educational program.

  3. Conduct which occurs outside of a recipient’s program or activity can still create a hostile environment within it, and recipients have an interest in responding to that conduct. This proposed rule is a fundamental departure from decades of established precedent regarding hostile environment sexual harassment in both employment and educational settings. It also highlights the Department’s fundamental misunderstanding of the interactions between students and their educational programs and activities. It is the year 2019, and with the proliferation of both mobile technology and social media, neither students nor employees are every fully separate from or outside of the programs or activities of their educational environment or workplace. Consider the following:

    While the iconic imagery of college life often invokes images of students living together in dormitory settings, which clearly constitute both campus geography as well as part of the educational program, in fact 87% of U.S. college students live off-campus. However, these students share housing with classmates, socialize with fellow students in local businesses and entertainment venues, and/ or commute to campus with other students living in the same neighborhoods. Of course, nearly 100% of K-12 students are not in residential school settings, and spend considerable amounts of time with their classmates in youth centers, out-of-school and after-school programs, youth sports, and other settings not part of a recipient’s educational programs or activities. Although there is ample opportunity for harassing conduct to occur outside of programs and activities, there is also ample opportunity for the hostile environment to manifest within the educational program and activity.

    The Department has further limited recipients’ ability to address discrimination by proposing to add §106.8(d), saying that “the policy and grievance procedures described in [that] section need not apply to persons outside the United States.” Many recipients maintain campuses and programs outside of the U.S. that are extensions of their U.S. campuses and enroll U.S. students from their own and other institutions no differently than they would if the student was in the U.S. Further, the U.S. Department of State confirms that over 300,000 students each year study abroad, a number that grows year over year as global education becomes increasingly central to U.S. higher education. Beyond these formal study-abroad programs, countless other students at the graduate and undergraduate level are engaged in research, fieldwork, and data collection abroad, across a huge range of fields: languages, arts, anthropology and sociology, biology, medicine, geosciences, environmental science, political science and global studies, and more. This behavior--sometimes perpetrated by other students, but also by faculty, graduate advisors, and other employees--has significant implications for the academic and career trajectories of students enrolled at and employed by higher education recipients.

    This segment of the NPRM, taken together with the actual notice requirement and the inability of recipients to do anything other than offer non-punitive, non-disciplinary supportive measures is likely to result in complainants being forced from their schools to avoid the hostile environment that the Department is saying their institutions are no longer responsible for redressing.

§106.45(b)(3): Investigations of a Formal Complaint

“For institutions of higher education, the recipient's grievance procedure must provide for a live hearing. At the hearing, the decision-maker must permit each party to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at a hearing must be conducted by the party's advisor of choice, notwithstanding the discretion of the recipient under § 106.45(b)(3)(iv) to otherwise restrict the extent to which advisors may participate in the proceedings. If a party does not have an advisor present at the hearing, the recipient must provide that party an advisor aligned with that party to conduct cross-examination. All cross-examination must exclude evidence of the complainant's sexual behavior or predisposition, unless such evidence about the complainant's sexual behavior is offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the evidence concerns specific incidents of the complainant's sexual behavior with respect to the respondent and is offered to prove consent. At the request of either party, the recipient must provide for cross-examination to occur with the parties located in separate rooms with technology enabling the decision-maker and parties to simultaneously see and hear the party answering questions. The decision-maker must explain to the party's advisor asking cross-examination questions any decision to exclude questions as not relevant. If a party or witness does not submit to cross-examination at the hearing, the decision-maker must not rely on any statement of that party or witness in reaching a determination regarding responsibility” and “Provide both parties an equal opportunity to inspect and review evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the recipient does not intend to rely in reaching a determination regarding responsibility, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation. Prior to completion of the investigative report, the recipient must send to each party and the party's advisor, if any, the evidence subject to inspection and review in an electronic format, such as a file sharing platform, that restricts the parties and advisors from downloading or copying the evidence, and the parties shall have at least ten days to submit a written response, which the investigator will consider prior to completion of the investigative report. The recipient must make all such evidence subject herein to the parties' inspection and review available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination.”


  1. The Department exceeds its authority by attempting to apply principles of criminal law to both regulatory compliance and school disciplinary settings. There is a wide range of conduct that occurs in school settings that can be both simultaneously criminal or result in suspension or expulsion from an institution. Examples can include non-intimate physical assault, theft, drug violations, or academic dishonesty and plagiarism. Courts have repeatedly established that schools owe a duty of fundamental fairness in these cases but not an adversarial quasi-criminal process or the right to direct cross-examination. By singling out sexual assault and harassment in particular for highly prescriptive process rules focused intensively on evidence production and credibility determinations, the Department implies that complainants in sexual harassment cases are uniquely likely to bring spurious allegations, lie, or lack credibility, which not supported by any credible research evidence. In fact, the Department actually exceeds the procedural elements of a criminal court environment by requiring that “the recipient explain any decision to exclude questions on the basis of relevance.” This explanation is not required on the spot in criminal litigation. Procedural error is a grounds for appeal in every institution we are aware of, and so either party has the right to raise inappropriately excluded evidence as a procedural matter in appeal. Requiring this to occur in a hearing format has the potential to make these hearings interminable, and to make protracted oral arguments between advisor-attorneys and hearing officers over inadmissible evidence like past sexual history torturous for students.

  2. The limitations in recipients’ training, expertise, and technical resources to implement this proposed rule will result in fundamentally unfair processes and cause the implementation process itself to become discriminatory. First, cross-examination is a technical legal skill. It is simply impossible for a process to be equal or equitable when one party is advised by legal counsel experienced in litigation and the other by a recipient-assigned student affairs staff member.

    Second, the NPRM’s estimate of costs to recipients vastly underestimates the costs to institutions for this proposed rule. Currently, students who choose to retain an attorney are in the minority of parties to Title IX cases. In cases where attorneys are utilized for cross-examination, a hearing officer must have the training and expertise to effectively manage that process, thereby increasing schools’ financial investment in a disciplinary process and most likely diverting funds away from the actual educational programs they are designed to create and substantively constructing a court of law in a conduct process.

    This subsection of the NPRM clearly reflects the extensive lobbying of the respondents’ bar, who stand to profit immensely from the implementation of these rules, at the expense of complainants’ education and recipients’ economic resources which could have been otherwise directed toward prevention strategies.

  3. The Department’s proposals around access to evidence are contradictory, chaotic, and traumatizing for survivors of sexual assault. Even the criminal court system allows for survivors of serious crime to access flexible testimony options given an understanding of how traumatizing being directly questioned by the alleged perpetrator or their counsel could be. Research has begun to reinforce what the advocacy field has observed and amplified for a long time: cross-examination may actually be less reliable than other more trauma-informed interviewing techniques, precisely because of the nature of traumatic memory creation and storage. Complainant affect and emotional state during an adversarial cross-examination correlates more highly to their unconscious traumatic triggers than it does to the veracity of their story. Traumatic memories are also potentially more susceptible to suggestive questioning, thereby creating a less reliable process on top of a traumatic one.

    Further, the Department has stated in its preamble that “there are no rules of evidence in Title IX grievance processes; and Title IX grievance processes do not afford parties discovery to the same extent required by rules of civil procedure.” Yet, the Department has proposed highly prescriptive rules dedicated to creating a discovery process for private student information to which parties have no right or expectation of access. For instance, a witness in a sexual misconduct case may raise in their investigative interview the matter of the complainant seeking mental health care through the recipient’s health services. If the complainant’s mental capacity at the time of the incident is not at issue, and the witness is raising it merely to suggest that by seeking mental health care the complainant is somehow not credible, that information is both irrelevant and protected. However, the Department seeks to make that available for review and dispute both in the investigative report process as well as in a hearing. The possibility of having to repeatedly fight to exclude protected health, academic, and personal information which the respondent will have access to anyway can only have a chilling effect on students’ willingness to bring formal complaints to their institutions.

§106.45 (b)(6): Informal Resolution

“We propose adding § 106.45(b)(6) stating that at any time prior to reaching a determination regarding responsibility the recipient may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication, provided that the recipient provides to the parties a written notice disclosing 1) The allegations; 2) The requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations, if any; and 3) Any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared. The recipient must also obtain the parties' voluntary, written consent to the informal resolution process.”


  1. The Department is conflating several modes of resolution with vastly different philosophical frameworks and technical requirements. It is true that many survivors of violence seek justice outcomes that are not available through either a criminal legal, civil legal, or student conduct disciplinary process, all of which focus to varying degrees on whether there is sufficient evidence that the defendant or respondent’s conduct rises to the level of a legal or policy violation. Restorative and transformative justice practices hold great promise for educational communities seeking to repair the wider harm of sexual harassment, sexual assault, and other forms of gender-based discrimination and harm. However, Howard Zehr, the American criminologist who has been at the forefront of articulating restorative justice practices in educational settings draws the following distinctions between restorative justice and mediation or alternative dispute resolution (ADR): “ADR and mediation usually assume that there is a kind of moral balance between parties.  Restorative justice assumes that all participants are moral agents and acknowledges that moral responsibility may be shared; however, there is usually a moral imbalance that must be explicitly acknowledged.  Someone has caused harm and someone has been harmed, and that fact is placed in the center of the encounter. [...] Although all parties may have some responsibility for the event and/or the outcomes, restorative justice usually provides space for wrongdoing to be named. [...] ADR often envisions its facilitators as neutral or impartial; RJ practitioners are more likely to see their role[...]as ‘balanced partiality.’  RJ facilitators cannot be neutral or impartial about the harm that was done.”

    Mediation might be appropriate in a situation where, for example, a roommate is repeatedly locking their roommate out of the shared room while they have consensual sex with a partner. In this circumstance, both parties have legitimate interests (privacy for one, access to the shared room for the other) and a compromise is possible (agreements about communication and sufficient notice-giving, established times when both roommates need to have access to the room, etc.). But approaching a circumstance where one individual is responsible for significant harm and violence to another as though both parties are identically situated disputants who share equal culpability for resolution, and especially to trade this process for things like agreements about supportive measures which the recipient should be providing anyway, is an egregious miscarriage of the legislative intent of Title IX.  

  2. The Department should comment at length on what has changed in its interpretation since the 2001 guidance which expressly forbids mediation. While the 2001 guidance also allows for the prospect of informal resolution, the Department has previously stated that “OCR has frequently advised schools, however, that it is not appropriate for a student who is complaining of harassment to be required to work out the problem directly with the individual alleged to be harassing him or her, and certainly not without appropriate involvement by the school (e.g., participation by a counselor, trained mediator, or, if appropriate, a teacher or administrator). [...] In some cases, such as alleged sexual assaults, mediation will not be appropriate even on a voluntary basis [emphasis added]. Title IX also permits the use of a student disciplinary procedure not designed specifically for Title IX grievances to resolve sex discrimination complaints, as long as the procedure meets the requirement of affording a complainant a “prompt and equitable” resolution of the complaint.” In the NPRM, the Department has completely reversed course on this guidance. The Department has also introduced a highly prescriptive proposal for investigation and adjudication of formal complaints, and so it is startling to see that the Department is offering the chance for informal resolution with no frameworks at all. Given that several other provisions in the NPRM coalesce to create significant procedural advantages for respondents at the expense of complainants, we fear that the lack of specificity about informal resolution is intended to encourage recipients to develop a patchwork of procedures which have the intent and effect of exceeding the deliberate indifference standard while helping respondents avoid reportable disciplinary action that would be visible to future educational institutions or employers, and simultaneously depriving complainants of any civil recourse.

IV. Responses to Directed Questions

Directed Question 1: Applicability of the rule to elementary and secondary schools

The Department errs in presuming that the type of institution--higher education, elementary, or secondary--is the sole determinant of the age of students present in its programs. The NPRM is inappropriately prescriptive at the higher education level, leaving no latitude for institutions to address child sexual abuse within college and university programs and activities in a way that is developmentally appropriate for the age of the young people involved.

Indeed, a large number of colleges and universities operate child care centers serving children ranging from infancy to school age; operate or house youth sports and enrichment programs utilizing campus facilities, and staffed by campus employees and/or college students. Ensuring that these environments are free from sexual harassment and misconduct is certainly within the purview of Title IX, but by removing the responsible employee designation, the NPRM does not leave sufficient latitude to address these situations.

Further, thousands of high school students are jointly enrolled in both a secondary school and classes at community colleges and universities across the country. This raises challenges in key areas:

    1. Actual knowledge: it is unreasonable to expect a high school student taking a single class at a college or university could meaningfully discern the difference between a report to a staff member of their high school versus their college, nor the difference in authority to redress the situation between a professor, a Title IX Coordinator, or a high school guidance counselor.

    2. Hearing process: 106.45(b)(3)(vii) has specified that live hearings are required only at the higher education level, which means that were a high school student to harass or assault a fellow classmate, the same conduct by the same individual would produce two entirely different processes depending on the program into which the student was classified.

Directed Question 2: Applicability of provisions based on type of recipient or age of parties

In the NPRM, the Department has confined its analysis of equity to age, distinguishing only between legal ages of majority and minority. This does not take into account that harassment and a hostile environment can be caused and experienced by people who are both over 18 but vastly differently situated within the institution and not in a peer-to-peer relationship to one another. Indeed, the institutional position of the complainant relative to the respondent may be one factor which contributes to the creation of a hostile environment.

Directed Question 6: Standard of evidence:

We can link the appropriate standard of evidence in Title IX cases to two concepts: seriousness of the penalty imposed (which in these cases will never exceed anything other than expulsion from a given institution or termination of employment, not incarceration or court supervision) and the standards employed in similar kinds of cases. 

Title IX demands that recipients address sex-based discrimination: behavior that in some cases, particularly those involving the most serious forms of sexual misconduct overlaps the realms of student conduct, civil rights, and criminal law. Detractors of the 2011 Dear Colleague letter have made an effort to portray the preponderance of the evidence standard as new and lacking in precedent and merit.

However, in the 2001 Department rules, the Department reaffirms that the definition of actionable gender-based harassment derives from a Title VII-based definition of harassment. Given that preponderance is the standard in Title VII discrimination cases, it is only appropriate to use a consistent and established standard of evidence for both types of civil rights cases. To do otherwise means that Secretary DeVos is advocating that children in K-12 schools and students in higher education are less deserving of civil rights protections than adults in the workplace.

It is worth posing the question as to whether the push to abandon preponderance as the evidentiary standard is designed to limit the likelihood of any student being found responsible for sexual misconduct via Title IX processes. We are in agreement that the charge for schools is to safeguard the educational civil rights of students who have experienced gender-based violence and sex discrimination and not to create a copy of the criminal legal apparatus. Certainly, then, schools will never have at their disposal the power of subpoena, criminal discovery processes, or crime labs, nor should they. Schools are not finding students guilty or not guilty of violating criminal statutes. If it is impossible to meet the clear and convincing standard with the investigative tools and structures available, it renders the policies, accountability, and remedies of a civil rights process functionally meaningless.

Our colleagues from a range of associations--the National Women’s Law Center, the Association of Title IX Administrators, the Victim Rights Law Center, and many of our institutions--have spoken in their own comments at great length about the well-established precedent of preponderance of the evidence as the appropriate standard for Title IX cases. The vast majority of higher education institutions were using preponderance of the evidence before the 2011 DCL. In surveying our membership for these comments, all of the institutions represented in the responses continue to use preponderance of the evidence as the standard in their Title IX cases, even following the 2017 recission of the DCL.

We are further in agreement with our colleagues on the following points:

  • Given the legal foundation established in Title VII, while it may be appropriate to use preponderance as a unified standard of evidence for both student and employee cases of sex- and gender-based discrimination, the Department has overstepped its bounds in mandating a unified standard of evidence for non-discrimination conduct cases, particularly with regard to employees.

  • The use of clear and convincing as a standard in Title IX cases singles out victims of sexual harassment and abuse for uniquely less protection than victims of race- or disability-based discrimination. Perversely, because of a litany of employment-based rules via Title VII and cases involving the EEOC, students of an educational institution are in a position to have less protection than employees of that same institution.


We look forward to further dialogue with the Department as you incorporate these comments and others into the final rules.

These comments are approved and submitted by the CAPPA Leadership Council on behalf of our membership:

Meg Bossong, MS; Wanda Swan, MA; and Drew Rizzo, MS; Co-Facilitators

LB Klein, MSW, MPA and Michelle Bangen, MPH, CHES; Research Co-Chairs

Lee Helmken Cherry, MPH, CHES; Membership Chair

Kelly Wilt, MS and Rachel Stewart, Ed.M.; Communications Co-Chairs

Megan Selheim, MFA; Training Chair

Zachary Ahmad-Kahloon, MPH; Professional Standards & Legislative Advocacy Co-Chair

Marianne Frapwell, MSW, MBA and Connie Adams, MSW; Board Development Co-Chairs

*Special thank you to CAPPA committee volunteers, Johanna DeBari and Liz Zadnik, and all of the CAPPA members who contributed feedback for the development of this letter.


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