Proposed Federal Title IX Regulations Update

January 22, 2019

Dear Students, Faculty, and Staff Members,

Welcome back to campus after what we hope was a restorative holiday break. As we begin the semester, we want to share an update on the College’s response to the regulations proposed by the Department of Education (DOE).

As you may recall, newly-proposed changes to federal Title IX regulations were introduced in mid-November and became open for a 60-day public comment period on November 29. We shared information about this process with the community in a message on December 4. We have also worked to formulate the College’s response, which you can view in detail below.

The timing of the DOE’s notice and comment period was not ideal, since, like many schools, the College was beginning finals before closing for the break. However, there are still a few more days to provide your own public comments. The comment period, originally set to close on Monday, Jan. 28, 2019, has been extended to Wednesday, Jan. 30, 2019, due to a recent period during which the comment portal was unavailable. When the comment period ends, DOE said they will evaluate comments before issuing final regulations later in 2019.

We believe that Swarthmore must advocate for our community members and share our concerns before the final regulations are enacted. Along with several other small liberal arts colleges, we plan to sign a letter that captures and expands upon our concerns. The Title IX Office will share this letter with the community. In addition, we will submit Swarthmore’s institutional response to the DOE to further highlight the effect these regulations could have on our community.  

The proposed regulations are just that -- proposed -- and our current Title IX process remains in effect. Regardless of what the final regulations are, Swarthmore will continue to provide resources, support, and options to all of those affected by sexual harassment and sexual violence. We will also follow the law to ensure that we provide clear and balanced channels for receiving and responding to concerns.

We are grateful to Kelley Hodge, who drew on her considerable expertise in Title IX to serve sensitively and effectively as Interim Title IX Coordinator last fall. We thank all of you for your partnership as we work together to ensure the safety and wellbeing of all members of our community.

Sincerely,

Valerie Smith, President

Bindu Jayne, Title IX Coordinator

Swarthmore College Response to Proposed Federal Title IX Regulations

Swarthmore is committed to providing a clear, fair process for all parties and to ensuring that Title IX coordinators, investigators, and decision-makers are free from bias and conflicts of interest. While the proposed regulations appear to offer colleges the flexibility to pursue informal resolutions -- an option that members of our community have asked us to explore -- several of the proposals provide cause for concern. For example, the proposed regulations would limit the College’s ability to investigate complaints of sexual harassment that originate off campus. More generally, several regulations have the potential to discourage survivors from reporting, as we detail below. We strongly believe that any procedures that discourage survivors from reporting will undermine the intention of Title IX and endanger the welfare of our community.  

Even when reports of sexual harassment and sexual violence are made, we fear that these proposed regulations could greatly reduce the willingness of the parties as well as witnesses to come forward and participate in our resolution processes, thus increasing the likelihood of harassment being pushed underground on our campus. Without the participation of the parties and witnesses, we are essentially stripped of our ability to evaluate and address harassment in any thorough and meaningful way. Our responsibility, as noted in the Office for Civil Rights’ 2011 guidance on Title IX, is to take “prompt and effective action calculated to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects.” Where we know or should know of an incident of sexual harassment or sexual violence, we must take steps to understand what occurred and to respond appropriately. This is ultimately our charge, pursuant to well-established Title IX guidance, and any new guidance should not subvert this long-standing goal.

Specifically, the proposed regulations would require that campuses allow cross-examination of the parties by each party’s advisor. These advisors can be external to the College and may be attorneys. The inclusion of cross-examination by third-party advisors/attorneys conflates the criminal justice process with the administrative Title IX process and would subject our students to a level of direct interrogation that would be traumatizing. Many complainants, respondents, and witnesses are likely to be unwilling to endure this treatment. Furthermore, requiring the parties to be subjected to cross-examination potentially compromises their legal position in criminal as well as civil proceedings. The ability of parties to retain external attorneys to conduct this cross-examination also highlights equity issues that arise when one party has financial means to hire an attorney and the other does not.

We are troubled by the possibility that survivors of sexual violence would refrain from pursuing a formal Title IX process to avoid cross-examination. They may also choose not to participate because of the possible harm that cross-examination would do to their involvement in criminal proceedings, or because they are financially unable to retain outside counsel. While the proposed regulations would require schools to provide an advisor aligned with the party for the purpose of cross-examination when a party does not have an advisor, it fails to explain what is actually meant by provide. Besides the financial disparities that are certain to emerge, there will inevitably be equity issues about the differing level of skill, acumen, training, experience, and expertise of advisors. In addition, by requiring schools to provide this “cross-examination-advisor,” this rule increases the vulnerability of schools to complaints and legal challenges when those advisors are criticized for having been mismatched.

In addition to our other concerns about subjecting parties and witnesses to cross-examination, we are concerned about the mandate to disregard any statement of a party or witness who does not submit to cross-examination. Since “any statement” is not defined, it is not clear how this rule would apply. For example, would “any statement” include inculpatory and exculpatory text messages, emails, voicemails, notes/letters, etc.? Such an interpretation would bind our hands and would prevent adequate review and consideration of information clearly relevant to the complaint.

Another proposed regulation would require schools to disclose to the parties all of the information obtained during the investigation, even if that information was not used during a proceeding. This effect of this regulation is that it would require sharing with the complainants and respondents highly confidential information about the parties and the witnesses. Often investigators are provided medical information, mental health information, and/or information about past sexual history that is not included within the investigative report because it has no bearing on whether or not harassment occurred. This proposed regulation would both unnecessarily violate the privacy of the disclosing party or witness and stymie a skilled investigator from gathering information out of fear that this unrelated, personal information would need to be revealed. This is truly harmful and possibly destructive to anyone who would engage in the formal Title IX process.

We hope that the Department of Education will use and incorporate this feedback—along with thousands of comments from other institutions and individuals—to refine its proposed regulations. Together with all institutions of higher learning, the DOE has a duty and responsibility to provide a safe and supportive environment where all students can thrive.