Reasons to Oppose Proposed Changes to Title IX, Part Four: They Discourage Students from Reporting

BARCC is submitting public comment to U.S. Secretary of Education Betsy DeVos detailing the reasons why the Office of Civil Rights at the Department of Education (OCR-DOE) should not adopt a proposed Title IX rule related to responding, investigating and adjudicating reports of sexual assault and misconduct in schools that receive federal funding. (Title IX is the federal civil rights law that prohibits discrimination on the basis of sex in federally funded education programs and activities.)

As we stated in our comment, BARCC believes the proposed rule “reinforces myths about sexual violence, favors offenders, and undermines procedural justice for survivors.” That is unfortunate given the epidemic of campus sexual assault and harassment and its effect on survivors, who may become “depressed and anxious, fall behind in their school work, and even drop out of school.” We can and must do better by survivors if we are to change campus climate around sexual assault.

The following excerpt from our comment on how the new proposed rule will result in procedures that discourage reporting Title IX violations is the fourth in a series of five blog posts that break down our reasons for opposing it. Read parts one, two, and three. 

Research shows that most incidents of school-based sexual harassment or assault are never reported. The primary reasons for not doing so are “shame, guilt, embarrassment, not wanting friends and family to know; concerns about confidentiality; and fear of not being believed.”

Fortunately, there is a wealth of evidence-based best practices developed over decades of direct service work with survivors from which to draw when designing sexual assault reporting procedures. The most effective reporting systems are flexible enough to give survivors as much control as possible over how they report sexual harassment and assault, including the option to maintain anonymity and/or report the crime without pursuing criminal charges.

The proposed rule gives only one reporting option for students who have been sexually harassed or assaulted. They must file a “formal complaint” with the school’s Title IX Coordinator or another official who “has the authority to institute corrective measures on behalf” of the school. Additionally, filing a formal complaint will automatically trigger the school’s “grievance procedures.” At the start of an investigation, schools that prohibit “knowingly making false statements” in their code of conduct must send a letter to each student in the investigation warning them that could be disciplined for making false statements during the grievance proceedings. Thus, a student reporting sexual harassment or assault will have to weigh the risks not just of participating in a proceeding that is stacked against them to begin with, but of participating in a proceeding that might result in their being punished if they are not believed.

We urge OCR-DOE to require survivor-based reporting requirements of sexual harassment and assault in the proposed rule. Guidelines for reporting sexual assault adopted by the U.S. Department of Defense in 2004 provide a model for schools, colleges, and universities. In 2004, after years of media reports of widespread sexual assault occurring within each branch of the military, the Office of Sexual Assault and Response of the U.S. Department of Defense reformed the sexual assault reporting process. Until then, the military’s strict chain of command put many survivors in the position of having to report their assault to the person who had committed the offense, or to a close colleague of the offender. Today, survivors can report a sexual assault directly to the Office of Sexual Assault and Response or to outsiders, including health-care providers and civilian law enforcement. Survivors are given the option of remaining anonymous and requesting that their report not be forwarded along to any other authority.

The new procedures made it much safer for survivors to report incidents of sexual assault and harassment. Within two years of overhauling the reporting process, reports of sexual assault from active duty military personnel dramatically increased, giving the military much more accurate assessments of the true rates and risks of sexual assault. With that information, much more effective interventions were designed and implemented to lessen those risks. As a result, recent surveys of servicemembers have found that rates of sexual assault of active duty women have been cut in half and rates of sexual assault of active duty men have been cut by two-thirds.

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If you think that systems should be in place that encourage the reporting of Title IX violations instead of discouraging them, then please join us in urging the U.S. Department of Education to reconsider its proposed new regulations for Title IX by submitting a public comment by Wednesday, January 30, at 11:59 p.m.

Wondering how to make your comment effective? Here are a few tips:

• Use your own words for the most impact! Your comment is more likely to be taken into consideration if it’s not a duplicate message from a template.
• Incorporate personal stories to support your arguments.
• If you have a particular perspective or expertise, whether as a survivor, an advocate, a lawyer, etc., make note of it!
• Include suggested solutions to your concerns. We don’t just want to say what’s wrong; we also want to help guide how the problems can be fixed.

Read part five in this series.

Updated January 24, 2019, to reflect new public comment deadline.