This article originally ran in The Legal Intelligencer on January 29, 2019.
As the 60-day period for public comment to U.S. Secretary of Education Betsy DeVos‘ proposed Title IX guidelines comes to a close, comments released this week by Pennsylvania Gov. Tom Wolf and several prominent Philadelphia attorneys highlight how divisive—and deeply personal—the issue of schools’ handling of sexual misconduct allegations has become.
In a letter to DeVos dated Jan. 29, Wolf said he was writing to express his “deep concern” about the proposals “[a]s governor of Pennsylvania—and as a parent and grandparent.”
“These proposed changes send a dangerous message that sexual harassment and sexual assault do not warrant action from our schools and campuses,” Wolf wrote. ”If adopted, they would also undermine decades of progress built on the foundational understanding that schools have an obligation to effectively prevent and address gender-based discrimination, harassment, and violence to ensure that all students have equal access to a full education.”
The proposed changes, which are for nearly all colleges and universities as well as K-12 public schools and some private schools, include the reversal of many Obama administration rules. Among the more controversial provisions in the proposed guidelines are a narrowed definition of sexual harassment as “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” and a mechanism for cross-examination of both the accused and accuser by an attorney or other third party.
The public comment period is set to close Jan. 30.
Wolf said in the letter that the proposed changes “will effectively take us back to a time where these issues were hidden away, unacknowledged and unaddressed.”
“We cannot go back,” he said. “We cannot tell survivors that they cannot be helped unless their victimization fits narrowly-defined criteria, or unless they are willing to undertake the significant burden of a prescribed disciplinary process that prioritizes unfounded fears over evidence-based concerns for individual and collective safety and well-being.”
In a press statement, Wolf said he was “appalled” by the proposed Title IX guideline changes.
But Patricia M. Hamill and Lorie K. Dakessian, both partners in Philadelphia-based Conrad O’Brien’s Title IX, due process and campus discipline practice, co-wrote comments along with David Rudovsky, a senior fellow at the University of Pennsylvania Law School and a longtime civil rights and criminal defense lawyer with Kairys, Rudovsky, Messing, Feinberg & Lin, arguing that the proposed changes “are not anti-survivor and are not designed to protect people who commit misconduct.”
“They are an effort to make sure decisions are made after a process that is fundamentally fair to both parties,” they said in their Jan. 28 comments, titled “Comments of Concerned Lawyers and Educators in Support of Fundamental Fairness for All Parties in Title IX Grievance Proceedings.” The document was co-signed by more than three dozen attorneys and educators from across the country.
The attorneys did make several recommendations, however, including suggesting that the Title IX regulations should include the full definition of “sexual assault” set forth in 34 CFR 668.46(a).
“We believe addition of this definition to the Title IX regulations will address the concerns of those who have asserted that Title IX grievance procedures should be available for a single alleged instance of sexual assault,” they said.
They also called for more guidance on which conduct is and is not covered under Title IX.
“We note, for example, that student housing, even if not owned, operated or overseen by the school, can be part of the educational experience and by extension part of the school’s educational program or activity,” they said, while also recommending that the guidelines require schools to include jurisdictional provisions in their Title IX policies.
Hamill, Dakessian and Rudovsky also registered their support for the provision in the proposed Title IX guidelines that would allow for more resolution options beyond adversarial proceedings.
“For some cases, a constructive, non-punitive approach, in which schools take steps to resolve the specific concern and prevent recurrence of troublesome behavior while still ensuring that both parties can pursue their education, may be preferable and can avoid the disruption and potential long-term effects for both parties that result from a formal proceeding,” they said. “Informal resolution processes are equally, if not more, appropriate when a complainant reports conduct that does not fit the Title IX definition, for example, conduct that is unwelcome but not necessarily severe and pervasive and does not constitute assault.”
And they urged the adoption of a uniform “clear and convincing evidence” standard in sexual misconduct cases.
“As a court recently held, the preponderance of the evidence standard is not sufficient to protect against unreliable determinations for serious charges that carry the potential for life-long consequences,” they said.
Hamill also penned her own comment in support of the proposed changes.
“I am a feminist, married to a woman, graduate of a women’s college, mother of two teenage sons and a college age daughter, and a liberal Democrat,” Hamill wrote. ”I am also a lawyer who in the past five years has represented more than 100 accused students around the country, almost all young men, in college Title IX/sexual misconduct proceedings and in litigation growing out of those proceedings.”
In an effort to illustrate the need for Title IX guideline changes, Hamill laid out several scenarios, derived from real cases she’s witnessed, that demonstrate how the adjudication process can be stacked against the accused.
“The point is that the process should be fair to both complainants and respondents, to both men and women” Hamill wrote. “The Department’s proposed reforms are an effort to make sure that schools give accused students proper notice and a meaningful chance to defend themselves before impartial decisionmakers, and that schools consider all the relevant evidence, not just the evidence the complainant selects. Both accusing and accused students have a right to be heard. Neither has a right to be automatically believed.”
A Department of Education spokesperson did not respond to a request for comment.
Read the “Comments of Concerned Lawyers and Educators in Support of Fundamental Fairness for All Parties in Title IX Grievance Proceedings” here.
Read Hamill’s Separate Comment here.