COLORADO or. Melo Department of over BigherEduestion AY January 7, 2019 Secretary Betsy DeVos (fo Brittany Bull Department of Education ‘400 Maryland Avenue, SW Room 6E310 ‘Washington, DC 20202 Docket ID ED-2018-0CR-0064 Dear Secretary DeVos, ‘This letter is intended to provide formal comment pursuant to the request for public ‘comment on the U.S. Department of Education's draft rules on Title X, as published in the Federal Register on November 29, 2018 under the ttle "Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance" (61 FH 61462). {As the Department's fice of Civil Rights is well-aware, the letter and spirit of Title IX of the Education Amendments of 1972 is to protect students from discrmination on the basis of sex that may impact their ability to exercise an equal right to education, The ‘comments presented here are motivated by an ongoing commitment to the purpose of the original lay—as reflected in a concer for the impact that the new draft rules would have on students in Colorado if they were to be enacted as drafted, While we have a range of concems, we have limited our formal submission to three ‘comments, one general and two specific. 1) In general, the draft rules suggest a conflation ofthe intent of Title IX with the broader responsibilities of the criminal justice system. Furthermore, the rules donot appear to be drafted with a good faith concern for the civil rights of students who may be subject to discrimination on the basis of sex in educational settings. Rather, these rules appear to have been motivated by a desire to tit the balance against victims and survivors in favor of the accused. Title IX does not exist to set generally applicable standards for sexual harassment or assault (though surely a knowledge and qood faith subscription to ‘such standards are a necessary component of carrying out responsibilities under Title 1X) Nor was it enacted with the intent of creating a parallel to the criminal justice system for the purpose of prosecuting sexual harassment and assault. ‘Our criminal justice system is (rightly) biased in favor ofthe acoused because we have decided as a society that Ife and liberty are more effectively protected ‘when we are skeptical when the state seeks to deprive an individual of liberty or livelinood. We should be wary of carrying that bias in favor of the accused into ‘other realms without scrutiny, for those other realms may not warrant it in the ‘way that the singular relationship of the state to an individual under its power does. Though essential to our system of criminal justice, elsewhere in society a bias in favor of the person alleged to have caused harm may lead to a perversion of fairess and an affront to equality among individuals. We know that sexual harassment and assault are underreported on college campuses (see, for example, Krebs el al. “The Campus Sexual Assault Study", National Institute of Justice, 2007 available at: hos /Avwnw.ncirs.qoviodffiles/ni/grants/221153.pdf). The proposed rules ‘appear, in general, likely to exacerbate that problem, which is to say to enlarge the number of U.S. and Colorado students who are victims of sexual harassment and eoxual accault that conatitute dicorimination on the basia of sex in educational settings and who are without remedy or appropriate response, The cost estimate associated with the proposed rules forecasts savings (presumably because the Department forecasts fewer enforcement inquiries and proceedings related to Title IX.) This is telling. The revenue impact does not appear to ‘account for the lost future tax revenue that would have been collected on the higher salaries of students who are afforded equal access to education free from discrimination, or the reduced future health care costs attributable to campuses. that take more effective measures to prevent sexual harassment and assault and provide appropriate redress to victims. 1600 oni Suite 20, Benen, C086 8h A |2) 3) Of course, any rules should endeavor to treat each student as an individual, and in the administration of the rules, human beings must affirmatively strive to actin ‘goodfaith and avoid errors. Every institution should treat each student fairly— Whether sihe is a complainant or sfhe is accused of misconduct. However, the draft rules seem motivated largely by concerns for the interests of the accused, ‘They do not reflect adequate concem for vietims and survivors, nordo they reflect appreciation for the fact that our current systems for addressng sexual harassment and assault in the educational context leave thousands and ‘thousands of instances of discrimination on the basis of sex unaddressed, Comment on proposed rule § 106.45(b)(3) (providing for live hearings with cross examination). The provisions in the draft rules that would require institutions of higher education to conduc live hearings that would provide an opportunity for ‘cross examination by the advisor of the accused and the survivor are misguided, Experts on sexual assault and post-traumatic stress can (and Ihave no doubt wil) provide comment on why these provisions are so concerning wth regard to the potential to inflict further harm on victims. However, these provisions are also ‘concerning from an administrative standpoint. The principal mission of colleges and universities does not include the creation of a facsimile of a court system designed to adjudicate criminal complaints. These provisions would require ‘complex administrative burdens, potentially including the hiring of legal counsel by institutions and creation of dedicated physical plant. Given their disparity with the normal function and purpose of institutions of higher education, hese provisions in the dratt rules are unlikely to be implemented with consistent high ualiy, thereby creating new forms of inequity in an effort to address perceived existing challenges. The provisions requiring live hearings with cross cexarrination should be eliminated from the draft rules before enactment. ‘Comment on proposed rule § 106.30 (defining sexual harassment). ‘The Department has stated that it defines sexual harassment as: ‘ther an employee of the recipient conditioning the provision of ana, benefit, (or service ofthe recipient on an individual's parcipaton in unwelcome sexual Conduct; or unwelcome conduct on the basis of sex tha is 80 severe, pervasive, and objectively offensive that it effectively denies a person equal azcess to the recipient's education program or activity, or sexual assault as defied in 24 CFR £668.46(a), implementing the Joanne Clery Disclosure of Campus Security Policy 1000 Brady, Sue 201, Gener, CO aio? em sa |