Monaco's letter to Department of Education criticizes Title IX sexual harassment reform proposals

University President Anthony Monaco condemned Secretary of Education Betsy DeVos' proposed changes to Title IX sexual misconduct policies in a letter released to the Tufts community this morning. Monaco’s letter, submitted yesterday, critiqued a number of the proposals, including limitations on the definition of sexual harassment, the range of Title IX, changes to adjudication and restriction of employees held responsible for misconduct.

The Department of Education drafted the new proposals, which were released on Nov. 16, 2018. In a press statement, the department announced a 60-day public comment period. Monaco’s letter was submitted on the final day of the period.

The letter’s first target was the limitation of the definition of what is considered sexual harassment and assault.

Wendy Murphy, a former prosecutor and current adjunct professor of sexual violence law at New England Law Boston, who has won Title IX lawsuits against Harvard University and Princeton University, said that the new guidance would raise the bar on what is considered to be sexual harassment.

Murphy explained that the existing standard requires colleges to investigate reports of any “unwelcome” behavior linked to sex as sexual harassment, whereas the new proposals require that behavior be severe, be pervasive and present an obstacle to education access to be investigated.

Murphy called this an insurmountable barrier to reporting, as the most egregious violations may not be pervasive or prevent access to education.

In the letter, Monaco wrote that the new definition would make it more difficult to stop behavior before it became severe and pervasive, and that this would have the greatest negative impact on traditionally marginalized communities.

Murphy stressed that this definition treats women as second-class citizens, as it would make the standard for sexual harassment more stringent than discrimination based on race or national origin; these categories which would maintain the lower “unwelcome” standard.

Monaco also addressed the proposed limitation of investigations to misconduct that took place on campus. He cited the fact that the nearly all Tufts graduate students, faculty, staff and 35 percent of undergraduates live off campus.

“To impose an enforcement boundary at the campus perimeter would unduly limit the school’s ability to meaningfully address sexual misconduct in our community, hinder accountability and most assuredly inhibit reporting,” he wrote.

Murphy called this proposal “mind-boggling,” as the university has the ability to intervene in other off campus student behavior.

The draft rules would also replace the investigator-based model with a hearing during which the the accused could, through an advocate, cross-examine the accuser, according to the letter.

According to Monaco in today’s letter, Tufts has previously used the hearing process but did away with it in favor of the investigator-based model following concerns raised in the Tufts community. The letter said that this move was followed by a “substantial” uptick in investigations and disciplinary action.

“We are concerned that the proposed regulations’ requirement of a formal, adversarial court-like hearing for sexual misconduct matters would significantly and negatively impact our community members’ emotional and physical well-being and be detrimental to Tufts’ ability to ensure a safe and accountable campus,” Monaco wrote.

Peter Lake, professor of law at Stetson University College of Law and director of the Center for Excellence in Higher Education Law and Policy, said that the proposed regulations would cause more disruption than the Department is willing to admit especially concerning the hearing system.

“[The proposals are] essentially a federal mandate to create college courts even in private schools, and that’s a very controversial, complex decision,” Lake said.

He said that the complexities that these hearings entail would discourage people from seeking formal recourse while increasing litigation which would force universities to respond more informally.

“I think the watchword for these regulations is 'disruption',” he said. “It’s going to cause significant change in existing models of dispute resolution for most people with some uncertain outcome, and it could potentially raise the stakes on the accountability in colleges in the legal system in a way that we could see increased litigation.”

Finally, the the proposed regulations would only hold schools liable for sexual misconduct if that misconduct is reported directly to a Title IX Coordinator or an employee with the ability to make corrective action, according to Monaco’s letter.

Monaco argued that a majority of Tufts community members have the responsibility to report sexual misconduct, citing statistics on the number of people who have taken training courses in the recent years.

The draft rules give schools the option as to whether they want to maintain the preponderance of evidence standard in cases of sexual misconduct — more likely than not — or raise it to a standard called “clear and convincing.”

Tufts will keep the preponderance of evidence standard, Jill Zellmer, the executive director of the Office of Equal Opportunity, said.

Zellmer added in an email that other procedures would have to be reviewed, such as the university’s adjudication process which would be affected by the hearings.

The Department of Education, when asked for comment, referred the Daily to the Nov. 16 press release.

In the release, DeVos said that existing procedures were unfair and that the draft rules sought to remedy this.

“By following proper legal procedures and receiving input on our proposed rule, we will ultimately have a final regulation that ensures that Title IX protects all students," she said.

The criticism of the the draft regulations has not been unanimous.

In a comment to the department filed yesterday, the Foundation For Individual Rights in Education commended the proposals.

“The proposed rules take the rights of both complainants and accused students seriously, and they make important strides toward ensuring that complaints of sexual misconduct will be neither ignored nor prejudged,” wrote the organization. “Though not perfect, the proposed regulations will go a long way towards restoring meaningful due process protections to campuses — to the ultimate benefit of both complainants and respondents alike."

Campus sexual assault and harassment guidelines have been a source of contention for some years now.

In the spring of 2011, the Obama administration issued what is know as a Dear Colleague letter to colleges nationwide advising them of their requirements under Title IX for procedures for dealing with sexual assault and harassment. In the fall of 2017, the Department of Education sent out another Dear Colleague letter, which rescinded the 2011 guidance and a 2014 clarification.

“The 2011 and 2014 guidance documents may have been well-intentioned, but those documents have led to the deprivation of rights for many students — both accused students denied fair process and victims denied an adequate resolution of their complaints,” the 2017 Dear Colleague letter read.

Students from Action Sexual Assault Prevention (ASAP), Peer-Health Collaborative and Green-Dot were consulted in the drafting of Monaco’s letter at a meeting on Jan. 17, according to Han Lee, ASAP’s co-head of education and outreach.

Lee, a junior, said that the final draft reflected many of the students’ edits and suggestions.

“Overall it’s good to see that Tufts is listening to students’ needs, and that they are including students in these types of letters, it’s really important in terms of moving forward,” she said.

Lee said the draft regulations had terrified her when they had first been reported as she believed they would counteract much of the work ASAP has done.

However, much about what the finalized rules will look like remains vague, as the department could make changes to the draft proposals in light of the comments or Congress could force the department to revisit the proposals, according to Lake.

Lake said that Monaco’s letter could have an impact on the fate of the proposals.

“It’s certainly not nothing. We all listen when college presidents speak, even if we don’t agree,” he said.

Murphy contended it would be possible to sue a university under Massachusetts’ state law for relaxing sexual harassment policies in line with DeVos’s federal regulations.

“If Tufts dares to discriminate in anyway, and then points to the DeVos regulations as giving them permission to discriminate, that’s a lawsuit, and I will file it myself,” she said.