January 30, 2019

NEW YORK — The American Civil Liberties Union today filed a public comment on the Department of Education’s proposed rule on Title IX. Louise Melling, ACLU deputy legal director, issued the following statement:

“The ACLU is equally committed to eradicating sexual harassment and assault on campus and ensuring a fair process in school disciplinary proceedings.

“While conventional wisdom often pits equal rights and due process against each other, there are important ways in which these interests are shared.  Both principles seek to ensure that no student — complainant or respondent — is unjustifiably deprived of access to an education.

“The ACLU condemns the proposed Title IX rule for dramatically reducing schools’ obligations to address sexual assault and harassment, and thus rolling back important civil rights protections. At the same time, the ACLU supports many of the increased procedural protections the rule provides for school disciplinary proceedings, including providing for cross-examination in the university setting and access to all evidence.”

In its comments, the ACLU critiques the proposed rule for:

  • Imposing an unduly narrow definition of sexual harassment, one narrower than that used for racial harassment
  • Allowing schools not to investigate complaints of incidents that they reasonably should have known about
  • Precluding schools from conducting investigations that would often be necessary to determine whether an incident constitutes sexual harassment
  • Relieving schools of the obligation to investigate most student-on-student harassment or assaults that occur off campus even where they have continuing effects on campus
  • Allowing schools to adopt unreasonable responses to complaints and holding them responsible only if their actions are “deliberately indifferent”
  • Allowing schools to apply a clear and convincing evidence standard of proof.

The ACLU supports many of the procedural protections set out in the proposed rule, sometimes with suggested modifications, including:

  • Requiring a live hearing and an opportunity for cross-examination in the university setting
  • Providing the opportunity to delay Title IX proceedings in the face of an imminent or ongoing criminal investigation or prosecution
  • Providing both parties the right of access to evidence from the investigation
  • Providing the right to written decisions carefully addressing the evidence.

The ACLU suggests several improvements to the procedures set out by the proposed rule, including recommendations that the Department of Education require that:

  • All live hearings should be presided over by a lawyer
  • The school should offer a lawyer to either party upon request
  • The representative for a  student in the hearing should not be someone who exercises academic or professional authority over the other party
  • Schools should be required to delay their hearings upon request if a student faces imminent criminal investigations or proceedings, while at the same time providing interim measures to the complainant during any delay
  • Schools should not provide parties with access to evidence that is irrelevant or privileged under the law.

The public comment is online here: https://www.aclu.org/letter/aclu-comments-title-ix-proposed-rule

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