Laura Groshong, LICSW, Director, Policy and Practice

[These are the comments made by CSWA on the Department of Education proposed rule which would substantially weaken Title IX protections for women subjected to sexual harassment on college campuses. ~LWG]

January 30, 2019

Comments Re: Proposed Rule regarding Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance

The Clinical Social Work Association strongly objects to this rule as currently proposed.

Although we applaud the Department’s effort to provide clear and transparent regulations for educational institutions, we have major concerns about the rollback of guidelines designed to support traumatized victims of sexual harassment and/or assault who might otherwise be  registering valid complaints.  

Standard of Evidence

A primary issue is that, while the proposed regulations allow either a “preponderance of evidence” standard or the much higher standard of “clear and convincing evidence” in determining whether or not harassment has occurred and is actionable, considerable leeway is given to the educational institution to decide which standard to apply.

“Clear and convincing evidence” has proven to be an almost impossible standard to meet in harassment cases, as it is closely tied to the prevailing assumption before Title IX was passed in 1972, of women being sexually available to men even without consent.  In fact, even after Title IX, most educational institutions and state laws held to the old standards; note that only 15 cases of sexual harassment were prosecuted by the Department of Education up to 2011, whereas between 2011 and today, there have been 150 (“DeVos Proposes Overhaul to Campus Sexual Misconduct”, Newsday , 11/16/18).

If there is a concern that men are being treated unfairly under the preponderance standard, then the Department might reasonably provide guidance as to how to apply the preponderance standard fairly. It should be noted that, according to a study conducted at the University of Massachusetts, 90% of all sexual harassment cases have been found to be true, with the complaints filed that are false ranging from 2-10% (Lisak, D., et.al., “False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases”, Violence Against Women, Sage Publications, 16(12):1318-34).

We also do not want to ignore the appalling fact that just last year Larry Nassar of Michigan State University, in affiliation with USA Gymnastics, was found guilty of having violated over 350 young girls and women over a period of years.

Investigations of a Formal Complaint

The Clinical Social Work Association represents the interests of the 250,000 Licensed Clinical Social Workers, the largest group of providers of health, mental health and social services across our nation.  Working in clinics, schools, hospitals, welfare agencies, non-profits, and private practices, LCSWs have extensive experience with individuals harmed by sexual harassment and/or assault, with highly emotional court cases involving complicated relationships, and with the excruciatingly painful trauma associated with sexual harassment, assault, and abuse.

In our review of Investigations, in Section 106.45(b)(3), we are deeply troubled by the proposed rule’s discussion of cross-examination as part of the investigation of a formal complaint.  That cross-examination might in some cases need to be a part of the hearing is understood, but not all.  The Department’s attempt to achieve balance by insisting on cross examination fails, on multiple levels, to take into account the needs to protect and support the victim. 

A significant body of information regarding the mental health and social needs of survivors has been developed in the past decade, and what seems to be lacking in the proposed rules is an effort to provide universities with a serious understanding of trauma and of what the victim might be experiencing as they determine how to develop their “fair” hearings.   Indeed, we would urge that the rules directly address the university role in creating or continuing a climate hostile to complainants/victims.

As written, the proposed rules present investigation as basically a she-said/he-said inquiry with required cross-examination - yet even “protections” such as the separate room for cross-examination have the potential of re-traumatizing the victim, causing an almost inevitable chilling effect on the very act of reporting.  As written, the rules introduce “supportive services” which might be provided to an individual involved in a case (counseling, etc.), but simply as options which may or may not be offered by the university, rather than recommendations as part of trauma-informed guidance. 

Conclusion

Finally, there is no doubt that our society needs to do more to educate men and women about the importance of consent in sexual interactions, and to listen to both sides.  But the aspects of this proposed rule that would return us to the days when women were rendered powerless after being victimized, and when powerful institutions could thrive while ignoring painful realities on their campuses, must be rejected.