Brandeis joined the Association of Independent Colleges and Universities in Massachusetts (AICUM) in submitting a public comment against the proposed changes in Title IX rules to the Department of Education. President Ron Liebowitz announced the decision, criticizing the overly prescriptive and “one size fits all” proposed model in an email to the Brandeis community on Thursday afternoon.
Title IX of the Education Amendments Act of 1972 endeavors to protect people from discrimination on the basis of sex in educational institutions that receive financial federal assistance.
“I am concerned that the overly prescriptive model proposed by the Department of Education will not best serve our students or our community,” Liebowitz wrote in the email, which emphasized the importance of allowing colleges and universities to create their own policies and procedures, “while ensuring equity, fairness, and respect for all.”
The email continued, “The Title IX regulations should allow universities discretion in determining the appropriate investigative models for resolving complaints and not attempt to impose a ‘one size fits all’ process on all schools.”
“Brandeis is firmly committed to ensuring that all members of our community can study and work in an environment free from sexual harassment and discrimination,” he continued. “I believe that these comments reflect that commitment.”
The email comes after the Brandeis Student Union considered releasing a public comment in their weekly meeting on Sunday, Jan. 20. Sagie Tvizer ’19 presented a draft resolution to make a public comment to the Union, which the Senate will vote on this Sunday. The last sentence of the resolution reads, “the Student Union affirms and believes survivors,” said Tvizer.
In an interview with The Brandeis Hoot, Tvizer emphasized that anyone can make a public comment and called for Brandeis students to write public comments in a Facebook post in the Brandeis MyDeis class groups.
The statement on behalf of the AICUM criticizes six proposed rule changes by the Department of Education.
The AICUM summarized the consequences of these rules, saying, “many aspects of the proposed regulations may undermine rather than advance Title IX’s very purpose—to provide legal protection against discrimination on the basis of sex.”
The statement criticized the proposed changes, saying, “the proposed regulations may make it more difficult to maintain the privacy of both complainants and respondents; make matters more time-consuming and expensive to resolve; and eliminate key aspects of the discretion that presently enables institutions to act in the best interests of all parties.”
One proposed rule would require live hearings where each party can cross examine the other party. The cross would be conducted by the party’s advisor of choice, or, if they do not have one, one will be appointed for them. Any witness or party must be willing to be cross examined, or, if they refuse, the decision-maker of the case is not allowed to rely on the statements of the witness or party.
The AICUM raised concerns that the cross examination requirement is too restrictive, too legalistic for educational institutions, may deter complaints and harm the goal of stopping harassment by intimidating witnesses and may exacerbate financial differences between those with hired lawyer advisors than those without hired advisors.
The AICUM document also spoke about possible recommendations to the proposed rule, such as not requiring a live hearing in every case, only requiring parties to undergo cross examination (if at all) and allowing for more
university discretion in handling complaints and hearings.
Another proposed rule states that if the conduct alleged by the complainant would not constitute sexual harassment under an earlier definition, the complaint must be dismissed. This defines sexual harassment as “severe, pervasive and objectively offensive” that denies a person equal access to the university or college, according to the AICUM statement.
The document raises concern over this rule, saying, “Requiring the dismissal of a complaint of harassment that is not severe and pervasive will generally discourage reporting of incidents, as students and employees will fear their grievances will be minimalized.” The AICUM recommends removing the required dismissal rule.
Another rule requires the university or college to use the “clear and convincing evidence standard,” a higher standard than the “preponderance of the evidence standard,” also used in harassment cases. A university or college can only use the “preponderance of the evidence standard” if the university uses the standard with other conduct code violations that carry the same maximum disciplinary sanction as sexual harassment.
The AICUM criticized this proposed rule, saying the Department of Education was essentially imposing their authority over disciplinary proceedings not involving sexual harassment and therefore out of the Department of Education’s jurisdiction. The AICUM also questioned the practicality of changing the standard of proof for proceedings.
Another rule would require a copy of the investigative report to be sent to the parties for their review. The AICUM expressed concern that this could reveal highly confidential information, which could then be published online.
The document raised concern with proposed rules which would require Title IX officers receiving complaints to file a formal complaint when they have “actual knowledge” of multiple people complaining against an individual, as well as provide written notice to known parties which includes the identities of the parties involved in the incident.
AICUM states that this exposes complainants who want to remain anonymous and could deter complainants from seeking assistance and support. The group noted that many universities receive more disclosures of inappropriate conduct than they receive formal complaints. The document also noted that “Requiring Title IX Coordinators to file complaints can create conflicts of interest or the appearance of bias.”
