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Harvard, in conjunction with a coalition of universities across Massachusetts and the country, slammed United States Secretary of Education Betsy D. DeVos’s proposed changes to Title IX rules in comments published last week.
The schools’ feedback came as part of their official response to DeVos’s proposed changes to Title IX, a federal law that underpins Harvard’s policies on gender and sex-based discrimination. In particular, they focused on changes that would require live cross-examinations in sexual harassment investigation proceedings.
DeVos released the initial rules in November 2018, opening them up to a 60-day comment period that will end Jan. 30. The rules have faced criticism since an earlier version was leaked in August 2018. So far, the Department has received more than 70,000 comments on the new rules.
On Jan. 23, the Association of Independent Colleges and Universities in Massachusetts — a group of 60 higher education institutions in the Commonwealth including Harvard — sent comments to the government arguing the new rules “may undermine rather than advance Title IX’s very purpose.”
The association opposed the cross-examination change, arguing it might deter victims of sexual misconduct from coming forward. Live hearings with cross-examination in Title IX proceedings were strongly discouraged under Obama-era enforcement rules, but DeVos’s changes require the practice, allowing for opposing parties to be in separate rooms during the hearings with a neutral mediator if they wish.
“This restrictive mandate is inappropriate for many institutions and the underlying requirements may deter complainants from reporting discrimination and harassment and undermine Title IX’s objective,” AICUM wrote in its comments.
Eight pages of AICUM’s 17-page commentary focused on the cross-examinations.
The coalition argued the new hearing mandate would make it difficult for volunteer advisors to support individuals involved in complaints, exacerbating inequities between complainants and respondents who can afford outside counsel for the hearings and those who rely on University-provided resources.
“Where one party with economic means retains a skilled lawyer as an advisor, the other party who cannot afford such representation, whether complainant or respondent, will be at a distinct disadvantage,” AICUM wrote.
AICUM also argued that several aspects of the new rules threaten students’ confidentiality. If adopted in their curent form, the rules would make all evidence available to both parties and eliminate restrictions on all parties’ rights to speak about allegations. They would also require Title IX coordinators to file formal complaints any time there are multiple complaints against one individual, regardless of whether alleged victims want to pursue formal investigation.
The Association of American Universities — of which Harvard is also a member — published its own critique of the new rules Jan. 24.
The AAU also took issue with the mandated live hearings — which it called “quasi-courts” — and argued the new rules encroach on universities' ability to handle Title IX investigations under their own discretion.
The change represents an “unprecedented infringement on universities’ autonomy and expertise,” the AAU wrote.
University President Lawrence S. Bacow wrote in a Dec. 6 statement that he “will not rest until Harvard has done all that it can to prevent sexual and gender-based harassment and assault.”
Rather than offer a concrete response to the guidance himself, however, Bacow said in an interview that Harvard would send its official views through university coalitions, rather than on its own.
Our Harvard Can Do Better, a campus anti-sexual assault advocacy organization, circulated and delivered an open letter that denounced the DeVos rules when they were initially released.
Rebecca N. Thrope ’22, an organizer in Our Harvard Can Do Better, said the group has been working with other student organizations on campus to submit comments to the Department, but was pleased with the University’s response.
“We are very impressed with and thankful for the leadership that Harvard has taken on the issues of sexual assault and gender-based harassment,” Thrope said.
—Staff writer Iris M. Lewis can be reached at firstname.lastname@example.org.
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