The two-month period for comment on proposed changes to the federal Title IX rules ended on Jan. 31, and it may be awhile before the Education Department can sort through more than 100,000 responses, including one from Pitt Chancellor Patrick Gallagher.

Women’s advocacy groups, led by SurvJustice, which represents sexual assault survivors, have sued the Trump administration, arguing the interim Title IX guidelines that Education Secretary Betsy DeVos issued in 2017 violate the equal protection guarantee of the Fifth Amendment because the policy “disproportionately burdens women and girls.” They argue the policy change “was motivated by the baseless and discriminatory but longstanding stereotype that women and girls tend to lie about or exaggerate experiences of sexual assault and harassment,” according to a posting from Pitt’s Office of Community and Government Relations.

In 2017, Devos rescinded the Obama administration’s Title IX guidance, which had called for more-aggressive enforcement of the 1972 law mandating gender equity among colleges that accept federal money. Then in November 2018, the department issued new guidelines.

According to DeVos, the focus of the proposal is to ensure “that every student can learn in a safe and nurturing environment,” and give equal treatment to alleged victims and assailants. 

Some of the changes that have come under fire, according to the Chronicle of Higher Education and other sources, include:

• A person accused of sexual misconduct would be guaranteed the right to cross-examine the accuser.  The questioning would have to be done in a live hearing by a lawyer or other adviser, but the parties could be in separate rooms, using technology if needed. 

• Colleges’ responsibilities to investigate would be limited to cases that happen on campus or within an educational program or activity. 

• The new rules would define sexual harassment to include “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” The Obama administration defined harassment as “unwelcome conduct of a sexual nature.”

• Colleges would have the option of using a higher standard of proof. When deciding whether sexual misconduct occurred,

• Requires students to report sexual misconduct to "an official who has the authority to institute corrective measures" rather than a trusted peer like a residential adviser.

On Jan. 30, Gallagher joined many other officials from colleges around the country in submitting a response to the changes and calling for revisions to the Education Department’s approach.  Below are excerpts from that letter. See it in its entirety here.

“The University is — and will continue to be — steadfast in our commitment to providing a learning environment that is free from sexual misconduct, harassment and discrimination. We are equally committed to promoting fairness and equity. Consequently, we are submitting this comment out of concern that some of the proposed rules may impede us from sufficiently supporting these values. …

• We request that the Department revisit the imposition of a prescriptive quasi-judicial process for sexual harassment allegations, such as requiring hearings, cross-examination and evidentiary rulings. These proposed changes have the potential to dissuade all parties, including witnesses, from engaging in the Title IX process. …

• We request that the Department revisit its proposed language limiting the scope of Title IX protections based on the geographic location of an alleged incident. This language could lead community members to incorrectly believe that a school cannot address off-campus activities that impact its educational or employment environment, despite that institution’s capacity and — in some cases — duty to do so.

• We request that the Department reconsider its proposed narrowed definition of sexual harassment to allow, instead, for a definition consistent with institutions’ commitment and obligation to effectively prohibit discrimination in the educational and employment environment. We understand that the proposed regulation will not limit our ability to respond to all conduct currently included within the definition of sexual harassment, even if that conduct is excluded from the new definition. Nonetheless, we believe that the Department’s proposed definition of sexual harassment has the potential to sow confusion and reduce reporting out of concern that an allegation does not fall within this more restricted classification.

• We request that the Department consider supplementing the proposed rules to clarify the relationship between Title VII and Title IX. As currently written, these rules could be construed to create conflicting rights based solely on the status of the party within the University or the specific form of discrimination alleged.

With these requests, the University of Pittsburgh joins a growing chorus of institutions and organizations that are urging the Department to revisit and revise its proposed regulations to provide institutions with additional flexibility to address sexual harassment in their individual communities. We believe that if executed as currently proposed, the Department’s regulations have the potential to adversely affect the higher education landscape in direct, diverse and consequential ways.”