Protecting Students From Sexual Violence and Harassment
Submitted to the Committee on Health, Education, Labor, and Pensions
By: End Rape on Camps and Know Your IX
January 9, 2017
Via electronic mail to Melanie_Rainer@help.senate.gov and Manuel_Contreras@help.senate.gov

Chairman Lamar Alexander
Committee on Health, Education,
Labor and Pensions
455 Dirksen Senate Office Building
Washington, DC 20510

Ranking Member Patty Murray
Committee on Health, Education,
Labor and Pensions
154 Russell Senate Office Building
Washington, DC 20510

Dear Chairman Alexander and Ranking Member Murray:
Sexual violence is a pervasive problem in schools and colleges across the country, denying too
many students the opportunity to learn and impeding their civil right to receive an education free
from discrimination under Title IX of the 1972 Education Amendments.1 We, the undersigned
organizations, work directly with victims of sexual harassment and violence in our nation’s
schools. We have seen firsthand that the safety and equity of our schools depend on the U.S.
Department of Education’s critical civil rights work. As you consider Ms. Betsy DeVos’
nomination for Secretary of Education, we urge you to evaluate her positions on, understanding
of, and plans to address sex discrimination and sexual harassment in schools. Safe and equitable
education depends upon a Secretary of Education who is firmly committed to upholding Title IX
and reducing gender violence.
Campus climate surveys and research from the Bureau of Justice Statistics reveal that one in five
college women have experienced sexual assault.2 These rates are often higher for people with
disabilities, LGBT youth, and women of color, who also face unique challenges in reporting.3
1 Title

IX of the Education Amendments of 1972, Pub. L. No 92-318 § 901(a), 86 Stat. 235, 373 (codified at 20
U.S.C. § 1681(a) (2012)). (“No person in the United States shall, on the basis of sex, be . . . subjected to
discrimination under any education program or activity receiving Federal financial assistance . . . .”).
2

See CHRISTOPHER P. KREBS ET AL., THE CAMPUS SEXUAL ASSAULT (CSA) STUDY: FINAL REPORT at 6-3 (2007),
https://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf; DAVID CANTOR ET AL., REPORT ON THE AAU CAMPUS
CLIMATE SURVEY ON SEXUAL ASSAULT AND SEXUAL MISCONDUCT 13-14 (2015), http://ow.ly/XOL15; see
generally B.S. FISHER, L.E. DAIGLE, & F.T. CULLEN, UNSAFE IN THE IVORY TOWER: THE SEXUAL VICTIMIZATION
OF COLLEGE WOMEN (2010).
3

See ERIKA HARRELL, BUREAU OF JUSTICE STATISTICS, CRIMES AGAINST PERSONS WITH DISABILITIES, 2009-2012
– STATISTICAL TABLES (2014), https://www.bjs.gov/content/pub/pdf/capd0912st.pdf; BLACK ET AL., CENTERS FOR
DISEASE CONTROL AND PREVENTION, THE NATIONAL INTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY
(NISVS): 2010 SUMMARY REPORT (2011), https://www.cdc.gov/violenceprevention/pdf/nisvs_report2010-a.pdf;
BLACK ET AL., CENTERS FOR DISEASE CONTROL AND PREVENTION, THE NATIONAL INTIMATE PARTNER AND
SEXUAL VIOLENCE SURVEY (NISVS): 2010 FINDINGS ON VICTIMIZATION BY SEXUAL ORIENTATION (2011), https://
www.cdc.gov/violenceprevention/pdf/nisvs_sofindings.pdf.

!1

 Pervasive gender violence jeopardizes young people’s ability to succeed in school. Victims go to
great lengths to avoid their perpetrators: skipping shared classes,4 avoiding libraries or dining
halls, or withdrawing from campus life. Others struggle with post-traumatic stress disorder
(PTSD), depression, eating disorders or anxiety.5 These effects are magnified when a perpetrator
remains on campus with a survivor, and are further exacerbated when schools ignore their legal
responsibility to protect students.6 Without support and accommodations, many survivors see
their grades drop as they struggle to participate in, or even attend, their classes;7 others are forced
to leave school temporarily, transfer, or drop out entirely. As a result, survivors are forced to take
out additional student loans—often for hundreds of thousands of dollars8—to pay for services
their schools should have provided or for lost tuition.
For many student survivors, gender-based violence impedes, or even outright precludes, their
continued access to education. These are harms to which schools are uniquely positioned—and
required by law—to respond. While the purpose of the criminal system is to incarcerate
perpetrators, schools’ Title IX processes serve to directly provide survivors with the support they
need to stay in school, by providing free counseling services, an extension on a paper, or moving
a survivor out of a class shared with a rapist.
As victims advocates and young people whose educations have been imperiled by gender
violence in school, we know just how critical the Department’s Office for Civil Rights’ (OCR)
work has proven for students. OCR has helped ensure that schools live up to their legal
responsibilities to prevent sexual harassment and violence on campus and promptly and
equitably address it when it occurs.
No student should be denied the opportunity to succeed in the classroom by sexual harassment or
assault. We strongly urge you to prioritize OCR’s work in protecting that opportunity to learn and
to make sure the next Secretary commits to upholding the following principles:

4

See Rebecca Marie Loya, Economic Consequences of Sexual Violence for Survivors: Implications for Social
Policy and Social Change 96 (June 2012) (unpublished Ph.D. dissertation, Brandeis University) (on file with Know
Your IX).
5

See THE WHITE HOUSE COUNCIL ON WOMEN AND GIRLS, RAPE AND SEXUAL ASSAULT: A RENEWED CALL TO
ACTION 2 (2014), https://www.whitehouse.gov/sites/default/files/docs/sexual_assault_report_1-21-14.pdf.
6

See Carly Parnitzke Smith and Jennifer J. Freyd, Institutional Betrayal, 69 AM. PSYCHOL. 575, 587-582 (2014).

7See

Cari Simon, On Top of Everything Else, Sexual Assault Hurts the Survivors’ Grades, WASH. POST: POST
EVERYTHING (Aug. 6, 2014), https://www.washingtonpost.com/posteverything/wp/2014/08/06/after-a-sexualassault-survivors-gpas -plummet-this-is-a-bigger-problem-than-you-think.
8

See Laura Hilgers, What One Rape Cost Our Family, N.Y. TIMES (Jun. 24, 2016), http://www.nytimes.com/
2016/06/24/opinion/what-one-rape-cost-our-family.html?_r=0.

!2

 I.

Maintaining the Department’s 2011 and 2014 Guidance Documents Clarifying Schools’
Legal Responsibilities to Prevent and Address Sexual Harassment Under Title IX

Courts have long recognized that sexual violence and other forms of sexual harassment threaten
students’ ability to learn and that, accordingly, schools receiving federal funding are required
under Title IX to prevent harassment and remedy its effects.9 To assist schools in fulfilling these
longstanding legal obligations, OCR issued its 2011 Dear Colleague Letter on Sexual Violence
(DCL)10 and accompanying 2014 Questions and Answers on Title IX and Sexual Violence,11
helpfully clarifying schools’ responsibilities under Title IX, including their obligation to:
● Provide survivors the accommodations they need—at no cost—in order to access
education after suffering gender violence;
● Designate Title IX coordinators who do not have job responsibilities that might create a
conflict of interest;
● Provide a fair and equitable process for complainants and respondents in school
grievance procedures (e.g., if a school affords the respondent the right to present
witnesses, review evidence, or access counsel, the complainant must have the same
rights, and vice versa);
● Prevent, respond to, and address the effects of sexual harassment within all of the
recipient’s educational programs and activities.
The 2011 DCL further clarified for schools that a single instance of rape is such a severe act of
gender-based harassment that it creates a hostile environment that impedes a survivor’s civil
right to equal educational access, and to which schools must promptly respond.12 This principle
was affirmed by courts more than a decade before the 2011 DCL was issued and has consistently
been reaffirmed in case law.13 Yet before OCR’s guidance was issued, many schools ignored their
obligations under the law, both because colleges and universities failed to understand them, and
because schools knew few students understood the law well enough to assert their rights.
While the Department’s 2011 Dear Colleague Letter provided schools with a valuable framework
for fulfilling their legal obligations, the 2011 DCL did not “create” these obligations, as some
9

See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 292 (1998).

10

See Office for Civil Rights, Dear Colleague Letter from Assistant Secretary for Civil Rights Russlyn Ali, U.S.
DEP’T EDUC. 1-3 (Apr. 4, 2011), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf [hereinafter
DCL 2011].
11

See Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence, U.S. DEP’T OF EDUC. (2014),
https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf [hereinafter FAQ 2014].
12

See DCL 2011, supra note 10, at 9.

13

See, e.g., Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 259 n.4 (6th Cir. 2000) (“‘[w]ithin the context of
Title IX, a student’s claim of hostile environment can arise from a single incident’” (quoting Doe v. Sch. Admin.
Dist. No. 19, 66 F. Supp. 2d 57, 62 (D. Me. 1999))); Soper v. Hoben, 195 F.3d 845, 855 (6th Cir. 1999) (explaining
that rape and sexual abuse “obviously qualif[y] as…severe, pervasive, and objectively offensive sexual
harassment”).

!3

 critics have misleadingly claimed. Schools’ obligations stem from federal statutes, including
Title IX and the Clery Act, as interpreted by courts for decades.14 The 2011 DCL and 2014 FAQ
helpfully clarified existing requirements, ensuring that schools have the tools to comply with the
law—and that students have the information to vindicate their rights. Altering guidance would do
little to change schools’ underlying obligations. Instead, it would create needless confusion for
schools, which rely on the guidance to understand their responsibilities under Title IX; would
undermine public understanding of the law; and would obscure the rights of student survivors
seeking to understand what protections the law affords them when they face violence in school.
II. Continuing to Recognize Preponderance of Evidence As the Appropriate Standard of
Proof in Campus Sexual Harassment Investigations
Title IX requires that schools use a preponderance of the evidence standard of proof in sexual
harassment cases (i.e., it is “more likely than not” that the respondent committed sexual
harassment or violence).15
While the Department explicitly clarified that preponderance was the appropriate standard for
Title IX procedures in 2011,16 courts have long affirmed that it is the appropriate standard for
adjudication of violations for civil rights laws, including Title IX,17 Title VI of the Civil Rights
Act, and Title VII of the Civil Rights Act of 1964.18 As the Supreme Court recognized in Cannon
v. University of Chicago, the drafters of Title IX modeled the statute after Title VI and “explicitly
assumed that [Title IX] would be interpreted and applied as Title VI had been.”19 As claims of
discrimination and racially-motivated harassment under Title VI are adjudicated using the
14

Recipient obligations articulated by the DCL—providing accommodations, appointing Title IX coordinators,
creating fair and equitable procedures, and responding to harassment within all of its educational programs —are
derived from the Title IX statute, regulations, and case law. Recipients may be required to take remedial or
affirmative action to overcome the effects of discrimination, which can include providing accommodations. See 34
CFR §106.3 (1997); Gebser, 524 U.S. at 288. Recipients are also required to “designate at least one employee to
coordinate its efforts to comply with and carry out its responsibilities under [Title IX]” and to “adopt and publish
grievance procedures providing for prompt and equitable resolution of student and employee complaints [under Title
IX].” 34 CFR § 106.8 (1997). In addition, following the Supreme Court’s decision in Grove City v. Bell, 465 U.S.
555 (1984) which limited the scope of Title IX’s coverage at the time, Congress clarified that Title IX covers all of a
recipient's educational programs and activities. See 20 U.S.C. §1687.
15

See DCL 2011, supra note 10, at 10.

16

Id.

17

See e.g., Williams ex. rel. Hart v. Paint Valley Local Sch. Dist., 400 F.3d 360, 363 (6th Cir. 2005) (stating school
district “may be liable for the sexual abuse of a student if the [p]laintiff demonstrates by a preponderance of the
evidence each of the [necessary] elements”).
18

See Bazemore v. Friday, 478 U.S. 385, 400-01 (1986) (noting that “a plaintiff in a Title VII suit need not prove
discrimination with scientific certainty; rather, his or her burden is to prove discrimination by a preponderance of the
evidence. . . . [A]s long as the court may fairly conclude, in light of all the evidence, that it is more likely than not
that impermissible discrimination exists, the plaintiff is entitled to prevail”); NANCY CHI CANTALUPO ET AL., TITLE
IX AND PREPONDERANCE OF THE EVIDENCE: A WHITE PAPER 4 (2016), http://www.feministlawprofessors.com/wpcontent/uploads/2016/08/Title-IX-Preponderance-White-Paper-signed-10.3.16.pdf.
19

Cannon v. Univ. of Chicago, 441 U.S. 677, 696 (1979).

!4

 preponderance standard, so too are claims of discrimination and sexual harassment (including
sexual violence) made under Title IX. Beyond civil rights litigation, preponderance of the
evidence is the standard employed in most civil actions. If the Department indicated its tolerance
for other standards of proof, it would create a system where victims of gender-based harassment
face uniquely high barriers while victims of harassment on the basis of all other protected
characteristic do not. Such a system would be grossly inconsistent with case law as well as Title
IX’s purpose of eliminating discrimination on the basis of sex.
III. Maintaining Transparency in Title IX Enforcement
In 2014, the Department began regularly publishing a list of higher education institutions under
federal investigation for mishandling gender violence complaints,20 to the great relief of
prospective students and their families.
The Department built on this progress in 2016 by publicly releasing a list of schools that had
requested and received religious exemptions, exempting them from legal requirements not to
discriminate against students on the basis of pregnancy, reproductive health decisions, sexual
orientation, or gender identity.21 When a school receives a religious exemption, it can punish,
refuse to admit, or even expel pregnant students or students who identify as LGBT. Without
public disclosure of the names of schools that are seeking or have received Title IX exemptions,
pregnant or LGBT students may unknowingly enroll in schools where discrimination against
them is permitted.
Today, more than 297 institutions of higher education are under investigation for violating Title
IX,22 and more than 245 schools have received religious exemptions from Title IX’s
nondiscrimination mandate.23 By publicly releasing lists of these schools, the Department brings
transparency to its enforcement actions, helps thousands of prospective students and parents
make informed decisions about enrollment, and enables campus communities to take action
against hostile environments in their school communities. These commonsense measures are
vital resources for the public, and we urge the nominee to commit to sustaining them.

20See

U.S. Department of Education Releases List of Higher Education Institutions with Open Title IX Sexual
Violence Investigations, U.S. DEP’T OF EDUC. (May 1, 2014),
https://www.ed.gov/news/press-releases/us-department-education-releases-list-higher-education-institutions-opentitle-i.
21

See Scott Jaschik, Education Dept. Releases Title IX Exemptions, Requests, INSIDE HIGHER ED (May 2, 2016),
https://www.insidehighered.com/quicktakes/2016/05/02/education-dept-releases-title-ix-exemptions-requests.
22See

Title IX: Tracking Sexual Assault Investigations, THE CHRONICLE OF HIGHER EDUCATION, http://
projects.chronicle.com/titleix/ (last visited Jan. 6, 2017).
23See

Institutions Currently Holding Religious Exemption, U.S. DEP’T OF EDUC., https://www2.ed.gov/about/
offices/list/ocr/docs/t9-rel-exempt/rel-exempt-approved-and-pending.xlsx (last updated Sept. 15, 2016).

!5

 IV. Maintaining the Department’s 2016 Dear Colleague Letter on Transgender Students
Transgender and gender non-conforming students experience alarmingly high rates of
harassment, bullying, and violence. In 2016, the Department issued its Dear Colleague Letter on
Transgender Students to guide schools in responding to this urgent problem. The Department’s
guidance comes at a time when discrimination is costing too many transgender students their
education: almost one in five K-12 students who are perceived as transgender have left a school
as a result of severe mistreatment.24 Both the Department of Education and the Department of
Justice have recognized that gender identity discrimination does not have to be “sexual” in nature
to constitute sex discrimination, and that harassing a student for not conforming to the sex they
were assigned at birth is “unquestionably” discrimination on the basis of sex.25
The Fourth Circuit Court of Appeals afforded Auer deference to the Department of Education’s
interpretation of Title IX26 and vacated a lower court’s denial of a preliminary injunction that
would have ordered a school board to allow a transgender student to use the restroom facility
consistent with his gender identity.27 Furthermore, for more than 15 years, courts across the
country, including federal appeals courts for the First, Sixth, Ninth, and Eleventh Circuits have
held that federal laws prohibiting sex discrimination protect transgender people from
discrimination on the basis of gender identity.28

As organizations that serve survivors of gender-based violence, we reject the myth that
addressing discrimination against transgender students, such as by allowing transgender students
to use single-sex facilities consistent with their gender, would cause sexual assault or harassment.
On the contrary, half of Americans today live under state and local laws protecting transgender
people from discrimination in public places, with no evidence of any public safety threat.
Meanwhile, students who are transgender or gender non-conforming are significantly more likely
to experience sexual assault than those who are not.

24

See NATIONAL CENTER FOR TRANSGENDER EQUALITY, 2015 U.S. TRANSGENDER SURVEY: EXECUTIVE SUMMARY
9 (2016), http://www.transequality.org/sites/default/files/docs/USTS-Executive-Summary-FINAL.PDF.
25

See Brief for the United States as Amicus Curiae Supporting Plaintiff-Appellant and Urging Reversal at 10, G.G.
v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016) (No. 15-2056).
26

See G. G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709, 723 (4th Cir. 2016).

27

Id. at 715. The lower court subsequently granted plaintiff’s request for a preliminary injunction. See
G.G. v. Gloucester County School Board, 2016 WL 3581852 (E.D. Va. 2016). The Supreme Court has granted a
petition for writ of certiorari on this question. See G. G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016),
cert. granted in part, 196 L. Ed. 2d 283 (Oct. 28, 2016).
28

See Chase Strangio, There is Only a Title IX Crisis if You Believe the Existence of Trans People Is up for Debate,
SLATE (May 27, 2016), http://www.slate.com/blogs/outward/2016/05/27/
jeannie_suk_s_newyorker_com_article_was_sloppy_and_inaccurate.html (stating that courts spanning from Maine
to California, including the federal courts of appeals for the 1st, 6th, 9th, and 11th circuits have specifically held that
federal laws prohibiting sex discrimination also include sex discrimination against transgender people).

!6

 The Department’s 2016 DCL builds upon this foundation of support for transgender students,
and is imperative to ensuring their educational access.
______________________________________________________________________________
As advocates for students whose education has been disrupted by sexual harassment and
violence, we know the critical role that the Education Department, the 2011 DCL, 2014 FAQ on
Title IX and Sexual Violence, and 2016 DCL on Transgender Students have played in promoting
Title IX compliance, gender equity, and safe schools. Understanding the importance of the
Department’s key role in enforcing Title IX is an essential qualification for anyone who would
lead it.
We urge you to assess Ms. DeVos’ knowledge of and positions on Title IX and related guidance
documents issued by the Department. Anything less than a firm commitment to maintaining the
Department’s Title IX guidance, enforcement work, and transparency procedures should be
considered with utmost concern.
Thank you for your consideration and your commitment to building a future where students can
learn and thrive free from violence.
Sincerely,
End Rape on Campus
Know Your IX
Advocates for Youth
American Association of University Women (AAUW)
Arizona Coalition to End Sexual and Domestic Violence
Arte Sana and ALAS (the national Latinx alliance against sexual violence)
Connecticut Alliance to End Sexual Violence
Colorado Coalition Against Sexual Assault
Iowa Coalition Against Sexual assault
Jane Doe Inc (Massachusetts coalition)
Maryland Coalition Against Sexual Assault
Minnesota Coalition Against Sexual Assault
National Women's Law Center
National Alliance to End Sexual Violence
New York State Coalition Against Sexual Assault
North Carolina Coalition Against Sexual assault
Ohio Alliance Against Sexual Violence
Victim Rights Law Center
West Virginia Foundation for Rape Information Services

!7