To Sylvia Burwell, Vice President Fanta Aw, Director of Student Conduct Katie Porras and Interim Title IX Program Officer Stephen Vaughan,

On May 6th, the Department of Education issued its Final Rule changing the Title IX obligations of all schools receiving federal funding. Consistent with the harmful rhetoric and anti-survivor ideology Secretary DeVos has brought to the Department, the Rule contains dangerous provisions that go against best practices, tip the scales against survivors, and jeopardize tens of thousands of students’ civil right to an education free from discrimination. 

This rule will have devastating consequences for students and their families. Specifically, the rule will require schools to only investigate the most extreme forms of harassment and assault, require schools to ignore most violence that occurs off-campus, require live hearings and direct cross-examination of complainants and respondents by each of their chosen representatives, and allow needless delays in the completion of Title IX investigations. Altogether, these changes will discourage survivors from coming forward and utilizing the Title IX process at their schools, resulting in rampant sexual violence going unaddressed. 

We, as students, alumni, and community members, are calling on American University to uphold the civil rights of all students on all three of our campuses. Multiple sections within the rule give schools discretion to choose how policies are implemented. We urge American University to commit to taking sexual violence seriously by choosing the options that would create the least harm for student survivors. 

Below, we have listed our call to the University, which asks for your clear commitment to maintaining the safest and fairest policies that are legal under the Final Rule. 

We, students and alumni of American University, call on the University to commit to: 

1. Establishing the preponderance of the evidence as the standard of evidence in all campus sexual misconduct, harassment, and discrimination cases. The preponderance of the evidence is the only standard that values the education of both complainants and respondents equally.*

2. Establishing a time limit of sixty calendar days for the completion of sexual misconduct, harassment, and discrimination cases, with exceptions only for substantial extenuating circumstances. Lengthy investigations are emotionally taxing on survivors, often causing students to drop-out before their cases are complete. Drawn-out timelines are bad for complainants and respondents alike, leaving them uncertain of where things stand with their schools.

3. Continuing to respond promptly to reports of and carrying out existing investigations into sexual misconduct during the global health crisis. The new rule makes clear that Title IX processes may continue remotely in the face of the COVID-19 pandemic. The rights of student complainants and respondents alike hinge on schools maintaining their commitment to prompt and equitable investigations even during these unprecedented times.

4. Guaranteeing all students access to reasonable interim measures regardless of where or when the violence or discrimination they experienced took place. The serious effects of violence and discrimination merit accommodations whether a student was harmed on-campus, on a study-abroad trip, or in their private apartment.

5. Creating and following sexual misconduct procedures for investigating otherwise not covered instances of off-campus and study abroad violence. While the rule does not allow formal Title IX investigations of off-campus violence, schools can still create separate sexual misconduct policies that ensure students can report off-campus violence. Whether you are raped in your on-campus dorm room or another country, having to see your rapist in class equally interrupts your education.

6. Barring the use of informal resolution mechanisms including but not limited to mediation in cases of sexual assault, rape**, dating, and domestic violence, and stalking that is an extension of such violence. It is widely agreed upon that mediation is an inappropriate and even unsafe measure in these types of situations.

7. Following the Department of Education’s rescinded 2016 guidance on protecting LGBTQ+ students in order to ensure all students have equal access to a safe learning environment, regardless of gender identity or sexual orientation. 

We call on the University to issue a written public statement declaring its commitment to these seven policies by June 1, 2020. 

As dedicated members of this community, we believe in holding our institution to the highest standards. With a federal government that is failing students, it is up to institutions to assume leadership in defending our education by protecting our civil rights. We look forward to seeing American University issue its public statement in the coming days. 

With power,

The Undersigned

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*It is extremely disappointing that by mandating that schools adopt one standard of evidence for all campus cases, the Department of Education has placed us in opposition to our labor allies, many of whom have worked hard to secure a clear and convincing standard of evidence prior to dismissal under bargaining agreements. We are hopeful that the Department’s rule can be struck down so that we are not forced to oppose the interest of unions in such a way. 

**Barring mediation is in line with the 2001 Title IX Guidance released by the Department of Education under the Bush administration and upheld by the Department under the Obama administration.

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What will happen if no action is taken:

Schools must dismiss any complaints of sexual misconduct that occur outside of campus-controlled buildings and/or educational activities. This means that sexual violence, including sexual assaults, harassment, intimate partner violence, and stalking that happen during study abroad or in off-campus housing are not covered under Title IX. With a large number of students living off-campus and rates of assault an estimated five times higher in study abroad programs, this change makes no sense. 

Colleges must allow live cross-examination by the ‘representative’ of each party’s choosing. This means survivors can be cross-examined by their rapists’ parents, friends, fraternity brothers, or sorority sisters. This greatly increases the risk of re-traumatization. 

The new rule allows schools to drag students through lengthy and burdensome investigations without reason. The final rule removes the previous 60-day requirement for investigations without providing an alternative. Prior to previous guidance—and Education Department oversight—schools frequently drew investigations out for months or even a full year. Schools forced survivors to undergo an unnecessarily lengthy, traumatic process that often led to survivors dropping out of an investigation, or out of school entirely. Neither survivors nor respondents deserve to have an unnecessarily long investigation disrupt their education.

The definition of sexual harassment is narrowed to include only instances that are severe, pervasive, and objectively offensive. By raising the bar this high, the rule is functionally preventing survivors from accessing justice and telling countless survivors that their experiences are not valid.

Unregulated mediation is allowed in cases of sexual assault, rape, dating violence, and domestic violence. Informal resolutions are allowed voluntarily by both parties, a process that was not permitted under previous guidance. The lack of accountability in mediation will worsen the already imbalanced power dynamic between survivors and perpetrators. Career mediators agree that mediation should not be used in instances of gender-based violence as it has the potential to further traumatize survivors.

Religiously-affiliated institutions can claim a Title IX exemption even after they are charged with discrimination. Religious schools have no obligation to inform their students whether they are still adhering to Title IX and can be exempt without submitting a waiver to the Department of Education. This means that students at religious schools are being stripped of their rights without any notice of it. 

This policy greatly reduces a school’s obligation to act against sexual harassment. Schools are shielded from liability provided they are not shown to be ‘deliberately indifferent’. Raising the liability standard for schools that ignore sexual violence removes accountability, allowing schools to claim they weren’t aware of the violence occurring.

You can only file a complaint against someone who attends your university.  This means that if you are assaulted at the school across the street, you have no right to open a Title IX complaint against that person on your campus. This will force students to turn to law enforcement or additional legal routes to ensure that their perpetrator will be held accountable and will cause no further harm.

Know Your IX and activists around the country have already won key victories by flooding the Department of Education with comments.  The removal of attacks on the Preponderance of Evidence standard and inclusion of supportive measures even for students whose cases don’t fit updated definitions of harassment is evidence that our organizing works.