Comments to the U.S. Department of Education on proposed Title IX rule

Note: Below is a letter from Chancellor Blank to the U.S. Department of Education regarding a proposed rule that would affect how universities respond to allegations of sexual harassment and sexual assault. The deadline for submitting public comments is 11:59 p.m. Wednesday, Jan. 30. Learn more

Jan. 28, 2019

Brittany Bull
U.S. Department of Education
400 Maryland Avenue SW Room 6E310
Washington, DC 20202


RE: Docket ID ED-2018-OCR-0064

 University of Wisconsin–Madison’s Comments Regarding the U.S. Department of Education’s Proposed Rule on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance


Dear Ms. Bull,

I write on behalf of the University of Wisconsin–Madison to provide feedback on the U.S. Department of Education’s (ED’s) proposed rule relating to Title IX. You have also received comments from the University of Wisconsin System, of which UW–Madison is a part.  These comments are intended to reinforce that broader feedback and provide information that is specific to our campus.

I want to begin by stating unequivocally that every student has the right to be safe on campus. Sexual violence and misconduct is absolutely unacceptable and can have a devastating impact on students who experience it, both personally and in terms of their ability to complete their education.

It’s important to also consider what the data tell us about sexual assault and how it impacts our campus. In 2015, UW–Madison participated in a first-of-its-kind national survey administered to students at 27 colleges and universities by the Association of American Universities (AAU). It found that more than one in four undergraduate women (27.6 percent) at UW–Madison reported experiencing sexual assault or misconduct (defined as nonconsensual sexual penetration or touching). This is consistent with national results. Perpetrators were overwhelmingly identified as fellow students, often a friend or acquaintance, and assaults most commonly occurred in student residences, such as on-campus residence halls and off-campus private apartments. The vast majority of these incidents are not reported to police or campus authorities – many students reported a lack of confidence that an investigation would be fair or result in action against the offender.

A serious approach to reducing violence, therefore, must be one that students trust and that protects the rights of both parties in a complaint. All of us at UW–Madison are dedicated to preventing sexual assault and, when allegations occur, to investigating fairly and impartially while respecting the due process rights of respondents. As mentioned in the UW System feedback, parts of the proposed rule will be helpful in this endeavor. However, other parts need improvement to achieve our shared goals of protecting student safety and providing equitable policies and procedures.

I will focus on five areas in particular:

The role of campus disciplinary proceedings: Our non-academic misconduct proceedings are not criminal trials and they do not result in criminal sanctions. The final rule should clearly reflect this distinction between an administrative student conduct process and criminal procedure.

Standard of proof: We appreciate ED’s acknowledgment that both the “preponderance of the evidence” standard and “clear and convincing” standard comport with due process. However, universities need the flexibility to choose between a “preponderance of the evidence” and “clear and convincing evidence” standard in Title IX cases without tethering that standard to other types of misconduct cases. Currently, the burden of proof for UW System proceedings varies between “clear and convincing” and “preponderance” depending upon the type of conduct at issue and the severity of the sanction imposed. We support continuing this approach.

Off campus conduct: About 80 percent of our students live off campus. Each year, more than 2,000 students study abroad – one of the highest rates of study abroad participation in the country. UW System’s student non-academic misconduct code applies to student conduct outside of an institutional program or activity if the behavior implicates an institutional interest or creates a health and safety risk for the student or others. This includes sexual harassment and sexual violence that occurs off campus, including during study abroad programs.

The proposed rule requires colleges and universities to dismiss Title IX complainants for conduct that occurs outside of the university’s programs and activities and outside the U.S. Yet the proposed rule also appears to permit colleges and universities to utilize their typical employee and student disciplinary procedures to address such conduct, which would create a confusing bifurcated process. The proposed rule should be changed to allow institutions to apply their code of conduct as deemed appropriate and use the same procedures for all misconduct that affects the health and safety of its community.

 Informal Resolutions: Alternative methods for addressing complaints of sexual misconduct outside of formal investigations are very effective in allowing the university to engage in proactive and preventative measures without jeopardizing the due process rights of individuals. Often this is done at the complainant’s request. One common method is to have a conversation with the respondent aimed at educating that individual about behavioral expectations and university policy. This allows concerns to be addressed when a complainant does not wish to be identified due to fear of retaliation or simply wants the misconduct to stop. These informal resolutions do not include any fact finding and do not have any punitive impact on the respondents. The proposed rule should be amended to make clear that this practice can continue without any additional requirements.

Cross-examination: Our student disciplinary procedures provide the opportunity for a live hearing, which includes the opportunity for respondents and complainants to cross-examine individuals who testify at the hearing. We do not, however, have the legal authority to compel complainants or witnesses to appear at disciplinary proceedings. Sometimes complainants and witnesses agree to testify at the hearing, but if they do not, the investigative report is used by the committee to make decisions. Requiring complainants and witnesses to testify at a live hearing would likely reduce the number of individuals who request formal investigations, as complainants may be reluctant to subject themselves or their friends to cross examination. Alternatively, complainants and witnesses for either party may choose to participate during the investigative process but decline to participate in the subsequent live hearing, leaving the university unable to present that evidence. This would limit UW–Madison’s ability to address sexual harassment and sexual assault. The requirement should be removed.

In closing, I want to thank ED for using the rulemaking process to address these important issues. Doing so provides the opportunity for public comment and input, which ultimately will result in better public policy. I appreciate your consideration of these comments.

Rebecca M. Blank,

Chancellor, University of Wisconsin – Madison