Janet Napolitano, secretary of homeland security from 2009 to 2013, is president of the University of California.
The Education Department, in issuing its proposed Title IX regulations, appears to believe our nation’s colleges and universities have gone too far in responding to allegations of sexual harassment and sexual violence.
The department is mistaken.
Twenty-seven years ago, I was part of the legal team that supported Anita Hill as she testified before members of a Senate panel, most of whom had never grappled with the concept of sexual harassment before. Today, we understand better how sexual harassment can devastate the educations, careers and lives of those subjected to it. In higher education, this awakening, in large part, is because of students who courageously and publicly shared their own experiences, drawing the attention of not only their college administrators but also the Education Department’s Office for Civil Rights — then under the Obama administration — and the nation at large. This, in turn, has led to critical improvements in how schools respond to complaints.
As a university president, I know all too well how crucial it is — and how complex it can be — to quickly and appropriately respond to sexual harassment and sexual violence. Since I came to lead the University of California in 2014, the UC system has dedicated significant time, tangible resources and its best thinking to develop processes that are fair to those accused and to those bringing complaints. Many other schools did the same, and as these processes continue to evolve on campuses and in the courts, we remain steadfast in our commitment to ensure fair and equitable outcomes for all parties. We have made important progress and, as a result, have seen a significant increase in reporting. This is important because it means people feel more confident about coming forward and are able to access the resources and recourse available to them.
The Education Department’s proposed rules threaten to reverse this hard-won progress by unraveling critical protections for individuals who are sexually harassed and undermining the very procedures designed to ensure fairness and justice. For example, these new rules would require that schools allow representatives of the accused — often lawyers — to cross-examine complainants at live hearings. This is an intimidating prospect, especially to students wrestling with the already difficult decision to come forward. This will discourage reporting, and it is unnecessary. While this requirement is supposedly intended to protect the accused, many universities, including UC, already permit the accused to question the complainant and witnesses through a neutral intermediary in a manner that does not cause further harm.
The Education Department would also narrow the definition of sexual harassment. The department currently recognizes that there is a spectrum of misconduct and requires schools to stop and remedy only behavior sufficiently serious to limit the target’s educational opportunities. This standard has worked well both for schools and for the Education Department through several administrations and does not need to be fixed. The new, narrower definition risks leaving serious conduct unaddressed — especially at schools that adopt a higher evidentiary standard, which the proposed rules also allow.
Additionally, the proposed rules would significantly diminish schools’ responsibilities to respond to complaints. Schools would be required to investigate only formal complaints that are made to someone with specific authority to institute corrective measures and that allege misconduct within a university program or activity. Worse, schools need only respond in a manner that is not “deliberately indifferent.” I believe our responsibilities as administrators and educators extend beyond these woefully minimal standards, and UC will not reduce protections for its own community members. I am concerned, however, about the safety and well-being of individuals at institutions that take a different approach.
These changes also would weaken the authority of the Office for Civil Rights, meaning the federal government would play little role in ensuring students received important Title IX protections. Schools look to the Education Department for leadership on critical issues affecting our nation’s students. Yet these proposed rules suggest that the Trump administration has deprioritized combating sexual harassment and sexual violence. Under the guise of providing due process, they represent yet another effort to erode important civil rights protections.
The problems of sexual harassment and sexual violence won’t go away until we work together to make them go away and change the culture of what is acceptable behavior. In the face of efforts to set this important work back, colleges and universities cannot waver in their commitment to do what is right. For too long, our culture has blamed and stigmatized survivors and allowed sexual misconduct without accountability. Together, we can build on progress we have already made to change that. We can, and we must.