Sanctuary’s Comments on the Proposed Title IX Rule

The Proposed Rule makes survivors of sexual misconduct even more disadvantaged in seeking relief for the harm they have suffered than any other category of complainants in school disciplinary proceedings. Sanctuary urges the Department to withdraw the Proposed Rule in its entirety.

On November 16, 2018, Secretary of Education Betsy DeVos proposed several changes to Title IX regulations introduced under the Obama administration. The proposal has been open for public comment over a 60-day period that ends on January 30, 2019.

Sanctuary for Families appreciates this opportunity to submit comments to the Department of Education. We thank Gibson Dunn for drafting Sanctuary’s official comments on the notice of proposed rulemaking regarding sexual misconduct in educational programs. 

Background

During the past decade, rates of sexual violence have skyrocketed on college campuses across the country. More than one in five women undergraduates experience an attempted or completed sexual assault during college. The epidemic of sexual violence against women on campus led to widespread calls for more robust and fair procedures to govern how schools address complaints of sexual assault and sexual harassment on campus.  In 2011, the Department of Education issued guidance, known as the “Dear Colleague Letter,” that required schools to address sexual violence on campus and to implement procedures that would place the complainant and the accused on equal footing in Title IX proceedings.  The Dear Colleague Letter, which was implemented by colleges and universities across the country, was widely praised as striking the right balance between protecting the accused and facilitating the reporting and fair evaluation of complaints of sexual assault and sexual harassment on campus.

The Department rescinded the Dear Colleague Letter on September 22, 2017 and announced that it would engage in notice-and-comment rulemaking to draft new Title IX regulations.  On November 29, 2018, the Department issued the Proposed Rule[1], which sets forth an extensive set of restrictions and requirements for schools in responding to complaints of sexual misconduct. The Department says that the Proposed Rule is intended to “promote the purpose of Title IX” by requiring schools to address sexual misconduct and to ensure that investigations of sexual misconduct are “fair and impartial” and that “due process protections are in place for individuals accused of sexual harassment.”

Our Comments on the Proposed Rule

The Proposed Rule is nothing short of a wholesale effort to eviscerate Title IX as a mechanism to address sexual misconduct on campus. The Department’s arguments to the contrary are not credible.  The Proposed Rule singles out sexual misconduct—the one type of misconduct on campus that disproportionately impacts females students—and rigs Title IX proceedings in favor of the accused by creating barriers to reporting, limiting what sexual misconduct schools can address, and requiring schools to adopt procedures that put complainants at a significant disadvantage and all but guarantee that the accused prevail. The Proposed Rule would also conflict with and consequently preempt existing state laws that seek to do the opposite: require schools to address sexual misconduct on campus and protect survivors. In short, the Proposed Rule makes survivors of sexual misconduct even more disadvantaged in seeking relief for the harm they have suffered than any other category of complainants in school disciplinary proceedings.

First, the Proposed Rule represents a dramatic departure from prior guidance and existing civil rights laws by limiting the circumstances under which schools may address complaints of sexual misconduct.  Under the Proposed Rule, a school may only address sexual misconduct under Title IX if it meets a narrow definition of “sexual harassment,” occurs within defined geographic areas, and is reported to the correct school employee.  If all of these conditions are not met, then schools are allowed—and in many cases, required—to ignore the report, no matter how serious the sexual misconduct.  By narrowing the definition of “sexual harassment” and limiting the circumstances in which a school may respond to complaints of sexual misconduct pursuant to Title IX, the Proposed Rule enables perpetrators to engage in sexual assault and sexual harassment with impunity.

Second, for the narrow range of sexual misconduct that schools can address, the Proposed Rule mandates that schools implement procedures that favor the accused and that will discourage reporting of sexual misconduct on campus.  This is particularly troubling, given that sexual misconduct on campus is already widely under-reported.  The Proposed Rule requires survivors to satisfy a heightened evidentiary burden while providing significant advantages to the accused—most notably, a presumption of no misconduct, the ability to subject the complainant to cross-examination by an advisor of his choice, and more expansive appeal rights than those provided to the complainant.  Although the Proposed Rule states that such procedures are necessary to ensure that Title IX proceedings are “fair and impartial,” these procedures, in fact, only rig the proceedings in favor of the accused and subject survivors to re-traumatizing investigatory processes and heightened and unnecessary procedural hurdles.

Third, the Proposed Rule would preempt state laws that provide greater protections for survivors.  The Proposed Rule’s broad restrictions on the types of sexual misconduct complaints that schools may address and requirement that schools implement procedures that favor the accused would preempt state laws that currently mandate schools to address a wider range of sexual misconduct on campus and to implement procedures in disciplinary proceedings that place the complainant and accused on equal footing.  As a result, the Proposed Rule serves to not only prohibit schools from using Title IX to address many complaints of sexual misconduct but also guarantees that state laws protecting students from campus sexual violence cannot be enforced.

Taken together, these provisions, if enacted, will fundamentally impair the rights of survivors in favor of protecting the accused.  On its face, the Proposal seeks primarily to protect the reputation and interests of the accused—by shielding a broad range of sexual misconduct from the reach of Title IX, all but guaranteeing that the accused prevail in Title IX proceedings, and preempting state laws that provide protections to survivors.  What is clearly not of concern in the Proposal is the growing epidemic of sexual violence on campus.  The Proposed Rule also ignores the long-lasting, pernicious effects of sexual violence on student survivors:  survivors commonly struggle with depression, posttraumatic stress disorder, and anxiety attacks, and frequently face trauma-induced educational problems, such as declines in academic performance, loss of scholarship funds, delayed degree completion, and transferring schools.

The Proposed Rule—and its slavish protection of the interests of the accused—is premised on a myth that men on campus are the victims of a wave of false reports filed by women.  The data disproves this myth.  Studies of false reporting of sexual assault cases generally place the rate between 2% and 10%. The reality is that there is an epidemic of sexual violence on campus and incidents of sexual misconduct in schools are widely under-reported.  If enacted, the Proposed Rule would allow this very real epidemic to worsen, putting even more women on campus at risk of being sexually assaulted, and would undermine the abilities of schools to take effective action to address sexual violence on campus and hold perpetrators accountable. Sanctuary urges the Department to withdraw the Proposed Rule in its entirety.

 


   [1]   The Proposed Rule refers to “sexual harassment,” which it defines as “an employee of the [school] conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct; or 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 [school’s] education program or activity; or sexual assault.”  Because the Proposed Rule’s definition of “sexual harassment” also includes sexual assault, Sanctuary will use the term “sexual misconduct” in these comments to encompass both sexual harassment and sexual assault.

 

 

Our Statement: The “Remain in Mexico” Policy Leaves Survivors More Vulnerable to Violence

The rollout of this cruel policy is further endangering the lives of countless gender violence survivors, among others, who have fled violence in their countries of origin and is causing chaos within our overburdened and broken immigration system.

Lori Adams is the Director of the Immigration Intervention Project at Sanctuary for Families.

Sanctuary for Families urges Congress to intervene to stop the Trump Administration from implementing its “Remain in Mexico” policy. The rollout of this cruel policy is further endangering the lives of countless gender violence survivors, among others, who have fled violence in their countries of origin and is causing chaos within our dysfunctional immigration system.

According to the plan, which DHS began to implement on January 25th, most refugees who reach the U.S.-Mexico border seeking protection in the United States will be required to stay in Mexico while they wait for their first hearing in a U.S. immigration court. 

The Impact

Department of Homeland Security (DHS) Secretary Kirstjen M. Nielsen calls this a  “humanitarian approach” to address the crisis at the border, but there can be no doubt that the most vulnerable families will suffer under these new protocols. Refugees from Honduras, El Salvador, and Guatemala often face violence and persecution so severe that it leaves them with no choice but to embark on a treacherous journey through Mexico to the U.S. Many of them are women and children fleeing gender-based harm. By requiring these families who have already proven “credible fear” to remain in Mexico while they await their immigration court date, we are putting families at risk of further violence.

The stated policy includes an exception for Mexican nationals, unaccompanied children, and refugees who can demonstrate that they are more likely than not to face persecution or torture in Mexico. In practice, however, it will be nearly impossible for migrants who have only been in Mexico for a short time to articulate a greater-than-50% likelihood of persecution or torture, simply due to the fact that such a determination requires knowledge of conditions throughout the country.

Chaos in the Courts

According to DHS, the “Remain in Mexico” policy will be implemented first at the San Ysidro port of entry which connects Tijuana, Mexico to San Diego, CA. Rolling out this new policy at one of the busiest land border crossings in the world would be a logistical nightmare under normal circumstances but the Trump Administration’s decision to do so following the conclusion of the longest government shutdown in our country’s history is certain to cause chaos. Immigration courts across the country have been closed for the last month, including the non-detained court in San Diego. The result in San Diego is a backlog that has ballooned to over 800,000 pending immigration cases.

Beyond the case backlog, the “Remain in Mexico” policy will only add to the chaos at the Tijuana-San Ysidro border itself. Refugees will likely miss their court dates in the United States due solely to the logistical hurdles of transporting them across an international border and getting them to a courthouse in the United States in time for their hearings.

Congress Must Act

There is a crisis in the U.S. immigration system, but it is not the crisis that the Trump Administration has described in the context of his administration’s recent border proposals. Congress should demand an immediate halt to the “Remain in Mexico” policy and the “Migrant Protection Protocols” that followed. These policies violate our international and domestic law obligations to protect those who flee to our border seeking protection. The United States must return to the rule of law to ensure that we remain a safe haven for survivors of gender-based harm and others who flee to the U.S. for protection because they have no other options.

Sanctuary is Taking Action

Sanctuary for Families is a leading provider of immigration legal services for survivors of gender-based harm. We are based in New York City where many refugees, survivors of trafficking and other vulnerable immigrants, receive our life-saving services every day.  Over the next two weeks, we will be sending two delegations of immigration attorneys to Tijuana where they will provide legal and humanitarian assistance to migrants, including survivors of gender-based harm, who will be disproportionally impacted by this new policy.

Follow us on Facebook, Twitter, and Instagram to receive updates from the border, and please consider donating if you would like to provide financial support to sustain this life-saving work.

Thank you for your support for Sanctuary for Families, and for the immigrant survivors of violence who rely on our services.

The Truth About Human Trafficking & the Wall

President Trump has made many misleading and uninformed claims as he advocates for a wall at the southern border. We thought you should know the truth about modern-day slavery.

Watch on CNN: Lori Cohen, Director of Sanctuary’s Anti-Trafficking Initiative, respond to President Trump’s statements: https://cnn.it/2TjrAZp 


Over the past weeks, President Trump has repeatedly brought up human trafficking as he argues in favor of building a wall at the U.S.-Mexico border. The majority of his statements on the subject, however, have been either misleading or unfounded.

At Sanctuary for Families, we know from our clients’ experiences and from fellow anti-trafficking experts across the country that the reality of modern-day slavery is different from that described by the President. For this reason, we’re debunking five of the President’s most frequent claims about human trafficking:

1. Trump’s Claim: Human trafficking cannot be stopped without a steel barrier or concrete wall.

Many women and children attempting to cross the border are fleeing sexual violence and trafficking in their own countries, and seeking asylum in the U.S. — Shutting them out of our country makes them more vulnerable to exploitation.


2. Building a wall at the border will keep traffickers out of the United States.

Many U.S. citizens are involved in the sex trade and traffickers entering the U.S. through the southern border often do so lawfully.


3. Stricter immigration policies and tighter border security will stop human trafficking.

In the U.S., immigrants — particularly those who are undocumented — are at a much higher risk of exploitation than nonimmigrants.

By criminalizing immigrant communities, President Trump’s policies are pushing trafficking survivors deeper into the shadows and limiting law enforcement’s ability to investigate trafficking-related crimes.


4. Undocumented immigrants are criminals and bring violence to our communities.

Studies have shown that undocumented immigrants are considerably less likely to commit crimes compared to U.S.-born citizens.

In reality, most undocumented people crossing the southern border are fleeing horrific violence, including gender violence and sex trafficking, in their home countries.


5. Trafficking victims are immigrants from other countries who have been brought here unlawfully.

A very large number of victims of trafficking and sexual exploitation in this country are U.S. citizens and never cross any borders at all.


Building the wall will not stop human trafficking. If President Trump really wanted to protect trafficking victims, he would listen to experts, push for the reauthorization of the Violence Against Women Act (VAWA), and increase the number of available T visas.

 

Gender Violence Survivors Seeking Asylum Need Our Protection

Last week, President Trump addressed the nation to warn of “a growing humanitarian and security crisis at our southern border.” His administration’s rhetoric and immigration policies are endangering the lives of survivors of gender violence. Read our statement.

On Tuesday night, President Trump used his address to the nation to argue for a border wall that he says will make our nation safer. Sanctuary for Families believes that the President’s statement failed to address the deep-rooted issues in our immigration system and instead, focused on policies that would further harm and endanger refugees and other vulnerable immigrants, including survivors of gender-based violence.

At Sanctuary, we work with gender violence survivors, 70% of whom are immigrants. Many are seeking asylum due to extreme intimate partner violence, female genital mutilation (FGM), and/or death threats they experienced in their home countries. Some have been tricked or forced into the U.S. by traffickers. Some come directly to New York. Others have been detained at the U.S.-Mexico border, itself dangerous and re-traumatizing, and eventually, make it to New York where organizations like Sanctuary can help.

For those currently stuck on the Mexican side of the border, however, the consequences can be deadly. Due to the Administration’s new metering system, thousands of adults and children, most of whom are seeking asylum, will have to wait weeks, even months, before making their plea for protection in the U.S. Sleeping on streets or in over-crowded migrant shelters, their desperation and fear only increase, and they become more vulnerable to the kind of violence they fled in the first place.

To be clear, seeking asylum at any of our borders is not illegal. Turning asylum seekers away, however, is a cruel violation of international law. We need policies that protect survivors of gender violence seeking refuge within our borders and provide clear pathways to legal status, not ones that scapegoat immigrant communities and use their lives as political tools. To these ends, Sanctuary is taking action.

Every day, Sanctuary provides free high-quality legal representation to ensure that immigrant gender violence survivors receive the committed advocacy they need to present their best case for immigration status. Here in New York, we advocate for State legislation to better protect our immigrant communities and deepen our partnerships with fellow immigration agencies. Across the country, we partner with advocates to push for a functional immigration system and rational border policy.

For over 30 years, Sanctuary has served survivors of gender violence regardless of immigration status. As we enter the New Year, we reaffirm our long-held commitment to our immigrant communities both here in New York and across the border. Thank you for standing with us.

Warmly,

Hon. Judy H. Kluger
Executive Director, Sanctuary for Families