Hassan, Kuster at Concord roundtable

Lyn Schollett

N.H. Coalition Against Domestic and Sexual Violence

CONCORD — Republican Gov. Chris Sununu joined members of the state’s Democratic congressional delegation on Monday in criticizing proposed changes to federal rules governing the handling of sexual harassment or assault claims on college and university campuses.

“I am concerned that the proposed changes as currently written could jeopardize protections for victims of sexual harassment and assault,” wrote Sununu in a Nov. 19 letter to Secretary of Education Betsy DeVos.

The re-write of Obama-era guidance on the handling of on-campus sexual assault has been in the works for a year, under DeVos’ direction.

Opponents of the existing rules say they are too tilted in favor of accusers and deny the accused due process. The rewrite formally unveiled on Friday goes too far in the other direction, according to its critics.

Of particular concern to many is a narrowing of the definition of sexual harassment to apply only in situations where the conduct is “so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.”

“This means that sexual harassment must be endured until it becomes so significant that the student’s access to education is in jeopardy,” according to Sununu.

“Obviously, one goal of any sexual harassment policy in the educational setting should be to guard against the abuse escalating to the point that a student believes they have no other option but to disrupt or end their educational pursuits.”

Shared concerns

Sununu echoed many of the same concerns raised at a roundtable hosted at the Concord offices of the N.H. Coalition Against Domestic and Sexual Violence in Concord and attended by U.S. Sen. Maggie Hassan and Rep. Ann McLane Kuster.

They were joined by assault survivors, advocates, researchers and representatives of universities and campuses from across the state.

“The proposed changes to Title IX by Secretary DeVos and the Trump Administration will drastically undermine decades of progress designed to make our schools and campuses safer,” said Kuster. “Sexual harassment and assault are already one of the most under-reported crimes in our society and creating barriers for survivors will only serve to further increase the challenge of seeking justice.”

Kuster and others at Monday’s roundtable claimed the changes proposed by DeVos would permit schools to lower their evidentiary standards as they investigate misconduct claims and set an excessively high bar for defining harassment.

“We should be strengthening rather than undermining these critical protections that help survivors seek the closure they deserve and move forward with their educational aspirations,” said Kuster.

DeVos told the Washington Post she had worked to strike a balance while creating a more transparent and reliable process.

“We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas,” she said.

Narrower definitions

In addition to the narrower definition of sexual harassment, the proposed regulations would require schools to respond to allegations only when the school has “actual knowledge” of the harassment and only if the harassment occurred within the school’s own education program or activity.

“This could potentially result in schools failing to address instances of abuse that absolutely should be covered under Title IX,” according to Sununu. “This stipulation is wrong and must be reassessed.”

Lyn Schollett, executive director at the NHCADSV, said the changes “undermine the very purpose of Title IX in terms of creating a safe learning environment for students.”

The changes come as proposed amendments to the enforcement regulations for Title IX, the 1972 law that prohibits federally funded educational institutions from discriminating against students or employees based on sex.

They are currently open for a 60-day public comment period. Unlike the Obama-era guidance, which DeVos suspended last year, the regulations if adopted will have the force of law.

“When the Obama Administration issued this Title IX guidance, they really took a strong step forward to outline how institutions should respond to allegations of sexual assault and ensure that survivors felt safe and supported,” said Hassan at the Concord roundtable.

“The proposal announced by Secretary DeVos is really a step backward. It goes in the wrong direction by weakening protections for students and making it easier for colleges and universities to dodge their responsibilities.”