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BPS Joins Science Community in Concern over Proposed Title IX Changes

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


RE: Comments on Proposed Amendments to Title IX Implementing Regulations


DOCKET ID ED -2018-OCR-0064


Dear Ms. Bull,


The academic and professional disciplinary societies in science, technology, engineering, mathematics, and medical fields (STEMM) that are signatories of this letter (Signatory Societies) appreciate the opportunity to comment on the U.S. Department of Education’s proposed Title IX implementing regulations, published on November 29, 2018, 83 FR 61462. As Signatory Societies, we are strongly committed to excellence in science, which depends upon setting the highest standards of excellence in STEMM education, research, and practice, and in the professional and ethical conduct of our members. Our members are faculty, researchers, practitioners, and students in STEMM fields; most are employed by or studying at research universities, other academic and research organizations, teaching hospitals, industry, and other STEMM-serving entities.


The Signatory Societies urge in this letter that the proposed rule changes should not be made final. We set forth below the strong scientific basis for a concern that the proposed amendments to Title IX regulations do not reflect the extant research and data on the nature and extent of harm caused by sexual harassment in educational programs. The research indicates the very real possibility that this proposal will have deleterious consequences, however unintended, for the safety and security of individuals and the contexts in which they study and work.


INTRODUCTION


STEMM fields are critically important to the economic strength, security, and prosperity of our nation, and the well-being of global society. Sexual harassment in STEMM fields is a significant barrier to the full participation of all of the talent in STEMM education, research, and professions, and undermines the integrity and quality of these fields. That is why we as the Signatory Societies are each taking action within our own organizations, as well as collectively across STEMM fields, to advance professional and ethical conduct, promote a supportive climate and culture, and prevent and address sexual harassment in STEMM. As scientists, we approach these aims with a commitment to research, data, and evidence-based policy, such as those set forth below. Appendix A provides more information about the Signatory Societies on this letter.


The Importance of Preventing and Addressing Sexual Harassment in STEMM — Women and people of color are a growing share of those enrolled in U.S. postsecondary institutions (see Tables 14 and 19 in https://nces.ed.gov/pubs2018/2018019.pdf), and are also a growing share of our nation’s workforce (see T. Alan Lacey, Mitra Toossi, Kevin S. Dubina, and Andrea B. Gensler, "Projections overview andhighlights, 2016–26," Monthly Labor Review, U.S. Bureau of Labor Statistics, October 2017, https://doi.org/10.21916/mlr.2017.29).

They represent the nation’s great promise of intellectual contributions to the advancement of science and to the knowledge age. While sexual harassment may affect individuals of any gender, research demonstrates that women are by far the primary targets and, among women, that women of color are prevalent targets. The Signatory Societies recognize the moral imperative to eliminate sexual harassment in STEMM, and further that in our national and global interests we must ensure full participation. The United States cannot afford to waste our most abundant intellectual talent, nor can society-at-large afford to be deprived of the contributions of that talent.
What the Research Shows — Research and evidence demonstrate that there has been little systemic progress in reducing the barriers to inclusion associated with sexual and gender harassment.

In the STEMM fields in particular, a recent 2018 consensus study by the National Academies of Sciences, Engineering and Medicine titled, Sexual Harassment of Women: Climate, Culture and Consequences in Academic Sciences, Engineering and Medicine (Academies Report), reported that sexual and gender harassment remain widespread and prevalent, and have negative outcomes for women, as well as others (albeit at lesser rates):


• Studies of workplace harassment show that rates of sexual harassment have not significantly decreased despite that laws have been in place to protect women from sexual harassment in academic settings for over 30 years (Academies Report pp. 39-41);
• Further, while anyone may experience sexual harassment, research shows that women in STEMM academia are more likely to experience sexual harassment, and at higher frequencies, and that in the vast majority of incidents of harassment of women, men are the perpetrators (Academies Report pp. 41-43);
• Greater than 50 percent of women faculty and 20-50 percent of women students encounter or experience sexually harassing conduct in academic science, engineering, and medicine (Academies Report p. 65);
• Women who have multiple societal identities targeted for bias, for example women of color, and “sexual- and gender- minority women” experience certain types of harassment, including gender and sexual harassment, at even greater rates than other women, and often experience sexual harassment as a manifestation of both gender and other kinds of discrimination (Academies Report pp. 44-46);
• The most common form of sexual harassment in academia, by far, is gender harassment (i.e., non-sexual behaviors that convey insulting, hostile, degrading, sexist, or sabotaging attitudes about members of one sex), and gender harassment has similar negative consequences for women as hostile environment and quid pro quo sexual harassment (Academies Report pp. 42, 25-27, 72);
• Many conditions that correlate with increased risk of sexual harassment appear in academia and higher education, particularly in STEMM fields (e.g., permissive, hierarchical, male-dominated organizations; protection for “star,” or older generations of, faculty; work in isolating environments such as labs and field sites) (Academies Report pp. 52-56); and
• The impact of sexual harassment on students occurs at all grade levels and includes lowered motivation to attend class, paying less attention in class, lower grades, avoiding teachers with a reputation for engaging in harassment, dropping classes, changing majors, changing advisors, avoiding informal activities that enhance the educational experience, feeling less safe on campus, and dropping out of school (Academies Report pp. 72-73).


Title IX Is Not the Only Solution, But It Is a Necessary and Essential Foundation — Existing legal structures (including Title IX) alone are insufficient to create the needed changes of conduct to reduce barriers to full participation. The Signatory Societies fully appreciate that institutions and organizations, including each of ours, need to work individually and collectively to create and promote policies, practices, and other tools, beyond the requirements of Title IX, driven by ethics, equity, inclusion, diversity, and excellence in STEMM fields.
As importantly, we are not questioning the good faith of institutions of higher education (IHEs). We do not expect most IHEs to abandon aims of good policy simply because changed Title IX regulations would now allow them to do so.


Nevertheless, it is crucial that Title IX requirements support effective policy and other efforts in academia to prevent and eliminate sexual harassment as a barrier to the full and equal participation, and full development, of all promising and talented women and men alike. We are not suggesting that regulations should address every detail of how effective policy is designed and implemented. Regulations can, however, help emphasize important standards; and, where regulations apply, they should further effective policy.


COMMENTS


Major Concerns of the Signatory Societies — The Signatory Societies recognize that some changes may be needed to the Title IX regulations, or at least in the manner in which they have been enforced previously. Nevertheless, the overarching issue remains — namely, that sexual harassment continues to be widespread and damaging to women, particularly women of color, in STEMM education, research and practice. The Administration’s proposal does not advance solutions to this problem, and some aspects of the proposal could very well exacerbate the harm. The Signatory Societies’ comments focus on three foundational aspects of the proposed changes that raise substantial concern.


1. The Definition of Harassment Is Too Narrow And is at Odds with the Intent of Title IX — It is particularly concerning that the proposal severely limits the scope of harm required to meet the definition of harassment and trigger required action by IHEs and other institutions with federally funded educational programs. The proposal overall does not reflect the documented, continuing, long-term harms of harassment that limit, alter, and interfere with the full and equal opportunity to participate in, and benefit from, educational programs and activities mandated by Title IX. Evidence bears out that these harms are not limited to direct targets of harassment, but that “indirect” or “ambient” sexual harassment is felt by, and has negative effects, beyond—and even if not directed at—any individual(s) (Academies Report pp. 28, 78). The Administration’s proposal evidences no recognition of these harms.


2. The Circumstances Under Which Title IX Applies Are Too Restrictive — The Administration’s efforts to strictly narrow the circumstances under which Title IX requires a response under the definition of “education program or activity” will result in circumstances where one or more institutions, in principle, should have the responsibility, and do have the ability, to respond—but no institution would have an obligation under the proposed Title IX regulations to respond—to very significant incidents of sexual harassment, and even incidents of sexual assault. The Administration seems to be limiting “program or activity” too narrowly as to time, place, and parties, e.g., to a single institution’s program and with all individuals directly affected having to be directly affiliated with that one institution. As explained below, this proposal would have an adverse impact and is unwarranted.


Particularly concerning is the example given by the Administration that an on-campus rape by an institution’s students would not trigger an institution’s obligation to respond under Title IX, if the victim were not formally a part of that institution’s educational program. This unnecessarily narrow interpretation of “program or activity” under Title IX does not take into account what research shows: that sexual harassment affects those who are aware of incidents, and that the occurrence of sexual harassment may increase when nothing is done. See e.g., Academies Report p. 47 (“the perceived absence of organizational sanctions increases the risk of sexual harassment perpetration”). Clearly, the fact of the rape, on its campus, by its students, regardless of the status of the victim, could create an unsafe, hostile environment for its students if the institution did nothing in response.


Another example of the problematic limitation of “program or activity” relates to the collaborative nature of STEMM education and research. Educational programs and research are commonly undertaken collaboratively among several institutions, involving multiple institutions’ faculty, researchers, and students, and undertaken at one or more of the participating institutions’ facilities, or perhaps, in other locales. If the target and accused in an incident of sexual harassment were not from the same institution, even though they were directly involved (and others from all the institutions were affected), one or more institutions should, as a matter of principle, have responsibility, and could in fact respond—but no institution would be obligated under the proposed Title IX regulations to respond to the incident. Such circumstances are not uncommon in instances of team science across two or more institutions. Graduate student trainees or early career scientists of one institution may be sexually harassed by peer or senior members of the team from another institution. Under the proposed regulations, these targets would be left without a Title IX regulatory recourse. This result is contrary to research showing that such harassment, if known in the field, may affect the safety, climate, and culture of the home institutions of all participating faculty, researchers, and students.


This highly limited definition of “program or activity” will frustrate the intent of Title IX, making no institution that is capable of responding, actually responsible under the regulations for responding to conduct that, in fact, negatively alters the culture and climate for students, faculty, and researchers, preventing full participation in the educational program and causing real harm.


3. The Notice Requirements Are Too Restrictive — The Administration’s proposed notice requirement is similarly problematic in that it eliminates any incentives for educational institutions to become aware of sexual harassment (and thereby obligated to respond). While there may be sound policy reasons for providing that some individuals who regularly interact with students need not be mandatory reporters of sexual harassment whose knowledge is imputed to the institution (e.g., to encourage engagement and maintain confidentiality when desired by targets), limiting effective institutional notice to notice received by the highest-level officials in action-empowered roles goes too far. This is the case both logically and based on what we know about human and social dynamics. It creates an incentive to limit the power to act and to adopt policies that avoid notice of harassment. It also creates a likelihood that obvious, widespread, or openly-practiced harassment will go unrecognized or, at least, unaddressed. The notice requirement also fails to reflect any realistic assessment of how students think about “who is in charge,” or who might be in in a position to take steps to end harassing conduct, and fails to take into account the “power dynamics” and “reluctance to report” often at play in sexual harassment cases.


CONCLUSION


Concerning Provisions of Proposed Regulations Are Without an Evidence-based Justification and Are Not Consistent with Title IX—There are a number of other concerning provisions that we could have taken up. However, the Signatory Societies have focused on three proposed fundamental provisions because they will reinforce barriers created by sexual harassment and leave no one with a regulatory obligation to address sexual harassment. These proposals are not mandated by, nor do they reflect, decades of administrative and court interpretations of Title IX. The Administration has provided no compelling reasons, or evidence, to demonstrate that its proposal is consistent with the broad intent of Title IX to eliminate sex-based discrimination in educational institutions.


Comment Period Should be Extended — The publication of these proposed rules during, and the establishment of a comment period that spans, the holiday season when it is difficult to engage stakeholders on a critical and complex issue, is a concern and justifies extension of the comment period by more than a few days.


Proposed Changes Should Be Delayed for Further Consideration — Uppermost, the scientific community is committed to the sound use of data as a foundation for making or altering policy to serve the best interests of our nation. Therefore, the Signatory Societies strongly recommend that the proposed rules should not be made final, with or without modification, until the Administration, with serious regard for the facts, evidence, and research referenced in this letter, reflects responsiveness to the prevalence and harm of sexual harassment in any new proposal. The Signatory Societies are available and committed to assist if called upon.
Thank you again for this opportunity to comment.



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