February 2, 2019
In this issue:
- New Chapter Portal Access Instructions
- Love Your Body Day Poster Contest Announced
- ERA Ratification Activities Draw News Coverage
- NOW Urges Department of Education to Withdraw Harmful Title IX Changes
New Chapter Portal Access Instructions
A new release for the chapter portal will go live in the next two weeks. Every chapter officer will receive a new password reset email. This release has new password parameters and every password must have at least: 1 uppercase character, 1 lowercase character, 1 numerical character and 8 characters. Please email Supria at firstname.lastname@example.org with any questions.
Love Your Body Day Poster Contest Announced
NOW Foundation’s Love Your Body Day Poster Contest usually draws hundreds of submissions from students at all grade levels. Teachers have often used the poster contest to talk to students about healthful practices, advertising pressures aimed at girls and young women, and other related issues. Cash prizes are offered and the top winning entrant is professionally reproduced and made available to send out upon request.
Here is the announcement; if you know of a talented student or interested teacher, please pass on the information.
Love Your Body Poster Contest
Are you an artist, sick of patriarchal beauty standards, someone who enjoys cash prizes, or maybe all three? Then we at the National Organization for Women Foundation have some great news for you!
Submissions are now being accepted for the National Love Your Body Poster Contest for 2019! The winning posters are featured on the website and used to promote Love Your Body events. Submissions will be accepted from now through April 14th!
Love Your Body Day is celebrated every year in October and was created to help girls and women break free from the pressure of ridiculous beauty standards.
ERA Ratification Efforts Draw News Coverage
We’re in the news again with actions in Virginia to ratify the Equal Rights Amendment, possibly making this the 38th and final state needed to fully ratify the ERA. Even though the Virginia Senate passed a ratification measure, conservatives in the House of Delegates have kept the measure bottled up in committee. There is still a chance that activists can find a way to get the ratification resolution to the floor of the House where they say they have the votes for passage. The legislature is scheduled to adjourn on February 23.
NOW President Toni Van Pelt, with Jeri Burton of Nevada, Chair of NOW’s ERA Committee, attended a press conference on Tuesday in the Capitol, along with scores of ERA advocates. Toni was one of the organizational leaders, along with former NOW president, Ellie Smeal, to speak at the gathering. Actors Patricia Arquette and Alyssa Milano, who have been appearing at public events in support of the ERA, drew increased attention from the press. (We include a link to the Washington Post article and photo below, with both Toni and Ellie in the background of the press conference.)
Reps. Jackie Speier (D-Calif.) and Carolyn Maloney (D-N.Y.) spoke about their respective ERA bills; Rep. Speier is lead sponsor of the House Joint Resolution 38 with 141 co-sponsors to remove the deadline from the preamble of the 1972 resolution (which would also remove the 1982 extended deadline). Rep. Maloney spoke about her bill (H.J Res. 35) which would require starting the ratification process again and also makes clear that women are the ones whose equal rights need to be assured. Maloney has added this statement to the text, “ section 1. Women shall have equal rights in the United States and every place subject to its jurisdiction. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
A suggestion: for any states that are thinking of adding an Equal Rights Amendment to their state constitution, the Maloney language could be considered as being perhaps a stronger protection of equal rights for women than that in the 1972 ERA.
Sen. Ben Cardin (D- Md.) who is the original author of the deadline removal legislation, also known as the three state strategy bill, announced that Sen. Lisa Murkowski (R- Alaska) is a lead cosponsor of the Senate bill, S.J. Res. 6, which was introduced on January 25
The two senators authored an op-ed piece which appeared in the Washington Post on January 25, “It’s Time to Finally Pass the Equal Rights Amendment”,
The senators point out that Article V of the Constitution contains time limits for ratification of amendments and the 27th Amendment concerning Congressional pay raises was ratified more than 200 years after Congress proposed it in 1789 as part of the original Bill of Rights.
On a separate, but related note, a letter which Rep. Maloney received several years ago from the Archivist of the United States confirms that Article V of the Constitution does provide for rescission of affirmative votes to ratify. So those handful of states that attempted to overturn their prior votes to ratify the ERA did so in vain. Some news reporters and politicians are under the mistaken impression that rescission votes had force, but that is definitely not the case.
Here is a selection of recent news articles and television coverage:
Virginia Senate Passes Federal Equal Rights Amendment, January 15, 2019
Forty Years Later The ERA is Still Not Part of the Constitution, January 29, 2019
ERA Supporters to Protest Daily After Resolutions Killed, January 29, 2019
Georgia Push for the Equal Rights Amendment, January 30, 2019
This Woman Just Derailed the Equal Rights Amendment Yet Again, January 31, 2019
NOW Urges Department of Education to Withdraw Harmful Title IX Proposed Changes
NOW joined more than 100,000 organizations and individuals who submitted statements to the U.S. Department of Education regarding a proposed revision of Title IX policies and programs that address sexual harassment and assault at schools which receive federal funding. If the regulation is adopted, these extensive changes would restrict educational institutions’ ability to effectively address complaints of harassment and assault and would greatly increase the risk of harm to students at K -12 schools, colleges and universities. NOW, along with many of our allied organizations, called for the Department to withdraw what we believe to be many harmful changes to Title IX, a civil rights law intended to advance equal access to education. Here is our comment letter.
Submitted via www.regulations.gov
January 30, 2019
Kenneth L. Marcus Assistant Secretary for Civil Rights Department of Education 400 Maryland Avenue SW Washington, DC 20202
Re: Docket No. ED-2018-OCR-0064, RIN 1870–AA14, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance
Dear Mr. Marcus: I am writing on behalf of the National Organization for Women (NOW) representing 300 chapters in every state and the District of Columbia and hundreds of thousands of members and contributing supporters in response to the Department of Education’s (ED) Notice of Proposed Rulemaking (“NPRM” or “proposed rules”) to express our strong opposition to the proposed regulation relating to sexual harassment as published in the Federal Register on November 29, 2018.
Title IX Must Be Retained – Title IX is an important civil rights law that has been shown to be fair and effective in improving access to education for tens of millions of girls and women, as well as boys and young men, as the law is gender-neutral. Title IX is praised for countering stereotypes that discouraged women and other marginalized groups from higher achievement in education. Their attainment of four year and graduate degrees since then is remarkable. Women’s entry into the professional ranks of business, education, medicine, law, technology and other fields since then is envy of other developed nations and has strengthened the national economy. Title IX as the needed booster for girls and women in athletics has led to the number one standing for the United States in the Olympics. It has provided for countless girls and young women the important experience of healthful and confidence-building sports participation. Title IX’s advocacy for student safety and an end to bullying, harassment and assault at educational institutions is essential in preparing young men and young women for a future where mutual respect and negotiation should be the norm. Despite these many important gains under Title IX, we have not yet fully attained the goals of equal access to education and safe schools where students are supported and protected. That is why Title IX’s original intent, regulations, and Department of Education, Office of Civil Rights guidance documents of 2001, 2011 and 2014 must be retained.
For reasons that we will discuss, the National Organization for Women calls upon the Department of Education to withdraw RIN 1870-AA14, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.
NOW an Early Advocate for Equal Education Access – The National Organization for Women was an avid supporter in the early 1970s of legislation which enhanced educational and athletic opportunities for girls and women and we were thrilled at the passage of Title IX of the Education Amendments of 1972. This was when women were traditionally refused admittance at many post-secondary institutions. Once admitted, many women students found themselves demeaned, harassed and attacked – mostly by male students – while school administrators looked the other way. Regulatory action was needed. NOW and allies pressured a resistant federal government to develop regulations implementing Title IX, which finally adopted in 1975. The next year, National Organization for Women co-founded the National Coalition for Women and Girls in Education (NCWGE), to monitor and advocate for progress under Title IX.
Coalition Report Details Sex and Gender-Based Harassment Widespread – Impressive gains towards Title IX’s equal educational access have been made by women and girls in the intervening years, but there are notable exceptions. Our allied organizations in the National Coalition for Women and Girls in Education publish a report every five years detailing progress and the need for improvement www.ncwge.org in many areas. The Coalition’s 2017 report notes that sexual and gender-based harassment remain pervasive in K-12 schools and on college campuses, often under-reported. Among their key findings:
- Sexual harassment is prevalent in schools and college campuses, with both male and female students being sexually harassed, and with consequences that can undermine their academic success. Nearly half of middle and high school students report being sexually harassed, with harassment particularly extensive among lesbian, gay, bisexual, and transgender students – causing nearly a third to say that they felt unsafe or uncomfortable enough to miss school.
- More than 60 percent of college undergraduates experience some form of sexual harassment, with nearly equal numbers for men and women. More than 20 percent of women and five percent of men report being raped or sexually assaulted in college.
- When sexual harassment occurs, Title IX requires that schools take immediate, effective action to eliminate the hostile environment, prevent the recurrence, and remedy the effects on the victim.
- The report also notes that a 2011 Department of Education Office of Civil Rights (OCR) guidance affirmed that rape is always severe enough to create a hostile school environment. The OCR guidance and the 2014 Q & A document outlined requirements for how schools must act to prevent, investigate, and remedy sexual assault, stating that “a school has a duty under Title IX to resolve complaints promptly and equitably and to provide a safe and nondiscriminatory environment for all students.” The 2017 NCWGE report also states that several nationwide surveys found that sexual harassment of both elementary and middle school students is widespread, with middle school girls (56 percent) more likely than boys (40 percent) to experience sexual harassment. A full 85 percent of LGBTQ students facing verbal harassment, and another 27 percent physically harassed and 13 percent physically assaulted. Despite these alarming figures, the Department of Education’s Civil Rights Data Collection (CRDC) found that 67 percent of Local Education Agencies reported zero allegations of harassment or bullying for the 2013-2014 school year. The CRDC data is belied by the findings of multiple surveys, but also points up the problem that harassment is most often not even reported. The proposed Title IX regulation change, we believe, would exacerbate problems of harassment and bullying at the K- !2 level — which remain insufficiently addressed. Notably, there is a widespread lack of trained Title IX coordinators who advise schools and the parties involved of responsibilities and appropriate procedures.
Harmful Aspects of the Proposed Regulation
Our allies have provided this brief summary of the most harmful provisions of the proposed Title IX regulation, which we include below:
- Notice: In many instances, schools would not be responsible for addressing sexual harassment, even when school employees knew about the harassment.
- Off-campus/online: Schools would be required to ignore harassment that occurs outside of a school activity, including most off-campus and online harassment.
- Definition of harassment: Schools would be required to ignore harassment until it becomes quite severe and harmful and denies a student educational opportunities.
- Deliberate indifference: Schools would be allowed to treat survivors poorly as long as the school follows various procedures in place, regardless of how those procedures fail to help or harm survivors.
- Supportive measures: Schools would be allowed to give survivors weak (or even harmful) “supportive measures.”
- Religious exemptions: Religious schools would be able to claim “religious” excuses for violating Title IX, even if the school had never before requested a religious exemption from ED.
And in the rare cases when schools would be required to respond, they would be allowed—or even required—to deny harassment victims of due process. For example:
- Timeframe: There would be no clear timeframe for investigations, and schools would be able to delay taking any action if there is also an ongoing criminal investigation.
- Presumption of no harassment: Schools would be required to presume that no harassment occurred.
- Standard of proof: Many schools would be required to use an inappropriate and more demanding standard of proof to investigate sexual harassment than to investigate other types of student misconduct.
- Cross-examination: Survivors in college and graduate school would be required to submit to live cross-examination by their rapist’s advisor of choice.
- Appeals: Schools would be required to give unequal appeal rights with respect to sanctions.
- Mediation: Schools would be allowed to pressure survivors into mediation with their assailants.
Department Offers No Valid Rationale or Consensus for Rule Change – There is no valid rationale for the Department to advance this proposed regulation. The Department has failed to demonstrate consensus among educators that these changes are desirable or justified. The Department provides no credible evidence that provisions in the proposed rule would improve school safety, would enhance student learning, would be effective in responding to instances of sexual or gender harassment, bullying, physical or sexual assault. What could motivate the Department to propose a drastic reversal of long-standing policy steadily advancing the cause of equal educational access and a safer learning environment for students? We would like to know the true reason.
Students Put at More Risk if Regulation Is Adopted – It is abundantly clear to us that many provisions included in the proposed Title IX regulation, if implemented by K – 12 schools, colleges and universities, will put at risk hundreds of thousands of students, with little recourse for victims to obtain protection and support services. If educational institutions adopt all provisions of the proposed regulation regarding responses to sexual harassment and assault, safety for all students will be seriously undermined. Permitting postsecondary institutions to ignore complaints of sexual harassment and assault from students who do not reside on campus excludes nearly 90 percent of the student population and renders meaningless the purpose of Title IX’s goal to advance equal access to education. We know from decades of experience that without support survivors of sexual harassment and assault often drop out of school, some to never attain a degree and many who will suffer from depression and anxiety because of the experience. Students at the K – 12 level often experience learning difficulties and other difficulties, if they are not provided with essential support and safety services.
Harassment Likely to Increase – The proposed regulation, in effect, gives a green light to perpetrators of sexual harassment and assault. It is unfortunate that in advancing this ill-conceived proposed regulation the Department has given more credence to the views of parties formerly accused of sexual harassment and assault than to survivors who have been harmed. Survivors’ equal access to an education, as Title IX is intended to advance, will again be severely diminished if this regulation is adopted. Further, we believe that the regulation will set back successful efforts to curtail verbal and physical harassment at K – 12 schools. We note that AASA, the School Superintendents Association, with 13,000 members, has criticized the proposed regulation as “unconscionable attack” on student safety that would provide less flexibility, add new costs and open up schools to increased litigation costs.
Virtually Guarantees that Respondents Win – The requirement for some schools to use the criminal law standard of “clear and convincing evidence” in some disciplinary proceedings is particularly objectionable. Traditionally, the “preponderance of evidence” standard has been used because this standard of proof treats both sides equitably. Title IX as a civil rights law requires that grievance proceedings be equitable. Adopting the “clear and convincing” standard violates Title IX’s requirement that all complaints be resolved in an equitable manner because the ultimate goal is to support both party’s access to education. Use of the preponderance of evidence standard in adjudicating sexual harassment and assault complaints makes it nearly impossible for any survivor/complainant to prevail. Witnesses to sexual harassment or assault are rare. Additionally, survivors will be reluctant to come forward knowing that the proceedings are structured against them. Many would fear that they would be subjected to detailed personal and humiliating questioning rooted in stereotyped victim-blaming.
Furthermore, the proposed rule would demand that schools establish a hostile and confrontational hearing process along with adversarial and confrontational cross-examination, without necessary procedural protections that would undoubtedly add to the trauma experienced by the student who has already experienced harassment or assault. Incredibly, this proposed rule would allow K-12 schools to use this adversarial process, even when children are likely to be intimidated under hostile questioning by an adult. The proceeding would be further intimidating if the individual named as the harasser is a teacher, an administrator or other school employee. Schools would not be required to apply general rules of evidence or trial procedure, such as requiring an attorney representing the complainant to be present to object to improper questions, nor would a judge be required to be available to rule on objections. The lack of these essential protections would victimize the complainant all over again.
Regulation Would Harm Schools, Be Costly – We further believe that the proposed regulation will be harmful for schools, colleges and universities who will likely see an increased number of incidents among their student populations. This would likely result in the need for heightened involvement of law enforcement authorities, unfavorable media attention, distressed families withdrawing their children from school and negatively impact schools’ donor support. One of the stated reasons for this regulation change by the Department to help educational institutions “save money” is absurd on its face. All educational institutions have an obligation to promote student safety, to adopt policies and programs that advance safety and the ability to learn in a secure environment, and to provide assistance to students who are affected by harassment or bullying, sexual or physical assault. It is an unfortunate reflection upon the Department that a claim to “save money” should be cited as a major objective over and above efforts to promote a safer school environment and provide assistance to student survivors of harassment, bullying, and assault.
Expansion of Religious Exemption Unwarranted – The Department has taken advantage of this opportunity, without justification, to impose a change in procedures for religious exemptions related not just to sexual harassment and assault. The proposed rule eliminates – in contravention of civil rights law — the existing requirement that religiously-controlled schools request in writing advance permission and notice. This will lead, as others point out, to confusion for students who may not want to attend a school that claims a religious exemption which allows discrimination relating to reproductive rights or LGBTQ rights.
Highly Prescriptive Grievance Procedures Confusing and Costly – The proposed Title IX regulation changes pertaining to grievance procedures have drawn the most stringent criticism in that they are both highly prescriptive and objectionable. The requirement that schools have specific grievance procedures for different areas of education, such as grievance procedures related to employment, athletics, career technical education, civil rights and so forth could be burdensome for many. Such extensive requirements are potentially costly, confusing and conflicting. Schools have found the previous Title IX guidance on sexual harassment and assault grievance procedures sufficiently flexible and useful and were able to continually refine them as they needed. Similarly, the new inclusion of restrictive definitions of sexual harassment and actual knowledge in the Title IX regulations may influence their improper use in other Title IX reporting procedures.
The NPRM’s highly prescriptive focus on the recipient’s/school’s role in adjudication via dictating a specific sexual harassment related set of grievance procedures often conflicts with state and local laws and policies and is also against the principle of state and local control. Additionally, many of the prescribed procedures are unfair and inappropriate for the participants at all education levels. Additionally, the NPRM would encourage expensive litigation instead of complaints that could be handled at the school level or through a Title IX complaint which can be filed by anyone.
Proposed Changes Must Not Weaken Title IX – The proposed Title IX regulation contains far-reaching and improper changes to current Title IX regulations. Any changes should be totally congruent with the wording of Title IX and the U.S. Constitution. Additionally, any changes should improve, rather than weaken, the implementation of Title IX for all that need protections against sex discrimination related to education. Any change should be based on broad consensus and evidence that the changes are needed and cannot be accomplished through existing regulations, Dear Colleague guidance letters and Q & As from the Department’s Office of Civil Rights. Furthermore, changes should be fully congruent with the Title IX text and the Constitution. Any changes, we stress, should strengthen and improve – not weaken as the proposed rule attempts to do — implementation of Title IX in its protections against sex discrimination related to education. In conclusion, we reiterate for all the reasons discussed here and others that Title IX advocates may identify, we strongly urge the Department of Education to withdraw, in its entirety, RIN 1870-AA14, the Title IX NPRM, and retain all provisions of the 1975 regulations, the Department of Education, Office of Civil Rights’ 2001 guidance, the 2011 Dear Colleague letter and the 2014 Q & A guide as the most equitable and effective policies for schools to respond to sexual harassment and assault. In addition, retention of those policies will best enable schools to carry out programs aimed at preventing sex discrimination, harassment and assault, while promoting student safety and supporting students’ equal access to education.
With best regards,
Toni Van Pelt
National Organization for Women