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

In November 2018, the US Department of Education published a Notice of Proposed Rulemaking on the Federal Register regarding Title IX of the Education Amendments of 1972 (Title IX). During the following notice-and-comment period, I submitted the following comment to the Department of Education outlining my concerns regarding the proposed changes to Title IX.

The comment has been edited to protect my privacy and to limit my readers’ encounters with descriptions of sexual violence. If you wish to read the full comment, you can probably find my comment on the docket for the NPRM.

January 30, 2019

The Honorable Betsy DeVos
Secretary of Education
US 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 Secretary DeVos:

I am writing as a survivor of sexual violence, a former educator, and a concerned citizen. Thank you for the opportunity to review and comment on the Department of Education’s (ED) Notice of Proposed Rulemaking (“NPRM,” “proposed regulation,” or “proposed rule”) as published in the Federal Register on November 29, 2018. I respectfully submit my concerns regarding the proposed rule.

I was sexually assaulted during my first semester of college, in February 2010. I was a spring admit at Mount Holyoke College, one of the first institutions of higher education founded for women when a majority of colleges would only permit men to attend.

I didn’t tell anyone about my experience at the time. I didn’t want to go to law enforcement; I didn’t think it would be safe or reassuring. I didn’t report it to the school, because I didn’t know that I could, and I didn’t think that they could do anything for me. At the time, sexual assault was only mentioned in Mount Holyoke’s student handbook as a “special problem” associated with alcohol abuse. (It wasn’t until the 2014-15 academic year, after I had graduated, that the College added a sexual assault/sexual misconduct policy to its handbook. It wasn’t clear to me until now, reading the College’s current sexual assault/sexual misconduct policy, that the policy would also apply to students in the Five College Consortium, like the man who assaulted me.)

This was before the US Department of Education issued its Dear Colleague letter in October 2011, which established that the requirements of Title IX pertaining to sexual harassment also cover sexual violence, and recognized that sexual violence interferes with students’ right to receive an education free from harassment, violence, and discrimination on the basis of sex and gender. Prior to this letter, there was no existing guidance from the US Department of Education regarding campus sexual assault. Before 2011 was left to individual educational institutions to enforce policies surrounding sexual violence beyond what Title IX explicitly addressed as “sexual harassment.”

According to the 2011 Dear Colleague letter, Title IX requires a school to take immediate action to eliminate harassment, prevent its recurrence, and address its effects if a school knows or reasonably should know about student-on-student harassment that creates a hostile environment. After 2011, had I reported what happened to me to a professor, teaching assistant, or supervisor at my on-campus job, my school would have been obligated to initiate an investigation. Under the proposed rule, if enacted, my college would have been permitted to disregard a report of sexual harassment or misconduct if I reported to a professor whom I trusted but did not file a formal complaint with a designated Title IX Coordinator with whom I was not familiar (§§ 106.44(a), 106.30).

I didn’t want to report to law enforcement because I did not want to subject myself, or the man who harmed me, to the trauma of coming in contact/conflict with our current criminal legal system. For a queer, disabled student like myself, reporting to my school would have been the only avenue for relief, serving as a parallel option based in civil rights, rather than criminal, law. However, the requirement of a live hearing or cross-examination in the proposed rule (§ 106.45(b)(3)(vi)-(vii)) would make the Title IX grievance process, which is grounded in civil rights law, look more like a criminal legal proceeding. The US Department of Education has failed to provide adequate justification for this change.

Sexual violence on college campuses is already underreported. I am among the 90% of survivors of campus sexual assault who do not report.[1]

This is the first time I have talked about my experience in any detail. My experience exacerbated symptoms of post-traumatic stress disorder and major depressive disorder. Until I started meeting with a therapist, I self-medicated through alcohol and other forms of self-harm. I almost dropped out of college during my junior year. I didn’t tell anyone.

In a culture of shame and silence that already hinders reporting, the proposed rule would further discourage survivors from reporting sexual violence they experienced on campus.

As a result, survivors will receive less support and fewer opportunities for redress, which will deny or limit all survivors’ ability to participate in or benefit from educational programs or activities.

The US Department of Education should immediately withdraw its current proposal and dedicate its efforts to designing and promoting policies that ensure equitable access to education for all students.



Chelsea R. Miller

[1] Fischer, B., Cullen, F., & Turner, M. (2000). The Sexual Victimization of College Women (NCJ 182369). Retrieved from the National Criminal Justice Reference Service:


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: