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University Response to New Proposed Title IX Regulations - January 30, 2019

January 30, 2019

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

RE:  (34 CFR Part 106) Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance; Proposed Rules implementing Title IX [Docket ID ED-2018-OCR-0064]

Dear Ms. Bull: 

Johns Hopkins University, one of America’s leading research universities enrolling over 25,000 undergraduate and graduate students, submits the following comments and recommendations in response to the proposed rule Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, as published in the Federal Register on November 29, 2018.    We share the Department of Education’s goals to ensure that sexual harassment is addressed on our campuses by assisting and protecting victims and also ensuring fair procedures for the investigation and resolution of complaints.

Organizations of which Johns Hopkins is a member have also sent comments to the Department and we refer you, in particular, to the January 24 letter from the Association of American Universities and the January 29 letter from the American Council of Education.  Although the proposed rule is a comprehensive proposal raising a number of issues, we wish to focus on the following three matters:


I. Clarify that other institution policies and procedures will remain fully available to allow institutions to address problematic conduct that does not fall within the limited Title IX purview clarified in these regulations.
II. Live hearings should be optional, not required.
III. If the requirement for live hearings is included in the final version of the rules, then written questions should be substituted for live questioning.


I. Termination of Grievance Procedures and addressing problematic conduct through other institution procedures – proposed § 106.45(b)(3)

Johns Hopkins University appreciates the Department’s recognition that “the regulation does not prevent a school policy from prohibiting sexual behavior that does not meet the Title IX definition of harassment.” See Background and Summary of the Department’s Proposed Title IX Regulation, p. 2. It would be helpful, however, for the Department to provide express clarification that the regulations are not intended in any way to impact or foreclose an institution’s ability to appropriately address, and if necessary, sanction, conduct of a sexual nature that – while not defined as harassment by the Department – is otherwise prohibited by institutional policies and procedures, such as through student, staff, and faculty conduct procedures.

II. Requirement for live hearings with Cross-Examination by Aligned Advisors – hearing requirement - proposed § 106.45 (b)(3)(vii)

Johns Hopkins University objects strongly to the Department’s proposed requirement for live hearings.   We urge adoption of the same standard proposed for elementary and secondary schools where live hearings are allowed, but not required.   In proposing this option for the elementary and secondary education sector, the Department took note of the “sensitivities associated with age and developmental ability”, while choosing to ignore other important sensitivities.   Institutions need to be able to address the individualized needs of their students, for example, and including, students with mental health conditions, including anxiety disorders, who are present at all levels of the education system, including at institutions of higher education.   Institutions, investigators and decision-makers must have the option to craft their policies and procedures in a way that protects the best interests of all students and the broad proposed rule requiring live hearings is not consistent with that shared goal. 

III. Requirement for live hearings with Cross-Examination by Aligned Advisors – manner of questioning – proposed § 106.45 (b)(3)(vii)

If the Department remains insistent that live hearings must be a part of the grievance process for Title IX cases, we strongly urge that live questioning with cross-examination by advisors should be prohibited.  Johns Hopkins University’s current procedures allow for the submission of written questions to the investigator(s) and adjudication panels by either party.  This process works well and is more sensitive than potentially aggressive and/or intimidating questioning by hostile parties (or their advisors) during the proceedings.


On behalf of Johns Hopkins University, we thank you for the opportunity to provide feedback on this NPRM. We are hopeful that our constructive comments on improvements to the proposed rule are helpful, and we welcome any questions you may have.


Kimberly Hewitt
Vice Provost for Institutional Equity


What does Equal Opportunity mean at JHU?

The University does not discriminate on the basis of sex, gender, marital status, pregnancy, race, color, ethnicity, national origin, age, disability, religion, sexual orientation, gender identity or expression, veteran status or other legally protected characteristic.

The University's equal opportunity policy applies to all academic programs administered by the University, its educational policies, admission policies, scholarship and loan programs and athletic programs. It applies to all employment decisions, including those affecting hiring, promotion, demotion or transfer; recruitment; advertisement of vacancies; layoff and termination; compensation and benefits; and selection for training. Consistent with its obligations under law, it also extends to the maintenance of affirmative action programs for minorities, women, persons with disabilities and veterans.

Every member of the Johns Hopkins University community deserves equal access to the abundant educational and employment opportunities we offer. The Office of Institutional Equity coordinates ongoing efforts to make the campus accessible and to make JHU programs available to everyone.



Discrimination and Harassment

In the vibrant, diverse community that is Johns Hopkins University, it is essential to foster an environment in which our students, faculty and staff are able to learn and work free from all forms of harassment and discrimination. Our policies are clear and specific, and complaints will be investigated promptly and fairly.


Sexual Misconduct

The personal safety of every member of our community is the top priority at JHU. If you have been sexually assaulted or a victim of sexual violence or harassment, we urge you to get medical care and reach out to a counselor for emotional support. We also stand ready to assist you with filing a complaint through the university and/or local law enforcement, and encourage you to do so.


ADA Compliance and Disability Accommodations

Religious Accommodations

As part of our commitment to diversity, inclusion and non-discrimination, Johns Hopkins University makes good faith efforts to reconcile potential conflicts between an individual’s religious beliefs and university work or academic requirements.

The University assigns a high priority to the implementation of its equal opportunity policy, and significant University resources are devoted to assuring compliance with all laws prohibiting discrimination in employment and educational programs.

Read the full statement from President Daniels