OAG Comments I NJ Office of Higher Education Comments

TRENTON – Today, New Jersey Attorney General Gurbir S. Grewal and Secretary of Higher Education Zakiya Smith Ellis announced that New Jersey is opposing a proposal by the U.S. Department of Education that would reduce federal law’s protections for students who have endured sexual violence and harassment.

Attorney General Grewal is among the leaders of a nineteen-state coalition of Attorneys General expressing “strong opposition” to the U.S. Department of Education’s proposal. The coalition, which Attorney General Grewal is leading with Pennsylvania Attorney General Josh Shapiro and California Attorney General Xavier Becerra, is urging the U.S. Department of Education to withdraw its proposal.

Secretary Smith Ellis also announced today that the Office of the Secretary of Higher Education (“OSHE”) submitted its own comment letter strongly opposing the proposal. According to OSHE, the rules proposed by the U.S. Department of Education would undo important work of institutions of higher education in New Jersey and across the country to put in place strong protections for survivors of sexual violence.

The comments from New Jersey and other states were submitted in response to a proposal published by the U.S. Department of Education in November 2018. If adopted, the proposed rules would be the first major changes to federal regulations addressing sex discrimination in education since 1975, when the federal government first adopted regulations to implement Title IX of the 1972 Education Amendments Act.

The proposed rules would significantly change how schools respond to complaints of sexual harassment, including sexual assaults. “Sexual harassment” itself would be re-defined so that schools would not be required to address unwelcome conduct of a sexual nature until the conduct becomes “severe,” “pervasive,” and “objectively offensive,” and unless the conduct is reported to designated school officials.

Even then, schools would be limited in their ability to respond to conduct that occurs online or off-campus, including sexual assaults that occur at private residences.

In addition, the proposed rules would require individuals who complain about sexual harassment, including sexual assaults, to undergo cross-examination by an advocate for the accused. The proposal also would impose new requirements relating to the standard of proof for deciding whether sexual harassment or violence occurred, making it harder for victims to prove their case. These changes would make school disciplinary proceedings more like criminal trials.

“The right to an education free of sexual harassment, violence, and discrimination is not a second-class right, and we will not allow it to become a second-class right,” said Attorney General Grewal. “We will not stay silent as the federal government invites schools to look the other way when students are victimized. We will not stand by as the federal government seeks to discourage survivors from coming forward. Schools in New Jersey are striving to provide educational environments free of sexual harassment, and we will not sit idle as the federal government tries to turn back the clock.”

“Students deserve to feel safe from all forms of sexual violence and harassment while they are in our schools, and we must do all we can to protect their civil rights,” said Secretary Smith Ellis. “Over the past several years, colleges and universities in New Jersey have taken positive steps forward to establish policies that aim to protect student survivors of sexual violence, educate students, staff and faculty, and lead to prompt investigation and adjudication of sexual assault cases. The rules proposed by the U.S. Department of Education would undo those efforts, undercutting the progress our state has made to address campus sexual violence. In the current era, progress is on the horizon yet justice for so many survivors remains elusive. Secretary of Education Betsy DeVos should withdraw these proposed rules.”

“Title IX was enacted in 1972 to ensure women and girls equal educational opportunity. In the guise of enforcing this historic legislation, the federal government’s proposed rule seriously undermines it,” said New Jersey Division on Civil Rights Director Rachel Wainer Apter. “Regardless of whether the federal government abandons its role in protecting the civil rights of all students, we will continue to enforce our state laws that prohibit discrimination in education, require schools to address sexual harassment, and require schools to provide all students an equal opportunity to thrive.”

Studies have found that about one out of every five women in college, and one out of every eighteen men, experiences a sexual assault or similar misconduct. Other research indicates that as many as 56 percent of girls and 40 percent of boys in grades seven through twelve are sexually harassed, with nearly one-third of the harassment taking place online.

Many incidents of sexual assault and other sexual harassment are never reported to authorities. A significant concern raised by the states opposing the U.S. Department of Education’s proposal is that the new rules would make victims even more reluctant to come forward.

As of Tuesday, the U.S. Department of Education had already received over 95,000 comments on its proposed rules. The comment period closed on Wednesday.

For more information on resources available to victims of sexual assault and other sexual violence in New Jersey, please visit the website of the New Jersey State Police at www.njsp.org/division/operations/sexual-violence-info.shtml. Colleges, universities, and other schools throughout the state also have resources available to help in cases of sexual violence and harassment.

Deputy Attorney General Marie Soueid and Assistant Attorney General Glenn J. Moramarco handled the matter for the Department of Law & Public Safety, with assistance from Deputy Attorneys General Donna S. Arons and Lauren Jensen.

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