Chancellor Gallagher’s Comment on Proposed Changes to the Administration of Title IX

January 30, 2019 

Brittany Bull
U.S. Department of Education 400 Maryland Ave., SW Room 6E310
Washington, D.C. 20202 

Re: Docket ID ED-2018-OCR-0064

Dear Ms. Bull: 

As Chancellor of the University of Pittsburgh, I am grateful for the opportunity to comment following the Department of Education’s notice of proposed rulemaking on Title IX, which the Department issued on November 29, 2018. 

Pitt is a member of the Association of American Universities (AAU) and one of the nation’s premier public institutions for higher education and research. Our five-campus community spans more than 34,000 students as well as 13,000 faculty and staff members who are actively engaged in extending our institution’s proud legacy of leveraging knowledge for society’s gain. 

The University is—and will continue to be—steadfast in our commitment to providing a learning environment that is free from sexual misconduct, harassment and discrimination. We are equally committed to promoting fairness and equity. Consequently, we are submitting this comment out of concern that some of the proposed rules may impede us from sufficiently supporting these values. 

Organizations such as the AAU and the Association of Independent Colleges and Universities in Massachusetts (AICUM) have articulated important issues and concerns in their public comments that strongly align with our institution’s concerns about the proposed regulations. However, I would like to take this opportunity to emphasize and amplify certain points covered in those public comments that are particularly important to the University of Pittsburgh: 

  • We request that the Department revisit the imposition of a prescriptive quasi-judicial process for sexual harassment allegations, such as requiring hearings, cross-examination and evidentiary rulings. These proposed changes have the potential to dissuade all parties, including witnesses, from engaging in the Title IX process. As addressed in the AAU and AICUM comments, these changes also intrude on existing internal processes and do not take into consideration a trauma-informed approach. 

  • We request that the Department revisit its proposed language limiting the scope of Title IX protections based on the geographic location of an alleged incident. This language could lead community members to incorrectly believe that a school cannot address off-campus activities that impact its educational or employment environment, despite that institution’s capacity and—in some cases—duty to do so. As a result, this proposed language could have a chilling effect on individuals who are contemplating coming forward. 

  • We request that the Department reconsider its proposed narrowed definition of sexual harassment to allow, instead, for a definition consistent with institutions’ commitment and obligation to effectively prohibit discrimination in the educational and employment environment. We understand that the proposed regulation will not limit our ability to respond to all conduct currently included within the definition of sexual harassment, even if that conduct is excluded from the new definition. Nonetheless, we believe that the Department’s proposed definition of sexual harassment has the potential to sow confusion and reduce reporting out of concern that an allegation does not fall within this more restricted classification. 

  • We request that the Department consider supplementing the proposed rules to clarify the relationship between Title VII and Title IX. As currently written, these rules could be construed to create conflicting rights based solely on the status of the party within the University or the specific form of discrimination alleged. 

With these requests, the University of Pittsburgh joins a growing chorus of institutions and organizations that are urging the Department to revisit and revise its proposed regulations to provide institutions with additional flexibility to address sexual harassment in their individual communities. We believe that if executed as currently proposed, the Department’s regulations have the potential to adversely affect the higher education landscape in direct, diverse and consequential ways. As a result, I appreciate this opportunity to articulate our institution’s values, share our perspective on this important issue and submit a formal comment requesting revisions of the proposed regulations. 

Sincerely, 

Patrick Gallagher