On Friday November 16, 2018, the Department of Education released a proposal to amend the regulations implementing Title IX of the Education Amendments of 1972 (Title IX). The Notice & Comment period will open soon. If the proposal is finalized utilizing this language, campuses will become less safe for victims/survivors, and perpetrators will be less frequently held accountable.
These are proposed regulations – not simply guidance – and will do immense damage. Some of the most dangerous and harmful proposed regulations will:
- Limit a school’s responsibility to respond to off-campus or online sexual harassment, even if a victim/survivor’s education is impacted, for example, attending classes with their harasser.
- Limit a school’s responsibility to deal with sexual harassment unless it is so severe and pervasive that it denies a student access to education (i.e. the victim/survivor drops out of class or school). This means students would be forced to endure more severe sexual harassment before their school must respond than an employee would have to endure before their employer must respond. By the time a school is legally required to respond under these proposed regulations, the victim/survivor may have already experienced irreparable harm to their education.
- Limit the school employees who must respond to a victim/survivor’s report (or something they observe). A school would NOT be required to take action if the harassment is reported to someone other than one of those “responsible employees.” Athletic coaches would not be considered “responsible employees.”
- Allow a school to claim a religious exemption for noncompliance with Title IX without first applying to the Department of Education for a religious exemption, as is currently required. This would be particularly harmful to LGBTQ students, pregnant or parenting students (including those who are unmarried), and students who access or attempt to access birth control or abortion.
- Change the standard of evidence utilized in campus adjudication processes. The current standard of evidence utilized by schools is preponderance of the evidence. This is the same standard for civil trials and administrative hearings across the United States. The new regulations allow schools to use a much higher standard – clear and convincing evidence – but only for conduct code violations involving sexual harassment. The proposed regulations propose a higher standard for gendered violence than other student code of conduct violations.
- Allow schools to subject survivors to mediation and “conflict resolution” processes. This contravenes the purpose of Title IX and is not an appropriate resolution process to gendered violence. Require live hearings in campus adjudication processes at the post-secondary level, including cross examination of the victim/survivor by the respondent’s advisor – often a criminal defense attorney. This changes the current process, in which a victim/survivor and respondent are questioned by a neutral school official. The proposed regulations require live hearings at the post-secondary level, and allow a respondent’s advisor – often a criminal defense attorney – to cross examine the survivor.
If you have questions about the proposed regulations, please contact Lindsay Brice, MNCASA Interim Staff Attorney at firstname.lastname@example.org.
- The Notice & Comment period will open as soon as the proposal is published in the federal register. We expect that to happen very soon. Once it begins, the Notice and Comment period will only last 60 days. Sign up to be alerted when the comment period opens. Even if comments submitted to this proposal do not create immediate substantive change, they are crucial to provide support for future efforts to protect victims and survivors.
- Engage your network. Let them know the Notice & Comment period is coming and that comments are crucial. The Department of Education is required to read and respond to all comments.
- These proposed regulations are dangerous and will rollback years of progress for victims/survivors.
- This proposal will make campuses less safe for victims and survivors and shield schools from accountability.
- Prepare to engage in the Notice & Comment period. Read overview and guides on commenting: https://www.knowyourix.org/notice-comment-2018/
- Learn what notice-and-comment is and how to write a strong comment. Watch Know Your IX’s explanatory video on writing a powerful comment.
- Sign up to join Hands Off IX’s student and survivor led comment training call.
- Host a comment writing party. By working together, you can craft a well-researched argument that the Department of Education must respond to.
- Comments should:
- Be unique (not from a template)
- Include specific critiques of the proposed regulations
- Provide alternative policies
- Include data/statistics, not just anecdotes
Full proposed language: https://www2.ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdf