Photo credit: Alex Garland/Demotix-Corbis
On November 29, 2018, the U.S. Department of Education (DOE) published a Notice of Proposed Rulemaking (NPRM) that proposes amendments to Title IX regulations.
The public is invited to comment in response to proposed rules such as these. We strongly encourage you to join tens of thousands of Americans who have already exercised their right to do so.
Attorneys at the Women’s Law Project have analyzed the proposed regulations. We created two documents to help you understand the proposed rules, which we have determined undermine the purpose of Title IX and, if passed, will harm student victims of sexual harassment and violence.
You can review:
- The complete NPRM published in the federal register
- WLP’s detailed nine-page analysis of the proposed amendments
- WLP’s summary of our analysis of the proposed amendments (also posted below)
How to Submit Comment
Comments on these proposed rules must received by DOE by January 28, 2019. You can submit comments either on paper or online.
We have partnered with End Rape on Campus to provide a portal that makes it easier for you to submit electronic comment than by using the federal government’s website.
Access that portal here.
Please note that your name and comment will become public on Regulations.gov once submitted. If you’d like to submit a comment anonymously, you must enter “anonymous” as your name.
Signing in to this portal will lead you to a template. Please retain the formal docket number printed in the top-left corner and either add to the template or write in your own original comment. For more information about how to write an effective comment, check this resource published by Equal Rights Advocates. You will receive an email confirmation after you submit through the portal.
You may also submit comments on paper. You can send comments by postal mail, commercial delivery, or hand delivery by addressing it to Brittany Bull, U.S. Department of Education, 400 Maryland Avenue SW, Room 6E310, Washington, DC 20202. Telephone: (202) 453–7100.
Background
Title IX is a federal statute passed in 1972 that prohibits gender discrimination in education programs. Under Title IX, schools receiving federal money must respond to sexual harassment and sexual violence. Title IX has long been interpreted as requiring schools to take prompt and effective steps to eliminate and prevent sexual harassment and remedy its effects while treating student-complainants and students accused on sexual misconduct fairly pursuant to Title IX’s equality requirement.
Though discussions of this issue tend to focus on colleges, it is important to remember Title IX applies to all schools that receive federal funding, including K-12.
Note about language: In the context of civil rights law, “sexual harassment” is an umbrella term that includes sexual violence. Using the term “sexual harassment” in the context of analyzing and responding to Title IX rules is not minimizing or erasing the very serious problem of sexual violence.
Summary Analysis of Proposed Title IX Rules
The proposed regulations would, if adopted, harm student victims of sexual harassment because they:
- Drastically narrow the kind of behavior considered “sexual harassment” under Title IX
- Apply to far fewer students overall
- Reduce obligations of the school to address discriminatory behavior
- Mandate specific procedures that favor accused students
- Force schools to dismiss complaints that are not directly submitted to a small group of specific people through a new gauntlet of procedures
- Disregard sexual harassment or assault that takes place outside the school program or activity
- Disregard sexual harassment or assault that takes place out of country, such as during an independent study abroad program
- Force a student to prove that the sexual harassment or violence already deprived them of education, as opposed to requiring a school to intervene before the student is deprived of education, as is the entire premise of Title IX
- Immunize schools from liability if they follow steps of a response protocol, regardless of whether or not the situation was meaningfully addressed and remedied
- Permit but do not require schools to provide supportive measures for victim-complainants
- Force collegiate complainant-victims to make themselves available for cross-examination by an advisor or attorney, despite long-held court precedent that due process and fairness in school adjudication processes do not require it
- Leave parents and guardians in the dark about the rights of their children, as the rules do not require schools to notify parents about sexual harassment policies and complaint procedures
- Permits and in some cases mandate schools to raise the evidentiary standard for assessing sexual harassment violations from “preponderance of evidence” to “clear and convincing” which, despite misleading media reports to the contrary, is a historic shift in favor of accused students and is out of sync with other civil rights standards
- Mandate a presumption of innocence for the accused, but not a presumption of credibility for the complainant
- Allow schools to offer informal processes such as mediation without requiring school oversight or even the presence of a facilitator
- Ban complainants from appealing sanctions imposed on the accused
- Fail to provide any protection from retaliation for reporting harassment
- Allow extensions and delays without specifying a time period within which procedures must be completed, rendering the protective intention of Title IX precarious and uncertain
Beyond the procedural and legal analysis, it’s important to highlight who will be most harmed by the proposed Title IX rules. Girls of color, students with disabilities, and LGBTQ students disproportionately experience sexual harassment in schools. Therefore the new rules will disproportionately harm them.
Questions? Contact Tara Murtha at tmurtha@womenslawproject.org.
The Women’s Law Project is a public interest law center in Pennsylvania devoted to advancing the rights of women and girls.
Sign up for WLP’s Action Alerts here. Follow us on twitter and like us on Facebook.
We are a non-profit organization. Please consider supporting equal rights for women and girls by making a one-time donation or scheduling a monthly contribution.
