On November 29, 2018, the Federal Register published the U.S. Department of Education proposed changes to the regulations implementing Title IX of the Education Amendments of 1972. The proposed regulations can be found here.
Key Proposed Changes
- Definition: Sexual harassment means “(i) an employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct; (ii) unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or (iii) sexual assault as defined in 34 CFR 668.46(a).”
- Response obligations: Schools would be obligated to respond only when: (1) the school has actual knowledge of sexual harassment; (2) that occurred within the school’s own “education program or activity”; and (3) against a “person in the United States.”
- Mandatory dismissals: Schools would be required to close a formal complaint that does not state a prima facie instance of sexual harassment as defined in §106.30 or is otherwise outside the scope of Title IX.
- Content of Notice: Notices to accused parties would need to contain “sufficient details” including “the identities of the parties involved in the incident, if known, the specific section of the recipient’s policy allegedly violated, the conduct allegedly constituting sexual harassment under this part and under the recipient’s policy, and the date and location of the alleged incident, if known.”
- Standard of proof: Schools would be permitted to use the clear and convincing standard for sexual harassment cases. Schools could not have a different standard for students and faculty.
- Live hearings: Live hearings would be required for resolution of formal complaints.
- Cross-examination: Parties’ respective support person/advisor would be allowed to cross examine the other party and their witnesses; testimony of persons who refuse to submit to cross-examination would need to be excluded; schools would be required to provide an advisor for purposes of cross-examination if a party does not have one.
- Informal resolution: Permitted for any type of case; still requires consent from both parties; can only occur after written notice of allegations to the accused.
On January 23, 2019, the Pro Humanitate Institute will host a regulation “hack-a-thon” at 5:00 p.m. in Benson 410. Students, faculty, and staff are encouraged to learn more about the proposed changes and develop a response for the public comment period. Campus experts from the Title IX Office will be available to answer questions.
A public comment/submission can express simple support or dissent for a regulatory action. However, a constructive, information-rich comment that clearly communicates and supports its claims is more likely to have an impact on regulatory decision making.
A few tips for developing a public comment:
- Comment periods close at 11:59 eastern time on January 28, 2019.
- Clearly identify the issues within the regulatory action on which you are commenting.
- If you are commenting on a particular word, phrase or sentence, provide the page number, column, and paragraph citation from the federal register document.
- If you choose to comment on the comments of others, identify such comments using their comment ID’s before you respond to them.
- If you disagree with a proposed action, suggest an alternative and include an explanation of how the alternative might meet the same objective or be more effective.
- Refer to specific page numbers, columns and paragraph citations from the federal register document.
- Agency reviewers look for sound reasoning in the comments they receive. Whenever possible, support your comment(s) with references to data, facts, and/or expert opinions. You may also refer to your personal experiences.
- Consider including examples of how the proposed rule would impact you negatively or positively.