Don’t Let DeVos Gut Title IX

Deadline for public comments: January 28, 2019 – 

Secretary of Education Betsy DeVos has proposed regulations that would modify the implementation of Title IX, which prohibits discrimination on the basis of sex in federally funded education programs. Well, let’s call it what it is – Betsy DeVos has proposed a scheme to destroy an important part of Title IX. We have a chance to say NO.

The proposed regs, which have the outrageously misleading title “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance” would gut Obama-era Title IX guidance for how schools address sexual violence. Among other changes, DeVos’s proposed regulations would specify how institutions covered by Title IX must respond to sexual harassment incidents, and would also revise the availability of remedies for violations. Hint: all the changes remove protections for women …

You have until Monday January 28 to protest the proposed changes by submitting a public comment. Go to this link and click the “COMMENT NOW” button in the upper right. If that doesn’t work, go to www.regulations.gov and click on “Nondiscrimination on the Basis of Sex…” under “What’s Trending” and follow the instructions to submit a comment. Be sure to reference Docket ID No. Docket ID ED-2018-OCR-0064. See below for suggested language and alternative methods to submit comments.

What to write:

Here are some suggested comments (personalize the language because copied & pasted comments or overly similar comments may be grouped together and not counted separately). Several of these are adapted from the Equal Rights Advocates’ excellent comment guide. Submit your comments by the end of day January 28:

My name is _____ and I am [fill in relevant identifying info, if appropriate – such as teacher, student, advocate, sexual assault survivor, etc.] I am writing in reference to Docket ID ED-2018-OCR-0064.

I oppose the proposed regulations for the following reasons:

• General:
  • They would allow schools to refuse to investigate online sexual harassment.
  • They provide for dramatically reduced liability for schools, allowing them to turn a blind eye to sexual assault or harassment and shielding them from responsibility if they ignore or cover up sexual misconduct.
  • They would drastically reduce the number of school employees responsible for addressing or reporting sexual harassment.
  • They would encourage schools to reinstate an antiquated mediation process rather than investigating.
  • They would narrow the definition of sexual harassment, requiring schools to investigate only the most “serious forms of harassment and assault,” and only act when the sexual violence or harassment completely denies a student access to education, forcing students to endure repeated and escalating levels of abuse without being able to ask their schools for help.
• Duty to Report:
  • I am concerned about how the proposed regulations narrow which school employees are required to act on reports of sexual harassment and misconduct in higher education settings (§§ 106.44(a), 106.30), as well as the regulations’ requirement of schools to dismiss reports of sexual violence that happen between students off campus (§§ 106.30, 106.45(b)(3)).
  • These rules would not balance the scales of justice between student complainants and student respondents, but would rather result in students’ reports and complaints being dismissed or ignored, which will very likely decrease reporting overall.
• Burden of Proof:
  • Proposed regulation 106.45(b)(4)(i) requires schools to apply the higher standard of evidence to Title IX cases – Clear and Convincing Evidence. Application of this standard of evidence is inequitable and impractical, and contradicts decades of legal practice.
  •  The Department fails to consider and address the grave consequences to the victim of sexual assault when compared to other crimes. It is unfair for the Department to apply a higher standard of evidence based on its conclusion that the consequences to the respondent are “grave” without consideration of the grave consequences to the victim, whom the provisions of Title IX were designed to protect.
  • Application of this higher standard is impractical and seems intentionally designed to reduce the overall number of findings of sexual assault.
• Deadline for comment period:
  • Please extend the comment period for these regulations for a minimum of 60 days beyond the currently scheduled public comment deadline. The proposed 60-day comment period is insufficient to receive meaningful public participation in the rulemaking process.
  • Please schedule public hearings at schools and colleges campuses throughout the country to encourage additional input from students, teachers, administrators, and advocates.

For more information, read the Equal Rights Advocates’ article. Also, this letter from the National Women’s Law Center, joined by more than 100 groups and 200 individuals, points out that the proposed changes are extensive and far-reaching and would drastically alter students’ rights and affect almost every aspect of schools’ obligations to respond to sexual harassment against students, and requests that the Department of Education extend the brief comment period.

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