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January 25, 2019

Let Your Voice be Heard: Guide to Submitting a Public Comment for the Title IX New Proposed Rules

By Sarah Pesi, VP of External Affairs AY18-19

The Education Department released a proposed overhaul of the regulations surrounding Title IX on November 29th, 2018. The regulations are up for public comment until January 28th 2019 at 11:59pm.  To submit a comment and view the regulations go here.

In response, to the overhaul of Title IX protections the Graduate Student Assembly hosted three public comment events earlier this week. The three public comment opportunities were on January 21 in the Graduate Student Lounge from 12-1:30pm,  January 22 in the Heinz Rotunda from 12-1:30pm, and January 23 in the Center for Student Diversity and Inclusion from 5-7pm. The purpose of these events were to educate students about the changes and help them submit their own public comment. Additionally, the Graduate Student Assembly has submitted our own official public comment.

The purpose of this blog is to educate individuals who were unable to make the event about the proposed changes and how to make a public comment of their own.

What is Title IX?

Title IX was passed into law in 1972 and prohibits discrimination based on sex by any educational institution that receives federal funds. Some key issue areas in which recipients have Title IX obligations are around recruitments, admissions, athletics, employment, treatment of students/employees who are pregnant or parents. The new proposed rules are specifically related to sexual harassment and misconduct. Throughout the years, the Office of Civil Rights in the Department of Education was tasked with enforcing has released various changing regulations and guidance around enforcing and carrying out Title IX.  The most recent guidance was the 2011 Dear Colleague Letter later rescinded in favor of temporary guidance under the new administration.

What is a Public Comment and Why Does it Matter ?

A Notice of Proposed Rulemaking along with public comments form the basis of the final rule. Public comment are not affected by how many comments are submitted in support or opposition to the regulation. The agency final rule must be based on facts and data. This is why citations and questions of policy effectiveness can make a successful comment more than just stating an opposition of support not backed by a fact or example. If a possible inefficiency or counterfactual is presented the final rule may be altered based on the public comment. For more information on how to submit a public comment for Title IX visit this document.

Summary of Key Changes Being Proposed

  1. Sexual Misconduct Standards

    1. Limit of scope of what schools are obligated to investigate. Dear Colleague letter covered more than sexual harassment as narrowly defined in the regulations and sexual assault

    2. Sexual Harassment definition stricter and more narrow- limits abilities for schools to address off campus and online harassment

    3. Requires denial of education for action to be taken

  2. Reduce Liability of Schools to Address Sexual Misconduct

    1. Changes what constitutes notice from constructive notice to actual notice

    2. Limits who you can report that actually requires action and requires a formal complaint for action

    3. Changed liability from did the school respond reasonably to deliberate indifference/ clearly unreasonable which is harder to prove.

    4. Safe Harbor Measures to protect schools against liability

  3. Grievance Procedures

    1. Get rid of time limits on investigations which used to be 60 days

    2. Requires live cross examination with advisor of your choice instead of questions going through an adjudicator

    3. Requires electronic access to all evidence

    4. Requires training and has directed question on what should be included in the training

    5. Standard of Evidence is being raised from preponderance of evidence to clear and convincing.

Additional Resources to Help You Draft Your Public Comment  

Looking for additional resources or resources from the tables and events this week check out the links below for further analysis, sample comments, relevant data, etc… The bolded sources are the most recommended.

Data Guides

Outside Resources and Analysis

Sample Comments

General Resources for Public Comments