Title IX Proposed Rule Making Tips For Comment

Proposed Rule Making Tips For Comment

PUBLIC COMMENT PERIOD OPEN FOR PROPOSED CHANGES TO TITLE IX RULES REGARDING CAMPUS RESPONSE TO SEXUAL HARASSMENT AND ASSAULT

The Office for Civil Rights (OCR) of the Department of Education recently issued a Notice of Proposed Rulemaking to amend regulations implementing Title IX of the Education Amendments of 1972 (Title IX).  Title IX states that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

Rulemaking is a process a government agency (the U.S. Department of Education, in this case) follows in order to issue or revise regulations (often referred to as “rules”) to implement law.  An agency first issues proposed regulations and invites the public to comment on those proposals.  The agency considers the comments in determining what the final regulations should be; although it need not adopt the public’s comments and input, it must address the comments in the rulemaking process.  Once the regulations become final, an educational institution must comply with them.  Schools can (and most do) choose to do more, so long as that “more” does not conflict with the regulations.

Since these rules have only been proposed at this juncture, there is no change to current University of Dayton policy and process.  That is, the University’s Nondiscrimination and Anti-Harassment Policy, Mandatory Reporting Policy and Resolution Process remain unchanged at this point.

The Notice of Proposed Rulemaking can be found on the Federal Register government website at: https://www.federalregister.gov/documents/2018/11/29/2018-25314/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal. The beginning of the document explains the agency’s rationale for the proposed changes, and the actual text of the proposed regulations is toward the end of that document.  The proposed rules are in this pdf: https://www.gpo.gov/fdsys/pkg/FR-2018-11-29/pdf/2018-25314.pdf, which can also be accessed from the federal register webpage.

Several proposed changes to the regulations are making headlines in the media:

  • Proposed definitions of “Actual Knowledge” and “Sexual Harassment”
  • Proposed rules would not require universities to respond (and may prohibit some response) “if the conduct did not occur within the recipient’s program or activity.”
  • Proposed rules would allow schools to use a standard of “clear and convincing evidence” or “preponderance of the evidence” (more likely than not), requiring that the same standard be used for students as is used for faculty/staff misconduct.
  • Proposed rules would require a formal (disciplinary) investigation process to include a “live hearing” that allows for cross examination that “must be conducted by the party’s advisor of choice” (meaning, attorneys could be conducting the cross-examination).
  • Proposed rules would allow a school to “facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication,” if parties voluntarily participate.

The University currently is preparing its own set of comments in response to the Notice of Proposed Rulemaking and will submit them before the January 28, 2019 deadline.

Any individual or group can choose to submit comments on these proposed regulations by the January 28th deadline.  Information about how to submit comments is in the rulemaking document under the “addresses” section in the Rulemaking document (the Federal Register link above).

More information about federal rulemaking can be found here:

https://www.naspa.org/rpi/posts/raise-your-voice-responding-to-the-upcoming-notice-and-comment-period-on-ti

https://www.naspa.org/rpi/posts/the-rule-making-process-differences-in-federal-regulatory-and-sub-regulator

Federal guidance has been offered regarding how to provide effective comments.

https://www.regulations.gov/docs/Tips_For_Submitting_Effective_Comments.pdf

A few key points from this document:

  • Although public support or opposition may help guide important public policies, agencies make determinations for a proposed action based on sound reasoning and scientific evidence rather than a majority of votes. A single, well-supported comment may carry more weight than a thousand form letters.
  • 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.
  • The comment process is not a vote. The government is attempting to formulate the best policy, so when crafting a comment it is important that you adequately explain the reasoning behind your position.
  • Although agencies receive and appreciate all comments, constructive comments (either positive or negative) are the most likely to have an influence.

If you have any questions regarding the University’s policies and procedures regarding Title IX, please contact the Equity Compliance Office at 937-229-3622.

CONTACT

Equity Compliance Office - Room 300

St. Mary's Hall
300 College Park
Dayton, Ohio 45469 - 1641
937-229-3622
Email