The comment period has closed on the Department of Education’s (“Department”) proposed Title IX rule. The Department received more than 200,000 comments. The Department has not indicated an anticipated timeline for finalizing the rule. The Title IX rule proposed and published under the previous administration reportedly received about half as many comments. That rule was proposed in November of 2018, received comments until February 2019, was published as final in May 2020, and took effect August 2020. Given the number of comments to the new proposed rule and the number of issues being addressed in the comments, it could be quite a while before a new final rule takes effect.
The proposed rule would make significant changes to Title IX investigations and procedures, but it also includes other divisive changes. One change that has drawn a lot of attention is the proposed rule’s clarification that Title IX’s protections against sex-based discrimination include discrimination based on sexual orientation and gender identity. The proposed rule would also provide protections for pregnancy and pregnancy-related conditions.
Individual schools, including the University of Washington submitted comments. Education associations such as the American Association of University Professors and the American Council on Education (“ACE”), whose comment was also on behalf of a number of other organizations, submitted comments. The American Civil Liberties Union (“ACLU”) and The Leadership Conference on Civil and Human Rights, joined by a number of other organizations, also provided comments.
The University of Washington expressed concern with the mandatory reporting requirement in the proposed rule, which requires non-confidential employees with responsibility for administrative leadership or advising to report to the Title IX Coordinator when they have information a student is being subjected to conduct that may be sex discrimination. The University of Washington also commented that some portions of the rule were unclear and needed clarification or revision.
In its comment, ACE recommended the Department set an effective date that would allow schools to implement the changes. ACE also pointed to the frequent changes to the rules recently and recommended the Department specify that the procedural requirements in effect on the date the complaint is made and the substantive rules in effect at the time of the alleged misconduct should apply. ACE supported the removal of the live hearing requirement .
The ACLU’s comment supported a number of the changes made by the rule, including the inclusion of sexual identity and sexual orientation as a basis for sex-based discrimination. The organization also pointed out, however, that the proposed rule would deny students procedural protections. The organization stated it supports the requirement for a live hearing and opportunity for cross-examination. The ACLU also opposed the use of a single person as both investigator and decision-maker. The comment recommended the rule be changed to prohibit a student from using an advisor in a Title IX proceeding who exercises academic authority over the other student. The ACLU also recommended the school provide a lawyer to either party for the hearing.
With the large number of comments addressing a broad range of issues in the proposed rule, it will likely take the Department some time to review them, address the issues, and prepare a final rule. In the meantime, schools may be confused about what procedures they are required to follow. If you have been accused of a Title IX violation, a skilled Washington Title IX defense attorney can advise you on the process and fight to protect your rights. Schedule a consultation with Blair & Kim, PLLC, by calling (206) 622-6562.