Sex Discrimination • Et. Seq: The Harvard Law School Library Blog

Administrative Law Research: The Department of Education’s Proposed Title IX Rule

On November 16, 2018, a press release was issued by the U.S. Department of Education announcing a proposed new rule related to Title IX.  The press release includes links to the proposed rule in its entirety, as well as a one-page summary and a section-by-section summary.

Title IX is a federal law under which sex-based discrimination is prohibited in educational institutions that receive federal funding.  This law is codified under 20 U.S.C. §§ 1681-1688.  Any federal agency that “extend(s) Federal financial assistance to any education program or activity” is authorized to promulgate rues and regulations related to Title IX enforcement (20 U.S.C. § 1682).

The new rule has been crafted to incorporate what the Department of Education views as additional due process and fairness protections for parties who are involved in Title IX complaints in schools.  These include the introduction of hearings in which people who testify can be subject to cross-examination.  It also seeks to clarify the definition of sexual harassment in a Title IX context, and to specify when a school is and is not required to investigate alleged incidents of sexual harassment.

The federal Administrative Procedure Act requires, with certain exceptions, that federal agencies use a notice and comment rulemaking process when creating new federal rules and regulations.  This section of that federal statute has been codified at 5 U.S.C. § 553.  In accordance with this requirement, the Department of Education issued a notice in the Federal Register of its intent to promulgate its new Title IX rule, and invited the public to make comments on it.  This notice was published on November 29, 2018, and can be found at 83 Fed. Reg. 61432.

The online venue for submitting public comments for many federal regulations is the government’s regulations.gov website.  Since this proposed rule was posted to this site, under the document number ED-2018-OCR-0064-0001, there have been nearly 100,000 comments submitted.  Today, on the final day of the comment period, three members of the Harvard Law School faculty, Professor Jeannie Suk Gersen, Judge Nancy Gertner, and Professor Janet Halley added their voices to this conversation, and submitted a detailed comment on the proposed rule.  They have made this comment available for public view at https://perma.cc/3F9K-PZSB.

In their comment, these faculty members, “who have researched, taught, and written, on Title IX, sexual harassment, sexual assault, and feminist legal reform,” outline the aspects of the proposed rule with which they agree and those with which they disagree.  Among their concerns are the proposed cross-examination mechanism for Title IX hearings.  They also object the proposed rule’s definition of the “deliberate indifference” standard used to determine a school’s legal obligation to respond to sexual harassment.  Additionally, they believe that the rule should mandate that sexual harassment claim inquiries focus on the “threat of harm” and consider the interests of both complainants and respondents.

As they mentioned, all three authors of this comment have written on the topic before.  Professor Halley published a 2015 article about Title IX in the Harvard Law Review Forum, Trading the Megaphone for the Gavel in Title IX EnforcementProfessor Suk Gersen published “Betsy DeVos, Title IX, and the ‘Both Sides’ Approach to Sexual Assault”  in the New Yorker in 2017.  A piece by Judge Gertner, “Sex, Lies and Justice: Can We Reconcile the Belated Attention to Rape on Campus with Due Process?” appeared in the American Prospect in 2015.

The collections of the Harvard Library include a number of books and journals about topics related to Title IX, such gender discrimination in educational settings (HOLLIS library catalog search) and sexual harassment in educational settings (HOLLIS library catalog search).  For more information about the notice and comment rulemaking process, run this HOLLIS library catalog search to view a list of books that discuss the Administrative Procedure Act.

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