In fall 2017, Education Secretary Betsy DeVos rescinded Obama era Title IX guidance. Shortly after, she issued interim guidelines in advance of a formal notice-and-comment process to rewrite federal rules. This post is intended to get you up to speed on how to elevate student voice as education officials decide the future of Title IX enforcement.
Background on Title IX
Title IX is a hugely consequential gender equity education law enacted in 1972. It is intended to protect students from sex discrimination. For a long time, it was closely associated with equal opportunity to participate in athletics. The courts have ruled that sexual assault and harassment are also forms of sex discrimination, obligating schools to take responsibility for preventing and quickly addressing any such issues on campus. The U.S. Department of Education’s Office for Civil Rights (OCR) is responsible for enforcing Title IX policy.
Under Presidents George W. Bush and Barack Obama, the Department of Education established guidance for how colleges should implement Title IX, clarifying the Department’s enforcement role. The best-known guidance came in 2011 in a “Dear Colleague Letter” (DCL) that detailed how the Department interpreted schools’ obligations under Title IX, enforce the policies, and support schools’ policy implementation.
What was in the interim guidelines?
The interim guidelines generally weaken students’ rights by giving colleges the option to deviate from well-researched best practices that were enforced under the Obama era guidance. Perhaps most notable is that they promote myths that (1) false accusations are rampant and (2) complainants and respondents have unequal rights in Title IX hearings under previous rules.
What is notice-and-comment?
When Congress passes a law, federal agencies are often left to interpret any ambiguity and determine policies to implement and enforce the law. When any policies are to be established as legally binding regulation, they undergo a rulemaking process. Most agencies use notice-and-comment as their rule-making process. Basically, the agency issues a proposed version of the regulation, provides the public time to comment on the proposed regulation, then issues a final version based on the comments.
It must be a publicly accountable process. For example, say the Department proposed a rule requiring every student wear orange shoelaces, and 100,000 comments come in opposing that rule while 5,000 come in supporting that rule. If the Department’s final rule still had the orange shoelace policy included, it would have to substantively justify why it went against the public’s comments and may still be subject to legal action for not being responsive.
We expect the Department of Education to release its proposed Title IX rules soon, prompting a comment period.
What can you do?
Since there is no proposed rule yet, there is nothing to react to. We recommend the following actions in advance of the notice-and-comment process:
Submit a memo to NCLC responding to our recent Request for Information on Title IX. It will be a good way to collect and summarize what is important about Title IX on your campus.
Plan a week of action for Sexual Assault Awareness Month (April), educating your campus about the importance of Title IX as a gender equity law.
Identify leaders on your campus who can help champion the comment period when it starts so your campus’ student perspectives are considered during the process.