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Education Dive
Ed Dept.'s Title IX proposal gets 100K
public comments
Hallie Busta
Feb. 1, 2019
Dive Brief:
The public comment period for the Education Department’s proposed Title
IX overhaul closed Wednesday night, with more than 100,000 comments
filed since the draft rules were posted on Nov. 29.
While the department has said the rewrite intends to give colleges more
structure around how they are expected to respond to sexual misconduct
allegations involving their campus community, critics say they remove
too much accountability and in some cases are unclear.
The bevy of comments varies in sentiment, with NPR reporting that those
submitted online tend to oppose the proposal. That could in part be due
to grassroots efforts by activist groups opposing the proposal to
encourage people to comment.
Dive Insight:
The proposed Title IX rewrite is "the most controversial regulatory
undertaking" in the federal agency's history, Terry Hartle, senior vice
president at the American Council on Education, told The Washington
Post this week.
And it comes amid a growing focus on accountability around how colleges
and universities address allegations of sexual misconduct within their
campus communities. While some say Obama-era Title IX guidance was too
broad and constituted a federal overreach, not all higher ed leaders
agree with the current administration’s approach.
In a 33-page comment, lobbying group ACE pushed back on several areas
of the proposal that seeks to govern the way in which colleges must
respond to sexual misconduct allegations, such as through live hearings
that include cross-examinations.
"Colleges and universities are not law enforcement agencies or courts,"
the group said, adding that the proposal "relies on formal legal
procedures and concepts" that are "wildly inappropriate and infeasible
in an educational setting." Several other universities have pushed back
on what some call "courtroom-like" processes.
Instead, ACE offers, colleges should be granted flexibility to address
each case individually.
The group also criticized the use of the term "due process" in a
college setting, saying "the type and amount of process required of
colleges in these settings is far less than the process due in a
criminal trial." ACE asked the Ed Department to replace the term "due
process" with "fair process" that it says "better captures the
evenhandedness and equitable treatment that the Department and
institutions both seek."
The comment also addresses questions over which cases colleges can
address under Title IX. The proposed rules say a formal complaint is
required to trigger Title IX grievance procedures, but ACE recommends
the Ed Department explicitly allow colleges to take action in cases in
which they've heard reports of sexual harassment but there are no
formal complaints.
ACE did note some areas that it said will help institutions address
sexual harassment. Among them, giving victims more flexible avenues for
addressing their claim and clarifying that colleges can remove a
respondent from campus if there is a health or safety threat. It also
applauded the removal of the 60-day window to address claims, saying it
will prevent colleges from writing off older complaints and allow them
to work better with law enforcement agencies.
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