ACLU Comment on Department of Education’s Final Title IX Rule on Sexual Harassment

NEW YORK — The U.S. Department of Education issued a final rule governing schools’ obligations to investigate sexual harassment or assault complaints under Title IX.

Louise Melling, ACLU deputy legal director, had the following reaction:

“The ACLU is equally committed to ensuring schools are doing everything in their power to safeguard students from sexual harassment and violence and ensuring fair process in school disciplinary proceedings. While the rule includes important provisions that promote fair process, it falls short in protecting students’ access to education.

“Title IX was adopted to ensure that no student, whether in grade school, high school, or university, would be denied or limited educational opportunities because of sex. The DeVos rule thwarts that aim by dramatically reducing schools’ obligations to address sexual harassment and assault. By adopting a rule that subjects sexual harassment to different standards than other forms of harassment, the Trump administration is doing exactly what Title IX prohibits — discriminating on the basis of sex. We say once again to the Trump administration: See you in court.”

The ACLU opposes the provisions in the regulation that:

• Impose an unduly narrow definition of sexual harassment, one narrower than that used for racial harassment
• Allow colleges and universities to not investigate complaints of incidents that they reasonably should have known about
• Relieve schools of the obligation to investigate many instances of student-on-student harassment or assaults that occur off campus, even where they have continuing effects on campus
• Allow schools to adopt unreasonable responses to complaints and holding them responsible only if their actions are “deliberately indifferent”
• Allow schools to apply a clear and convincing evidence standard of proof

The ACLU supports procedural protections in school disciplinary hearings, including those that:

• Require a live hearing and an opportunity for cross-examination in the university setting
• Provide the opportunity to delay Title IX proceedings in the face of an imminent or ongoing criminal investigation or prosecution
• Provide both parties the right of access to evidence from the investigation
• Provide the right to written decisions carefully addressing the evidence

In comments submitted to the Department of Education in January 2019, the ACLU proposed that the agency modify the regulatory provisions on procedural protections. Some of the recommendations included that:

• All live hearings should be presided over by a lawyer
• The school should offer a lawyer to either party upon request
• The representative for a student in the hearing should not be someone who exercises academic or professional authority over the other party
• Schools should be required to delay their hearings upon request if a student faces imminent criminal investigations or proceedings, while at the same time providing interim measures to the complainant during any delay
• Schools should not provide parties with access to evidence that is irrelevant or privileged under the law

The ACLU’s January 2019 comments are available here: https://www.aclu.org/letter/aclu-comments-title-ix-proposed-rule.