The year-long anticipatory phase has ended–the Department of Education (ED) has now released the proposed Title IX regulations that would replace the interim guidance enacted in September 2017, when DeVos’s administration rescinded the Obama-era 2011 Dear Colleague Letter and the 2014 Q & A guidance documents. With the release of these draft rules, ED will begin a formal rulemaking process to amend existing Title IX regulations and add new regulations establishing substantive and procedural requirements for campuses to follow in responding to sexual harassment complaints.
Key Proposed Changes in the Draft Rules Include:*
- Defining sexual harassment and actual knowledge as it relates to whether an institution has been put on notice regarding incidents of possible sexual harassment (p.19);
- Delimiting the responsibility of schools to respond to sexual harassment only if it is “conduct that occurs within its ‘education program or activity’” (p. 25);
- Adopting a deliberate indifference standard when determining whether institutions have appropriately responded to reports of sexual harassment, noting that “institutions are deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of the known circumstances” (p. 31);
- Requiring a live hearing in conduct processes, with the ability for the respondent and complainant to cross-examine each other and other witnesses through their respective advisors–including credibility challenges–and also require institutions to provide advisors (p. 53);
- Allowing schools to adopt a “clear and convincing” evidentiary standard or continue addressing sexual harassment under the “preponderance of the evidence” standard (p. 61).
*Italics added for emphasis.
Notice & Comment: Including Your Voice in the Rulemaking Process
After publication in the Federal Register, the next step in the rulemaking process is to begin accepting public comments on these proposed rules–a process known as “notice and comment.” “So what, exactly, is notice and comment?”
In short, it is a common rulemaking process which may begin with publishing an “Advance Notice of Proposed Rulemaking” in the Federal Register to announce an upcoming notice-and-comment process. The Department of Education also initiates a negotiated rulemaking proceeding when required by federal law by inviting significantly affected stakeholders to meetings where they try to reach consensus on a proposed rule.
After the Advance Notice of Proposed Rulemaking process, the next step would be for the Department to publish a Notice of Proposed Rulemaking (NPRM) in the Federal Register to give the public an opportunity to comment on the proposed rule created through the rulemaking procedure. After these final comments are received and considered, the Department issues its final rule which then becomes federal regulation.
Comments will be due 60 days after the proposed rules have been published in the Federal Register. EVERFI will provide an update when the rules are published.
Why Participate in Notice & Comment?
We believe this rulemaking process offers a critical opportunity for campus practitioners, administrators, faculty and other staff to share their opinions, knowledge, and experience. Importantly, it is also a way to channel student activism and energy into effective civic engagement by supporting their participation in the notice and comment process. What is powerful about the comment process is that the department must read, summarize, and identify how their new draft or final proposed rules takes into account all comments that are offered.
How Campuses can Support Student Engagement in the Rulemaking Process
It’s likely that some students or student organizations on your campus are closely following and monitoring these proposed changes. Here are a few ways you can support students in your community and facilitate their engagement in the Notice and Comment process:
- Share information about the notice and comment process, and provide guidance on how to craft effective comments;
- Tap faculty or staff subject matter experts to explain the proposed changes and navigate the sometimes dense legal language of the proposed rules so that students understand both the content and the context of the proposed changes;
- Host forums or other public events to engage the broader campus community in discussion of the changes; share this campus-specific feedback as a part of any institutional comments or remarks that are delivered through professional associations or lobbying groups.
Tips for Students Submitting Written Comments:
Comments may be submitted through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery.
If you mail or deliver your comments about these proposed regulations, address them to Brittany Bull, U.S. Department of Education, 400 Maryland Avenue S.W., Room 6E310, Washington, D.C. 20202. Telephone: (202) 453-7100
ED encourages commenters to submit using a print-to-PDF format which will allow the Department to electronically search and copy certain portions of the submissions. ED also encourages commenters to “identify clearly the specific section or sections of the proposed regulations that each of your comments addresses, and arrange your comments in the same order as the proposed regulations.”
Commenters need not weigh in on all aspects of the proposed rules. It is perfectly acceptable, and can even be more effective, to focus on the specific section where the student has the most relevant information or experience to share. Let students know that all comments will be publicly available, they should consider this carefully when crafting their comments.
Like most persuasive writing, effective public comments are succinct, specific, and–when possible–solutions-oriented. The commenter(s) should briefly introduce themselves and identify what section or sections of the proposed rules they are commenting on and why the proposed rules matter to them. If students choose to use a template, they’ll need to customize it if they want their comments to stand out from the masses.
Encourage students to adopt a professional and respectful tone in crafting the comments, even if they vigorously disagree with the draft rules, and provide citations if students include research or data in their comments. Lastly, remind students that the deadline matters. The most powerful and carefully crafted comment does no good if it arrives past the due date.
Let’s get started.