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Raise your Voice: Responding to the Upcoming Notice and Comment Period on Title IX Federal Guidance

April 5, 2018

During the month of April, the Department of Education (ED) is expected to put out a call for comment corresponding with a Notice of Proposed Rulemaking (NPRM) regarding Title IX, a provision in the Education Amendments of 1972 banning sex discrimination in schools supported by federal dollars. NASPA will be holding a number of listening sessions involving a diverse range of constituent groups and accepting written comments from NASPA members through April 20, 2018 to be able to respond to the expected proposed rule in a way that is representative of NASPA membership.

This post offers background on the evolution of Title IX guidance, building from NASPA’s October 2017 blogpost on the rulemaking process, to explain what the notice and comment period means for student affairs professionals, and why it is important for student affairs professionals and institutions of higher education to add your voice during the call for comment period.

Title IX: A History of Regulatory Guidance

Title IX as it pertains to institutional responsibilities to respond to and address sexual misconduct has undergone a number of interpretations which have expanded the protections it provides for students over time. The first major reinterpretation of Title IX occurred in 1992 in Franklin v. Gwinnet County Public Schools when the Supreme Court expanded Title IX protections to include sexually assault, and specifically rape as a form of sex discrimination. The case brought an increased focus on campus sexual assault prevention from advocacy groups, policymakers and the media nationwide. In 2001, the Office for Civil Rights (OCR), an administrative office under ED, released guidance on what constitutes sexual harassment under the law and specified how the Department expects institutions to respond.

The Obama Administration, under the direction of Vice President Joe Biden , further expanded guidance on Title IX to address institutional responsibilities to respond to accusations of sexual assault or harassment. “We are the first administration to make it clear that sexual assault is not just a crime, it can be a violation of [an individual’s] rights,” Biden stated upon the release of the 2011 Dear Colleague Letter (DCL) which included sexual violence in the definition of sexual harassment under Title IX. OCR also created a detailed Question and Answer document (Q&A) in 2014 to more clearly explain institutional responsibilities under Title IX in adjudicating instances of alleged sexual misconduct. The expanded Title IX guidance, along with the update to the Jeanne Clery Disclosure of Campus Safety Policy and Campus Crimes Statistics Act (the “Clery Act”) and the corresponding administrative push on campus sexual violence awareness, resulted in noticeable changes in higher education institutional policies across the country. 

The legal requirements of the 2011 DCL and Clery Act made institutions responsible for playing multiple roles regarding campus sexual violence, from prevention efforts to investigation and adjudication of alleged incidents of sexual misconduct. In her 2014 essay “Only Yes Means Yes: An Essay on University Policies regarding Sexual Violence and Sexual Assault,” President of the University of California System, Janet Napolitano, explained some of the hurdles institutions faced at the time. She noted that while the guidance emphasized the rights of survivors, certain provisions seemed to simultaneously undermine survivors’ rights; that the shift to a preponderance of evidence standard of proof created concerns regarding respondent rights; and that campus investigators may struggle with a lack of resources and tools to meet regulatory guidance.

When the Trump administration began, Secretary of Education, Betsy DeVos indicated that OCR would rectify some of these concerns. In September 2017, Secretary DeVos, rescinded the 2011 and 2014 guidance, and released a new Q&A as interim guidance. This interim guidance removed the requirement for institutions to use the preponderance of evidence standard as the appropriate standard of proof for investigating allegations of sexual violence; removed the timeframe from Title IX investigation proceedings; allowed an appeals process by both parties or accused students only; and created an “informal resolution” option. In removing requirements previously in place that were more restrictive, the interim guidance gave institutions more flexibility in how to conduct their Title IX proceedings. The interim guidance does not address concerns involving survivors’ rights or campus resources, including the role of law enforcement, and does not provide details on how institutions should operationalize any policy changes they choose to make.

The initial response to the interim guidance by campus administrators was largely to keep their current policies and practices in place and to carefully review current policy rather than make changes as the interim guidance allowed pending the release of an expected proposed final rule this spring. NASPA expects that the proposed final rule will closely follow the interim guidance and is holding listening sessions with our members to share any concerns the interim guidance raises for their institutions.

Notice and Comment Period: What it is and Why Student Affairs Professionals Should Participate

When the September 2017 interim guidance was released, ED indicated a full Notice of Proposed Rulemaking (NPRM) on a final proposed rule related to Title IX would be forthcoming; we are quickly approaching the first step in that process, the notice and comment period.  Administrative agencies, like ED, are responsible for releasing guidance and interpretation on how legislation will be implemented. Agencies are able to establish guidance through rulemaking and enforce compliance through the adjudication of rule-breakers. Rules and regulations issued by Executive agencies have the effect of law, and are released as federal regulatory and sub-regulatory guidance. As described in the October 2017 NASPA blogpost, sub-regulatory guidance, like the 2011 DCL and September 2017 interim guidance on Title IX, are not subject to the public comment process that full federal regulatory guidance is held to. Therefore, these documents did not undergo an open call for comment for the general public to weigh in. 

Both the rescinded 2011 DCL and the interim guidance fall under part 106 of the Code of Federal Regulations (CFR) under Title IX, which governs nondiscrimination on the basis of sex in educational programs. This umbrella regulation has not seen significant regulatory reform in a while, and given the change in campus climate and approach to these matters, it’s important for NASPA membership, including those who are responsible for supporting students and administering sexual misconduct prevention and response programming, to take part in providing comments in response to the upcoming NPRM. Let’s now consider what the upcoming notice and comment period will look like.

First, ED will issue a proposed rule (the NRPM), which will be made available to the public through the Federal Register and regulations.gov. The issuing of the rule will correspond with a call for comment, in which individuals, government officials, organizations, and associations can send comments for a given period of time, usually between 30 and 90 days. NASPA expects the call for comment on this particular NPRM to be closer to 30 days. Once the comment period has concluded, ED will review all comments they receive before publishing a final rule along with responses to any comments of significance and outlining any substantial revisions that have been made to the rule as a result of comments submitted. Once the final rule is released it will not be enforceable until its effective date, which will be listed publically, to allow room for institutions to make any necessary changes to ensure compliance.

The short window for submitting public comments is where NASPA members have a chance to participate in the formation of the new regulatory guidance. Since ED is obligated to respond to comments of significance, it’s especially important to consider the unique ways in which various sectors of the higher education community will be impacted. Detailed comments, including, de-identified case examples from institutions, data and evidence of programmatic impact, and alternative solutions, will help illustrate the ways in which institutions are likely to be affected by the new guidance, and shape revisions in support of the student affairs perspective. Student affairs professionals represent all facets of Title IX on campus.  As mentioned above, If ED decides not to make substantive revisions as suggested, the Department is required to explain why.

This call for comment period is a crucial chance for both NASPA as an association, and individual members to consider policy impacts from both an administrative and a student-centered approach and relay this important information to ED. Over the next few weeks, NASPA is holding a number of listening sessions to gather comments from members. Because space is limited in the listening sessions to ensure participants have an opportunity to contribute, NASPA is also accepting written feedback from members who are unable to attend these sessions. General listening sessions will be held: April 9 at 9 a.m. ET and 1 p.m. ET, April 12 at 4 p.m. ET, and April 19 at 4pm ET, please sign up today! The listening sessions and feedback will be used to inform any comments NASPA submits in response to the NPRM, but no institution or individual will be identified either as having participated in the listening sessions or as having contributed particular thoughts or ideas. Following the listening sessions and after the release of the proposed rule, NASPA will hold a membership-wide follow-up session, currently scheduled for April 26, 2018 at 3 p.m. ET, to discuss the outcomes from the listening sessions and share more information with our members about how they can submit comments individually or on behalf of their institution to the NPRM. Comments from individuals and institutions are very important to help ED understand the breadth and depth of institutional programming and consideration to sexual misconduct, as well as to more fully paint the picture of the diversity of our students and campus settings and how those factors influence sexual misconduct proceedings. NASPA will help connect student affairs professionals to the NPRM upon its release so that individuals are able to consider the proposed rule and submit individual comments.