In late November, the Department of Education published a proposed rule on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance and opened a 60-day public comment period. While the Federal Register is not fully operational during the shutdown, public comments on the Title IX Notice of Proposed Rulemaking (NPRM) are still due by January 28, and regulations.gov is functional and accepting comments.
NASPA staff have developed several resources intended to help higher education leaders learn about and respond to the proposed rule. Prior to the winter break, we held several information sessions (recordings are available in the NASPA Online Learning Community) and published a 4-part blog series providing a preliminary analysis of the proposed rule. Today we released a series of Resource Guides that expand on many of the topics we highlighted in December with links to research and data that individuals and institutions can use to bolster their comments as needed.
Aspects of the proposed rule that may reduce reporting
There are a few aspects of the proposed rule that are promising, including the continued right for both parties to appeal findings and clarity that institutions can provide supportive services to students regardless of whether a formal complaint is filed. However, there are many more that risk, individually and collectively, prompting a decline in reporting of campus sexual harassment incidents. Many of the aspects of the rule that might result in a decrease in reporting are covered in more depth in other NASPA Title IX Resource Guides but a summary of the issues particularly as they may affect reporting rates is provided in the NASPA Title IX Resource Guide: Aspects of the proposed rule that may reduce reporting.
Changes to the religious exemption process
The proposed rule would change the process by which faith-based institutions could claim a religious exemption under Title IX. Institutions who request affirmation of a religious exemption are not required to uphold student civil rights under Title IX that violate their faith. For example, at an institution with a religious exemption, LGBTQ students who are sexually harassed by a person of their same sex may be disciplined for violating same-sex relationship policies if they report the incident. Given the high rates of sexual harassment among LGBTQ students, it is imperative that our institutions of higher education provide transparency about whether their rights will be protected should they enroll at a religiously-affiliated institution. Removal of the process for affirmation of religious exemptions leaves these students at best uninformed and at worst subject to intentional discrimination at the hands of institutions receiving millions of dollars of federal financial resources. The NASPA Title IX Resource Guide: Changes to the religious exemption process provides a history of the religious exemption to Title IX and summarizes the possible effects of changing the process.
The proposed rule oversteps the appropriate role of a federal agency in several ways. The Department relies on selective evidence in taking a stance that assumes institutions of higher education are not currently engaging in fair and equitable campus conduct processes as well as in extending Constitutional due process rights to campus conduct processes. Further, the Department attempts to intervene in campus personnel matters by setting requirements for who can be hired to fill certain campus-based roles. Finally, the Department challenges the historical nature of federalism by over-ruling state legislation governing campus-based sexual harassment procedures. These issues are discussed in more detail in the NASPA Title IX Resource Guide: Departmental over-reach.
Expectations for overly-legalistic processes
The proposed rule would create a more adversarial process for adjudication of campus sexual harassment conduct incidents, one that is repeatedly and intentionally conflated within the proposed rule with criminal justice processes. Campus conduct proceedings are not courts of law and the numerous expectations, both implicit and explicit, the Department places on campus administrative proceedings to behave as courts represents an over-reach. These aspects of the proposed rule that would lead to more adversarial campus conduct proceedings are explored more fully in the NASPA Title IX Resource Guide: Expectations for overly-legalistic processes.
Impact on institutional staffing and capacity
Aspects of the proposed rule raise concerns around institutional staffing and capacity for both large and small institutions. Changes to policies on campus indicating who is considered a responsible employee and the narrow definition of what constitutes “actual knowledge,” discussed in detail in the NASPA Title IX Resource Guide: Scope of institutional responsibility, are only part of the concern. These changes, combined with requirements for Title IX Coordinators to arrange for all supportive services for students, the number of individuals required to participate in the proposed formal grievance process, and the costs for training and retraining of students, faculty, and administrators are all additional areas of concern. To learn more, see the NASPA Title IX Resource Guide: Impact on institutional staffing and capacity.
One significant way the proposed rule differs from previous Title IX guidance is the allowance of informal resolution procedures to resolve sexual harassment cases. This was a welcome shift for some campus practitioners who recognize the value in less adversarial processes. According to the Association of American Universities campus climate survey report, 24% of victims surveyed listed social-related reasons for why they didn’t report, including “I did not want the person to get into trouble.” The inclusion of informal processes has been welcomed by some practitioners and viewed by others as the return to a time when victims could be pressured into less formal processes by well-intentioned campus administrators. A few of the more detailed concerns about informal resolution processes are outlined in the NASPA Title IX Resource Guide: Informal resolution.
One of the elements of the proposed rule that has received a warm welcome from some practitioners whose roles involve sexual harassment investigations is the elimination of a 60-day resolution timeline. The proposed rule does not include mention of a specific timeline for resolution of investigations, instead stating that institutions are to “designate reasonably prompt timeframes … that may be extended for good cause” (83 FR 61472 §106.45(b)(1)(v)). What was felt by some practitioners as an overly-stringent timeframe requirement for investigation and has been replaced by the complete lack of a timeframe, causing equal concern among campus administrators. Complicating matters, the Department has added two mandatory 10-day review periods to the formal investigation process and has potentially opened the door for additional delays related to scheduling advisors and any necessary witnesses for a live hearing. For more information, see the NASPA Title IX Resource Guide: Resolution timeline.
Scope of institutional responsibility
One of the primary ways that the proposed rule differs from previous guidance issued by the Department of Education’s Office for Civil Rights is the narrower definition of harassment prohibited under Title IX. There is a significant change in the scope of institutional responsibility to investigate allegations of sexual harassment within the new rule. The change to the standard by which institutions are considered to have actual knowledge of sexual misconduct has also been narrowed under the new rule, as has the responsibility for institutions to investigate and adjudicate misconduct that occurs outside of official programs and activities of the institution. These changes represent a substantial shift in the ways that institutions will be required to address sexual harassment involving students. To review these issues in more detail, please see the NASPA Title IX Resource Guide: Scope of institutional responsibility.
Accessing the Resource Guides
The NASPA Title IX Resource Guides are the guides are available through the NASPA Online Learning Community. You do not need to be a NASPA member to access them, but you will need to create an account and register to access the Guides. Members of the higher education community are also invited to join us for a free 30-minute live briefing this afternoon (January 10, 2019) at 2:30 ET to introduce the Resource Guides after which we will open a Q&A session on the proposed rule for attendees.
We strongly encourage higher education professionals to engage with their institutional leadership and encourage them to submit comments on the proposed Title IX rule. NASPA also encourages student affairs professionals to review the proposed rule and, if your professional background includes responsibility for Title IX or campus conduct procedures, to submit an individual comment before the January 28, 2019 deadline. Please feel free to review our tips for submitting effective comments or contact NASPA Director of Policy and Advocacy Teri Lyn Hinds at [email protected] with any questions.
 For the purposes of consistency, and in keeping with the language used in Title IX, we will use the term sexual harassment to encompass the broad array of sexually-based misconduct that may occur, including sexual assault.