CGS Joins Comment Letter on Title IX

The Council of Graduate Schools and nearly 50 higher education organizations submitted public comments regarding the Department of Education’s Notice of Proposed Rulemaking on Title IX. As reported in previous Washington Insights & Highlights Newsletters, the Department of Education’s proposed revisions to Title IX include:

  • Clearly protecting students and employees from all forms of sex discrimination.
  • Providing full protection from sex-based harassment.
  • Requiring schools to take prompt and effective action to end any sex discrimination in their educational programs or activities – and to prevent its recurrence and remedy its effects.
  • Requiring schools to respond promptly to all complaints of sex discrimination with a fair and reliable process that includes trained, unbiased decision makers to evaluate the evidence.
  • Protecting LGBTQI+ students from discrimination based on sexual orientation, gender identity, and sex characteristics.

The organizations write in the letter “We appreciate the opportunity to submit these comments and to share insights regarding the impact of the proposed changes on a diverse group of colleges and universities and campus stakeholders. Higher education institutions are committed to addressing sex-based discrimination and sex-based harassment on their campuses and to complying with all federal and state laws, including Title IX. We hope these comments will help the Department provide a final rule that will assist campuses in their efforts to address sex-based discrimination, to support survivors of sex-based harassment, and to ensure fair processes for all parties.”

Given the comprehensiveness of the higher education community’s comment letter, below are a few recommendations of relevance to the graduate education community:

  • Conduct “subject to the institution’s disciplinary authority” 106.11. The proposed rule would expand the scope of when conduct is considered to have occurred under an institution’s education program or activity to include any that is subject to a recipient’s disciplinary authority. In response to the proposed rule, the organizations that signed on to this letter offers the following recommendation: “We suggest the Department revise the proposed rule to eliminate the disciplinary authority element from its definition of programs and activities. As an alternative standard, the Department could consider requiring institutions to address conduct, that while outside the institution’s program or activity, the institution has determined the potential to cause serious harm to the health and safety of its community members.”
  • When non-harassment sex-based discrimination may be addressed informally vs. triggering section 106.45 procedures. Since the proposed rule is ambiguous about whether an institution is obligated to initiate the grievance procedures under 106.45 in response to every single concern about non-harassment sex-based discrimination that a student, visiting student, faculty or staff member may bring to the attention of a faculty or staff member, the comment letter asks for greater clarity on this provision. In response to the proposed rule, the organizations that signed on to this letter offers the following recommendation: “We recommend that the Department define in the regulations when sex-based discrimination rises to the level that would require an institutional response informed by the grievance procedures in section 106.45. We urge the Department to take a practical approach in crafting this standard to preserve flexibility and maintain significant discretion for faculty and staff to promptly and effectively address sex-based discrimination that does not meet this standard, as they are already required to do under section 106.44.”
  • Employee reporting obligations 106.44(c). The proposed rule creates an expansive set of reporting responsibilities for college and university employees. As currently written, this proposed rule would require every employee to either contact the Title IX coordinator or provide contact information anytime they learn of conduct that may constitute sex-based discrimination. Given this convoluted set of reporting requirements, we urge the Department of Education to redraft this section of the proposed rule in a way that would provide greater flexibility for institutions. The comment letter specifically recommends that the Department clearly designate the specific categories of employees who have responsibility for reporting to the Title IX coordinator and provide institutions the flexibility to designate additional employees as mandatory reporters.
  • Institutional obligations regarding students experiencing pregnancy or a related condition 106.40. The proposed rule outlines institutional responsibilities with respect to pregnant students and students experiencing a pregnancy related condition. While the proposed rule provides additional clarity regarding institutional obligations and codifies some existing requirements, it does not fundamentally alter campus responsibilities in this area. Given the recent U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization and related state legislation, the organizations that signed on to this letter think it would be beneficial to break off these issues from the current NPRM and consider them in a second, separate rulemaking.