By Susan D. Friedfel, Crystal L. Tyler and Gregg E. Clifton, of Jackson Lewis
Four congresspersons have introduced legislation in the House of Representatives aiming to block the Department of Education’s proposed amendments to the Title IX regulations on how colleges and universities must handle allegations of sexual misconduct from taking effect.
The bill, introduced on December 10, 2019, would prohibit Secretary of Education Betsy DeVos from taking any action to implement the proposed revisions to the Title IX regulations published on November 29, 2018. The bill also would prohibit the Secretary from proposing or issuing any substantially similar amendments or rules. The stated purpose of the bill is to prevent “certain rules that weaken the enforcement of the prohibition of sex discrimination applicable under title IX of the Education Amendments of 1972.”
The Department of Education received well over 100,000 comments during the 60-day public comment period following publication of its proposed regulations. The proposed regulations have not been finalized, but the Department of Education reportedly has transmitted its final version to the Office of Management and Budget for review, suggesting that the final regulations will be published early in 2020. (For details of the proposed regulations, see our article, Department of Education Unveils Proposed Title IX Regulations.)
As originally proposed, the regulations would, among other changes:
Prevent universities from investigating off-campus sexual harassment;
Narrow the definition of “sexual harassment” to mean “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity”; and
Hold universities to a “deliberately indifferent” standard for agency enforcement and require universities to hold hearings in which any party or witness would be subject to cross-examination by the opposing party’s advisor.
