The Higher Ed Workplace Blog

CUPA-HR Submits Comments on Proposed Rule Amending Title IX Regulations

On January 30, CUPA-HR submitted comments on the U.S. Department of Education’s proposed rule aimed at changing how colleges and universities must handle allegations of sexual assault and harassment under Title IX of the Education Amendments of 1972.

Title IX prohibits discrimination on the basis of sex in education programs and activities that receive federal financial assistance. The Department states in the preamble to the proposed rule, which was published in November, that the changes are “intended to promote the purpose of Title IX by requiring recipients to address sexual harassment, assisting and protecting victims of sexual harassment, and ensuring that due process protections are in place for individuals accused of sexual harassment.”

The agency began the process of changing Title IX requirements in September 2017, when it rescinded guidance issued in 2011 by the Obama administration. Education Secretary Betsy DeVos criticized the 2011 guidance as “overly prescriptive and lacking due process for the accused.”

CUPA-HR’s comments focus on the aspects of the Department’s proposal that could impact how higher education HR professionals manage policies and claims involving employment discrimination. Specifically, we note that the grievance procedures in the proposal — which appear to have been designed to address concerns regarding claims of sexual harassment against students — are inconsistent with the policies and widely accepted best practices that institutions have spent decades developing in accordance with their obligations under Title VII of the Civil Rights Act of 1964 and similar state and local laws. We urged the Department to address this conflict by making changes to the proposal to ensure that the outlined grievance process only applies to situations where the respondent is a student.

In addition, in situations where a student is accused of sexually harassing an employee, we suggested in our comments that the Department consult with the Equal Employment Opportunity Commission and issue joint guidance on how to minimize potential conflicts between the obligations to claimants under Title VII and respondents under Title IX. We also noted that we do not believe the grievance process should apply to any possible adverse employment action against a student employee where the job in question is not an integral part of the educational program and thus the adverse action would not impact the student’s equal access to an education.

For example, if the student works at the dining center on campus and is accused of harassment on the job, the employer should be permitted to follow its policies for addressing employment discrimination rather than any grievance process contained in a final rule. We acknowledged in the comments, however, that additional discipline against the student with respect to his or her role as a student of the institution would be informed by the grievance processes in the final rule.

CUPA-HR also joined with 60 other higher education associations in fully supporting comments led by the American Council on Education that offer substantive remarks on all aspects of the proposed regulations.

The proposal has received significant attention from a wide variety of stakeholders — lawmakers, higher education associations, students, mental health professionals and more — with over 100,000 public comments posted to the government website that allows stakeholders to contribute to the rulemaking process. The Administrative Procedures Act requires the Department to read all the comments and to respond to those that warrant a reply before it can issue final regulations. This likely means that any final rule is six or more months away.