Take Action Tuesday

Comment period open for new Title IX proposed changes

There is about a week left to weigh in on proposed changes to Title IX that will affect student and employees of educational institutions from discrimination based on sex and sexual harassment. Or as ‘Catherine Lhamon, a former assistant secretary for civil rights in the Obama administration, said the consequences of the rule would be devastating for survivors: “It seems like encouragement for schools to stick their heads in the sand and ignore information readily available to them,”.’

Please take a few minutes and make an effective comment on proposed Title IX changes! We’ve provided the basics to help support your comment.

Submit a comment (look for the green button “submit a comment”)

Deadline is actually extended by 2 days because the website was down for 2 days so it should be January 30th now, although the federal register still says Jan 28th. Here is the link to sign a petition to extend the deadline further

General information about Title IX

Title IX protects students and employees of educational institutions from discrimination based on sex in education programs or activities that receive Federal financial assistance. Title IX states that:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Useful links about the open comment period can be found on this page:

Highlights of major changes per discussion with an expert by the Fort Collins pod

  • Proposed Rule changes by Trump administration Overall take away: Makes the process more similar to civil law, which favors people with money.   The proposed rule changes are pretty complicated, but there are a couple sections worth focusing on. Sections 106.44 (Institutional Response to Sexual Harrassment) & 106.45 (Grievance Procedures). Most significant changes are to 106.45. Please mention the section in your comment!

  • 106.44 & 106.45 - Office of Civil Rights role in remedial action removed. This may serve to protect universities. Possibly affects the national record of Title IX actions.

  • 106.44: “If Title IX responds to complaints and files a formal complaint then campus is not deliberately indifferent.” Previously campuses could be held liable for lack of response. There are no best practices provided and so this may lower the bar for “not deliberately indifferent.”

  • 106.45: Jurisdiction only on sexual harassment cases that are “severe, pervasive, and objectively offensive that it effectively denies a person equal access to [an institution’s] education program or activityLimits responsibility. Question about the term “pervasive” - would this exclude single events?. Excludes non educational programs or activities such as sorority/fraternity.off-campus parties.

  • 106.45: Standard of Proof includes a choice by institutions between “Clear & Convincing” and “Preponderance of Evidence” Previously Preponderance of Evidence, which was a lower bar to find guilt. Evidence is challenging in most sexual assault cases. CSU is likely to choose to stay with a “Preponderance of Evidence” as their threshold.

  • 106.45: Formal complaint: Complaintant must report to move forward with grievance procedures. Previously a campus could move forward with a case without a formal complaint. This will result in fewer cases overall as many victims are afraid to come forward.

  • 106.45: Live hearings: Hearings now required on all campuses. Previously campuses could choose type of hearing, if done at all. This could make the process more transparent, but also discourage victims to come forward.

  • 106.45: Cross examination: Through a parties advisor, cross examination can take place of either party and witnesses.

  • Parties can request to be in another room with technology helping to have a hearing

  • If a party has no advisor, the institution must provide one.

  • Advisors can be attorneys or anyone a party chooses

  • Previously campuses could choose type of cross examination, if done at all, and “support person” could not speak at hearing.

  • 106.45: Appeals: not mandatedPreviously not mandated either, but if live hearings and cross examinations are mandated, appeal options should also be mandated.

  • 106.45: Informal resolution: cases able to offer “mediation” for all cases, including sexual assault. If an informal process is pursued, then a formal one is not possible. Previously sexual assault cases were not allowed to use mediation. And previously was possible to move from informal to formal.

Photo by Lacie Slezak on Unsplash