ACE, Higher Education Groups Comment on Proposed Title IX Rules, Caution That Colleges Are Not Courts
January 30, 2019

​​ACE and 60 other higher education associations submitted comments today on the Department of Education’s proposed Title IX regulations, underscoring the commitment of institutions to fairly, effectively, and compassionately investigate and resolve allegations of sexual harassment. 

However, the comments caution that to expect colleges and universities to provide a prescriptive, one-size-fits-all forum that enables one person to seek a quasi-judicial judgment against another is problematic and antithetical to the educational environment.

The proposed rules, published in the Federal Register in November, follow the 2017 rescission by Education Secretary Betsy DeVos of the Obama administration’s Title IX guidance pertaining to sexual harassment and assault. 

The draft rules have received an overwhelming response, with 96,802 comments submitted on the website by this morning. Comments were due today, Jan. 30. 

The higher education associations believe while there are aspects of the proposed regulations that would be helpful, on balance, the draft rule would do more harm than good. The comments note provisions that would help institutions address sexual harassment, provisions that would undermine these efforts, and provisions that require clarification.

“We believe there are some elements of these proposed regulations that will help us accomplish the goal of establishing a clear regulatory framework that sets out the responsibilities of colleges and universities under Title IX and allows institutions to fairly, effectively, and compassionately investigate and resolve allegations of sexual harassment on their campuses,” said ACE President Ted Mitchell in a statement. “For example, the draft regulations provide survivors more flexibility to determine how they wish to proceed and require an objective evaluation of evidence, underscoring what should always be clear: there can be no ’thumb on the scale’ in favor of one party or the other.

“However, on balance, we think these draft regulations are a step in the wrong direction. A major concern is that the proposed rule imposes a legalistic, prescriptive ’one-size-fits-all’ judicial-like process and assumes that institutions are a reasonable substitute for our criminal and civil legal system. They are not.”

For example, the proposed rule would require a “live hearing” with direct cross-examination by the parties’ advisors. Such an approach—which will subject students to highly contentious, hostile, emotionally draining direct cross-examination in a courtroom-like atmosphere—has obvious drawbacks.

Among the other reservations the groups outline in their comments is a concern that for many institutions, the proposed rule would have the effect of establishing the evidentiary standard of proof used in all campus disciplinary hearings. The rule purports to offer institutions a choice of using either “preponderance of evidence” or “clear and convincing evidence” as the standard of proof in Title IX formal grievance proceedings. However, an institution that selects preponderance must adopt it in all other campus proceedings that carry the same disciplinary penalty. 

The proposed rule appears to force an institution to “dismiss” a complaint that falls outside of Title IX, even if that conduct would violate campus codes of conduct. It also appears to prevent an institution from taking disciplinary action without a formal Title IX complaint, even if the alleged conduct would violate Title IX and campus codes of conduct.

The associations’ comments include a series of recommendations for revision that they urge ED to make before it issues a final rule, expected later this year. ​