Colleges and Universities Are Not Courts, Higher Education Groups Tell Education Department in Comments on Title IX
June 14, 2021

​​The Department of Education’s Office for Civil Rights (OCR) held a virtual public hearing last week to re-examine the Title IX regulation put in place by the Trump administration. As part of the process, officials requested stakeholders to send comments to supplement the 600 speaking slots over the five-day event.

ACE submitted comments June 10 on behalf of 42 other organizations, which highlight the groups’ concerns with the highly prescriptive, court-like processes required under the regulations, including the mandate for a live hearing with direct cross-examination.

As the associations wrote, colleges and universities are not courts—nor should they be—and do not convict people of crimes, impose criminal sanctions, or award damages. Moreover, requiring every campus to have a live-hearing with direct cross-examination has had a chilling effect on the willingness of survivors to come forward. It also creates the possibility for more trauma and raises serious equity concerns.

The regulations fail to recognize the myriad other federal, state and local laws, judicial precedent, institutional commitments and values regarding the handling of sexual harassment with which campuses must also comply, among other problems. On the whole, the regulations make it harder for campuses to effectively address sexual harassment, including sexual assault—which institutions want to do not only because they have a legal obligation to do so, but because it is the right thing to do.

This is the beginning of what will be a long process—the current regulations took more than three years to be finalized. The associations told OCR that it’s harmful to have constant churn and pendulum swings every time the White House changes hands, and encouraged a framework that is less prescriptive and provides flexibility for campuses to better address sexual misconduct while still ensuring fair processes for all concerned.

For more on the rulemaking process, see our Title IX resource page