I left the following comment on www.regulations.gov earlier today concerning the proposal of the Department of Education to enable sexual harassment in education without fear of the Department asking for damages to enforce the law. You can leave your own comment at any time between now and the end of the deadline on Monday, January 28, 2019. If you speak up and leave a comment, then by law even the current Federal administrative state is required to hear you. I urge you to make your voice heard!
January 27, 2019
Department of Education
RE: Comment to Docket ID ED-2018-OCR-0064
RIN 1870-AA14
To the Department of Education:
This concerns your proposed changes to Title IX regulations that were published in the Federal Register at 83 F.R. 61462-61499. You claim the authority to make these proposals as "20 U.S.C. 1681 et seq., unless otherwise noted." 83 F.R. at page 61495. In particular, this comment addresses your proposed changes to Section 106.3 of the regulations, titled Available Remedies, also published in 83 F.R. at page 61495.
Your proposed changes to Section 106.3 of the regulations are not sustainable as a matter of law and as a matter of law applied to fact.
First, your proposed changes to Section 106.3 would prohibit the "Assistant Secretary" of the Department of Education (i.e., "the Department") from seeking damages in any proceeding to enforce Title IX. The purpose for which Congress enacted this statute is clear on its face.
Section 1681, the beginning section of Title 20, sets the standard for discrimination in education on the basis of sex. Subsection (a) of 20 U.S.C.A. § could not be more clear: "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[.]"
There is nothing in the language chosen by Congress to effectuate its purpose that leads to the conclusions you propose as law in your changed Section 106.3, including taking away one of the powers of the Federal Government agencies, which is to seek damages in an appropriate case in order to compel enforcement of the Congressional mandate. For this reason, your proposed changes to Section 106.3 are not supported either by law or by the law applied to any facts, and they should not be enacted.
Second, as you are aware the Federal Courts are currently instructed to defer to the interpretation given by Federal agencies to the statutes they are called upon to administer. Your recently suggested interpretation, that Title IX does not allow your Department to seek damages in any proceeding to enforce Title IX, is contrary to the interpretation taken by the Federal Government since Title IX was first enacted nearly 50 years ago. The existing interpretation is like the statute itself: If Congress has not affirmatively spoken, one way or the other, about the recovery of damages as a tool in the administrative process of enforcing the mandate of Title IX, then the Department should remain silent itself and not interfere with Congress's own interpretation. In other words, it is a job for Congress and the Courts, not the Department of Education.
If anything, 50 years of existing interpretation should be given judicial deference over your opportunistically recent one. For this reason, your proposals to change Section 106.3 of the regulations should be rejected.
Third, your proposals in all of these proposed regulation changes which you published in 83 F.R. from page 61462 through 61499 inclusive, are internally inconsistent. Your proposed changes would change the standard of liability to "actual knowledge" coupled with "deliberate indifference" in any administrative action brought to enforce the law. However at the same time you would purport to take away the Department's ability to seek damages. This is internally inconsistent. It is also inconsistent with and contrary to the purpose of Title IX, which is quoted above from the statute itself in 20 U.S.C.A. § 1681(a). For this reason, your proposed changes, including your proposals to change Section 106.3 of the regulations should be rejected as contrary to law and as contrary to law applied to the facts.
For all of these reasons, whether taken separately or together, your proposed changes to Title IX and its existing attendant regulations should not be enacted. They should each and all be withdrawn or, if not withdrawn, then they should each and all be rejected as contrary to the law and contrary to the law applied to facts.
Thank you for your consideration.
Sincerely Yours,
Dennis J. Wall
Please Read The Disclaimer. ©2019 Dennis J. Wall. All Rights Reserved. A version of this article was previously published at Claims and Bad Faith Law Blog.
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