This is my second comment on changes to Title IX proposed by the current Department of Education. The deadline for leaving comments is this coming Monday, January 28, 2019. You can leave comments 24/7 between now and the end of the deadline at www.regulations.gov. I am. You can too.
January 25, 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 61495.
There is nothing in Sections 1681 et seq. of Title 20 that authorizes any of these proposals. To the contrary, they prohibit the standards you are proposing to govern every form of liability under Title IX.
Specifically, you would require liability for every claim of sexual harassment under any education program or activity receiving Federal financial assistance to depend only on the recipient's (shorthand for our purposes, the school's) "actual knowledge" and the school responded with deliberate indifference. § 106.44(a), published in 83 F.R. at 61497 (emphasis added).
Your proposed changes would also add a definition of "actual knowledge" which would mean "notice of sexual harassment or allegations of sexual harassment" made "to a recipient's Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient," meaning on behalf of the school, in basic and simple terms. Your proposed new definition is in your proposed Section 106.30. It is published in 83 F.R. at 61496.
You say that your proposed changes track Federal case law. See, e.g., 83 F.R. at 61466-67. You also expressly make the claim that "[t]he Department's proposed regulations significantly reflect legal precedent[.]" 83 F.R. at 61466. Yet this is not true.
The standard of liability you propose for all relief is the standard of liability limited by Federal Courts to the issue of liability for money damages. When a claimant in a lawsuit seeks recovery of damages for a violation of Title IX, then the claimant must show that the recipient, i.e., school, had actual knowledge of the alleged sexual harassment and responded with deliberate indifference. The Federal Courts do not follow that standard when the claim is for injunctive relief or otherwise to compel compliance with the law, in this case with Title IX. Your suggestion that your proposed changes "significantly reflect legal precedent" is false and misleading.
You do not have the authority to propose regulations that would not further the expressly announced purpose of Title IX which is to prohibit discrimination on the basis of sex in "any education program or activity receiving Federal assistance," purely and simply. 20 U.S.C.A. § 1681(a). These words were chosen by Congress to express its intent in enacting Title IX. You do not have the authority either to change the Congressional intent or to change the statute passed by the representatives of the people of the United States in their Congress.
For these reasons, whether taken separately or together, the administrative standards of liability you propose for any and all forms of liability under Title IX, including but not limited to liability under Title IX for any and all forms of non-monetary relief, are inconsistent with Title IX's mandate that "[n]o 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[.]" 20 U.S.C.A. § 1681(a).
Your proposed standards of liability are therefore contrary to law.
Moreover, you lack the statutory authority to promulgate these standards in any rules or regulations.
As a result, your proposed standards are a nullity. They should be withdrawn before they are overturned on judicial review. See 20 U.S.C.A. § 1683.
Thank you for your consideration.
Sincerely Yours,
Dennis J. Wall
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