The following article is a combination of comments I left on www.regulations.gov earlier today. Leave your own comments too! The Docket ID is on this article, immediately below, and GOOD NEWS! The Federal Government has just extended the deadline for comments to January 30, 2019! Take this as a good sign and leave your comments now!
January 28, 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. Your stated authority for them is "20 U.S.C. 1681 et seq., unless otherwise noted." 83 F.R. at 61495. These particular comments address the Formal Grievance Procedure you have introduced in your new 34 C.F.R. § 106.45, published in 83 F.R. at 61497-99. There are a number of problems with this new Formal Grievance Procedure.
Your new Section 106.45(a) provides that "[a] recipient's treatment of the respondent may also constitute discrimination on the basis of sex under Title IX." 83 F.R. at 61497. However I am not aware of any Court that has ever declared that to be the correct interpretation of Title IX. To the extent that you introduce this idea in your proposed new regulation, it is contrary to the expressed purpose of Title IX. Section 1681 is the beginning section of Title 20, United States Code, otherwise known as Title IX. Section 1681 sets the standard for discrimination in education on the basis of sex. Subsection (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[.]" This language clearly does not include your proposed education tribunals conducting your new Formal Grievance Procedures. It is therefore contrary to the statute passed by Congress and, although the law can be changed by vote in Congress, this proposed rewrite of the law cannot be lawfully enacted by a mere administrative agency such as the Department of Education. Your proposal in this regard is void and cannot be enacted.
You propose a new regulation that "credibility determinations may not be based on a person's status as a complainant, respondent, or witness" in 106.45(b)(1)(ii), published in 83 F.R. at 61497. Credibility determinations, as you call them, are made all the time in Court by judges and juries based on the bias of the person presenting the evidence. You did not provide any evidence to support this change. This change is contrary to the Administrative Procedure Act for that reason and, on its face, it is contrary to law. It cannot lawfully be enacted and should be withdrawn.
Your proposed new 106.45(b)(iii) requires that certain personnel at academic institutions be given training in "how to conduct an investigation and grievance process, including hearings," among other things. Yet you do not prescribe what the training will entail nor who is supposed to provide it. For example, you do not state whether providers of this training will be required to have experience in presenting evidence or conducting hearings in other administrative proceedings. This proposal too is contrary to the Administrative Procedure Act for that reason and, on its face, it is contrary to law. It too cannot lawfully be enacted and should be withdrawn.
You propose a new regulatory requirement that academic institutions conducting a Formal Grievance Procedure must give the alleged sex perpetrator "sufficient time to prepare a response before any initial interview." § 106.45(b)(2)(B), published in 83 F.R. at 61498 (emphasis added). This is wrong (and unauthorized) policy-making and bad administrative procedure on your part. As highlighted by the italicized language, your concern is not with the fundamental fairness of any required hearing, but instead you are fixated on the initial interview. No person accused of misconduct in any other setting is given advance notice that they are going to be investigated for their alleged misconduct. The alleged perpetrator may elect to be silent or to assert Constitutional rights of one kind or another, or anything in between, but no person accused of misconduct has ever been given rights to prepare for the initial interview of the investigation against her or him. Your proposal to the contrary in this regard is not supported by any evidence in any case. This proposal too is contrary to the Administrative Procedure Act for that reason and, on its face, it is contrary to law. It cannot lawfully be enacted and should be withdrawn.
You propose that your new Formal Grievance Procedures must "provide for a live hearing" for institutions of higher education. § 106.45(b)(3)(vii), published in 83 F.R. at 61498. Your proposal does not clarify to institutions of higher education what if any procedures they must provide in the course of their providing for the "live hearing" that your regulation would now require. Your regulatory guidance is absent in this regard, including to advise institutions of higher education whether any part or proceeding of this "live hearing" is to be kept secret, or whether "live" includes the keeping of a record of the proceedings, or whether these administrative proceedings that would now require a "live hearing" import the Federal Rules of Evidence or any other rules of evidence, to mention only a few examples among many. This proposal is unauthorized, and it is contrary to law, and should not be enacted. It should be withdrawn.
You propose that your new Formal Grievance Procedures must "provide for a live hearing" for institutions of higher education. § 106.45(b)(3)(vii), published in 83 F.R. at 61498. Your proposal does not clarify to institutions of higher education what if any essential procedures they must follow in the course of their providing for the new "live hearing." Your regulatory guidance is absent in this regard, including to advise institutions of higher education whether any part or proceeding of this "live hearing" is to be kept secret, or whether "live" includes the keeping of a record of the proceedings, or whether these administrative proceedings that would now require a "live hearing" import the Federal Rules of Evidence or any other rules of evidence, to mention only a few examples among many. This proposal is unauthorized, and it is contrary to law, and should not be enacted.
Your proposals regarding new treatment of "evidence of the complainant's sexual behavior or predisposition," also published in § 107.45(b)(3)(vii), are unfounded, unsupported by evidence, and contrary to law. In particular, "sexual predisposition" is not a valid category of evidence in any judicial or administrative proceedings at this time. You do not present any evidence to support your rewrite of this category of evidence. This is bad public policy because the law has always focused on whether an act has taken place and not on whether the person who allegedly committed the act was predisposed to commit it. This particular proposal also suffers from inequality itself for you did not also make it apply to evidence of the alleged sex perpetrator's "sexual predisposition" to sexually harass other people. Your proposals in this regard are again contrary to the Administrative Procedure Act, are again substantively contrary to law, are contrary to law applied to facts, are unauthorized, and void. They should not be enacted.
A judge does not have to explain the basis of her or his rulings on evidence, yet once again also in your new § 106.45(b)(3)(vii), you would require "[t]he decision-maker" at your live Formal Grievance Procedures hearing to "explain to the party's advisor asking cross-examination questions any decision to exclude questions as not relevant." Your proposal in this regard is contrary to substantive law. Further, you provide no evidence in support of your proposed change, which is in violation of the Administrative Procedures Act. The change you propose in this regard is void and should not be enacted.
Your proposed change in the standard of evidence applicable to Title IX proceedings misses the mark completely. The standard of evidence you propose should apply to Title IX proceedings to determine only whether a person is being excluded from participation in or being denied the benefits of or being subjected to discrimination under any education program or activity receiving Federal financial assistance, "on the basis of sex[.]" 20 U.S.C.A. § 1681(a). You are not authorized to propose a shifting standard of evidence for determining Title IX claims based on whether the recipient uses the preponderance of the evidence standard, or not, "for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction." That is however what you propose to do in your new 34 C.F.R. § 106.45(b)(4), 83 F.R. at 61499. University "code violations" are simply not your concern. Your concern is strictly with Title IX claims. Your proposals in question are not authorized and contrary to law. They should not be enacted.
Similarly, your proposed § 106.45(b)(4)(ii)(C) & (D), 83 F.R. at 61499, would require the academic institution to make a written determination including findings of fact, and conclusions "regarding the application of the recipient's code of conduct to the facts[.]" (Emphasis added.) To say again, whether the recipient's code of conduct applies is not your concern. To say it another way, you are not authorized to impose requirements on a recipient based on its own code of conduct. Your authority is strictly restricted to the application of Title IX to the facts. You recognized this yourself in your new 34 C.F.R. § 106.45(a) when you stated at the outset that you were addressing sexual harassment that "may constitute discrimination on the basis of sex under Title IX." Your proposals that follow including in § 106.45(b)(4)(ii)(C) & (D), 83 F.R. at 61499, are again contrary to the Administrative Procedure Act, are again substantively contrary to law, are contrary to law applied to facts, are unauthorized, are void, and should not be enacted.
Thank you for your consideration.
Sincerely Yours,
Dennis J. Wall
The Federal Government has just extended the comments deadline through January 30, 2019! I urge you to leave your own comments on www.regulations.gov. The Docket Number that the Government wants us to use is at the top of this post. These comments will be made available today both to the readers of Claims and Issues Blog and to the readers of Claims and Bad Faith Law Blog.
Please Read The Disclaimer. ©2019 Dennis J. Wall. All Rights Reserved.
Comments