TITLE IX: Proposed Changes and Commenting Process

Title IX was first implemented in 1972 in response to gender discrimination in women’s sports. Since then, it has expanded into a living document that includes prohibiting discrimination based on sex in education. It serves as a guide for K-12 and higher education on protocols for these cases. In November 2018, Besty DeVos, US Secretary of Education, proposed revisions to Title IX which would impact the ways in which schools are mandated to define and respond to sexual harassment.

As a country, we have the power to take in the revisions and comment on them. Before anything can be implemented, each comment will be read and responded to. At STAR we believe in the power of communities and that individual voices can make a tremendous impact. Below we will discuss some of the concerning proposed changes to Title IX and how to create an effective comment. It is also important to recognize that the current Title IX is not without its flaws, however, we want to make sure that we are always moving forward for better treatment and protocols for survivors.

These graphics represent a few concerning proposed changes to Title IX.

Written Proposal:
106.30, 106.45(b)(3): “The department defines ‘sexual harassment’ to mean [1.] an employee of the recipient in unwelcoming sexual conduct … [2.] unwelcome conduct… that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity… [3.] or sexual assault…”

The current Title IX guidance for sexual harassment defines it as “unwelcome conduct of a sexual nature...” The new Title IX would have a more specific definition.

This proposal would mean that if a survivor does not fit into the first or third category, they have to have experienced something “severe, pervasive, and objectively offensive.” For someone who is experiencing the early stages of stalking or domestic violence, this could impact their eligibility for reporting. This threatens to dismiss the severity of violence at early stages and could deter people from reporting a second time if they were already turned away once. It is also setting up a system saying that someone has not endured enough violence for a school to take action.
Title IX Proposed Change: New definition of sexual harassment
Written Proposal:
106.45(b)(3): “[I]f the conduct alleged by the complainant … did not occur within the [school’s] program or activity, the [school] must terminate its grievance process with regard to that conduct...”

Sexual harassment taken place off- campus, not during school activities, or online will not be investigated.

If enacted, this proposal may severely impact who is eligible to report their sexual assault on campus. According to the National Women’s Law Center, 87% of students live off campus and 41% of college sexual assaults involve off- campus parties. Additionally, a low 8% of rapes happen on school grounds.
Title IX Proposed Change: New parameters of where sexual harassment takes place affect whether schools investigate; Creates room for confusion of what “within the [school’s] program or activity” exactly encompasses
Title IX Proposed Change: Title IX proceedings turn into courtroom proceedings without the capacity of actual courtrooms

Comment Making – What is it, why it’s important and how to do it

When government agencies create new regulations or changes, they often follow informal rule making procedures. This involves announcing the changes to the public and allowing the public to comment. This is a period of “notice” and “comment,” which is usually limited to 30-60 days.

We are currently in the notice and comment period of this proposed Title IX update. The deadline for public comments is Monday, January 28, 2019 at 11:59 P.M. EST.

Make your voice heard by making a comment on these proposed changes! You can provide your own insight, ask for clarification and express your opinion to supply the agency with facts and perspectives missing from the drafted regulations.

You can submit public comment as an individual or work together with others to submit as an organization, a business, an agency, etc. You may submit comments by mail*, fax**, or online at regulations.gov.

The governing agency must consider “all relevant matter present” and must respond in some form to all comments received. In many cases the publication of the final rule will address data and materials provided in public comments. If there is overwhelmingly substantial and strident opposition to a proposed rule, the agency may decide to make modifications and start the process over.

The proposed changes to Title IX is a thorough 144-page document that includes reasoning for each change. Though there is explanation for each change, there still leaves much room for unintended consequences. These consequences can prove dangerous as they involve potentially dampening reports and creating an environment where sexual violence is to be tolerated.

At STAR our goal is to protect and empower survivors. We encourage everyone to submit a comment to help the Department of Education see how dangerous these changes could be and see the value in supporting people when they experience sexual assault and harassment.

The more detailed and unique the comment, the more likely your points and facts will be addressed in the agency’s response. To make the most effective commenting-making, we will draw upon our skills of writing persuasive essays and research papers.

→ Start with a brief introduction: 
Give context of who you are and why this is important to you
→ Focus on major issues: 
Take one or more points and keep them organized
You don’t have to hit every single part of the document to make your comment meaningful
Focus less on quantity of points and quality of dissection.
→ Take directly from source
Don’t forget to quote from the source as this helps the reader clearly identify what issues you are commenting on.
If you are commenting on a specific word, sentence, or case, include the page number, column, and paragraph citation from the published federal document.
 → Strengthen points with research and statistics and/or personal stories: 
Quantitative data will weigh more to the department than lived experience accounts
Economic angles will bring more weight to your comment (e.g. quoting from the research Lifetime Economic Burden of Rape)
→ Give alternatives: 
While you question or dispute a regulation, suggest an alternative than the written (no regulation also counts as a suggestion) 
Reason how your alternative could meet the same objective and be as/more effective
→ Stay professional and respectful!

* Address to Brittany Bull, U.S. Department of Education, 400 Maryland Avenue SW, Room 6E310, Washington, DC 20202

** Telephone: (202) 453-7100

Written by Alexis Canfield and Sarah Dai

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