Texas Advocacy Project's Title IX Comments

Texas Advocacy Project's comments regarding the Department’s proposed regulations: 

Grievance Procedures for All Sex Discrimination Complaints under Title IX. 
Reasonably prompt timeframes for all major stages. 
Although we support the proposed rule requiring schools to conduct “prompt” investigations and set “reasonably prompt timeframes” for all major stages of an investigation of sex-based discrimination, we feel it does not go far enough in protecting the interests of complainants and respondents. We advise the Department to specify what a “reasonably prompt” timeframe is and which situations qualify as a “good cause.” Additionally, we recommend explicitly prohibiting schools from imposing more than a “temporary” delay due to a concurrent law enforcement investigation. 

Not speaking to the direct use of school facilities.  
By not speaking directly on the use of school facilities, the proposed regulations are ignoring the Fourth Circuit ruling in favor of a transgender student based on equal protection and Title IX claims. The circuit observed that “after the Supreme Court’s recent decision in Bostock . . ., we have little difficulty holding that a bathroom policy precluding Grimm from using boys’ restrooms discriminated against him ‘on the basis of sex.’” We urge the Department to include explicit language on the use of school facilities. 

Protect LGBTQI+ students from discrimination based on sexual orientation, gender identity, and sex characteristics. 
We are concerned that the proposed regulations declined to address exclusion from school sports as an increasingly common form of sex discrimination, faced particularly by transgender, non-binary, and intersex students. We urge the Department to issue its forthcoming rule addressing athletics participation as quickly as possible, by the end of 2022, so that it may be finalized together with this set of proposed rules by spring 2023, with sufficient time for schools to update their policies prior to the start of the 2023-2024 school year. 
 

In addition to the above recommendations, we would like to offer the following explicit notes of support:  

Protect students and employees who are pregnant or have pregnancy-related conditions. 
Pregnant and parenting students of all ages face unique barriers to completing their education. Many institutions retain inflexible attendance policies and limited to no access to child care, transportation aid, and lactation spaces. Though many pregnant and parenting students have shown remarkable resilience, this discrimination has, for too long, harmed their chances of graduating from high school and/or college. We support the proposed regulations’ clarification of existing regulations around discrimination against pregnancy and “pregnancy-related symptoms.” By clarifying the types of accommodations that students and employees can access while pregnant or throughout/after a miscarriage or abortion and providing a clear definition of what falls under “pregnancy-related symptoms”, students will be able to request a medically excused absence from class and find the support they need. These changes will decrease the dropout rate amongst pregnant and parenting students and encourage students to continue their education. 

Protect LGBTQI+ students from discrimination based on sexual orientation, gender identity, and sex characteristics. 
We know that LGBTQIA2+ students face even higher rates of harassment, assault, and other discrimination based on their sexual orientation and/or gender identity. As Bostock v. Clayton County declared in 2020, it is "impossible to discriminate against a person" on the basis of sexual orientation or gender identity without "discriminating against that individual based on sex." We support the proposed regulations’ clarification that Title IX’s prohibition on discrimination based on sex applies to discrimination based on sexual orientation and gender identity. By clarifying that preventing someone from participating in school programs and activities consistent with their gender identity would be in violation of Title IX, the proposed regulations uplift Title IX into compliance with legal precedent by unlocking long overdue protections for LGBTQIA2+ students. 

Clarify and confirm protection from retaliation for students, employees, and others who exercise their Title IX rights. 
By requiring schools to protect anyone who exercises their Title IX rights from retaliation, the new regulations ensure the protections guaranteed by Title IX will be carried out. Without such protections, students are more likely to be unwilling to report or share information on an incident of sex discrimination. We support this proposed regulation because it makes it clear that schools are responsible for protecting their students from retaliation by other students or staff. By explicitly stating that schools must not intimidate, threaten, coerce, or discriminate against someone because they participated in the school’s Title IX process, the new rule is guaranteeing the fulfillment of Title IX protections.  

Require schools to respond promptly to all complaints of sex discrimination with a fair and reliable process that includes trained, unbiased decisionmakers to evaluate all permissible evidence. 
We support the increased flexibility the proposed rules grant K-12 sex-based harassment and discrimination investigations. They encourage investigations to be conducted promptly and appropriately. Over the years we have advised, counseled, and served as advocates for many students throughout their Title IX proceedings. We know that the requirement for cross examination and live hearings terrified students who were afraid of being questioned by their abuser and/or retraumatized. After the 2020 regulation changes under the Trump Administration, we saw a significant drop in reporting due to these uniformed, harmful policies. Most urgently, we support removing the harmful requirement for live cross-examinations in higher education institutions’ investigations. We support allowing more flexibility for questioning to be conducted either: (i) by a decision-maker at a live hearing or in individual meetings, with suggested questions from the parties; or (ii) by the parties’ advisors via cross-examination at a live hearing, as is already required in some jurisdictions because of federal court decisions. This approach is cost effective and eliminates the adverse effects that mandatory live hearings can impose upon both parties. We would, however, like to encourage the Department to provide practical implementation plans to schools as to how they can ensure due process while reducing a reliance on cross-examination. 

As the burden of proof standard determines the effectiveness of Title IX, we support the adoption of a preponderance of the evidence standard so not to deter those who have experienced sexual harassment and assault from coming forward. By eliminating the requirement for live hearings and cross examinations, the administration is demonstrating their understanding of the importance of trauma-informed care. In this vein, we support the proposed amendments’ move towards crafting a fair environment for all parties by respecting freedom of speech, academic freedom, and complainants' autonomy. 

Require schools to provide supportive measures to students and employees affected by conduct that may constitute sex discrimination, including students who have brought complaints or been accused of sex-based harassment.  
We support the proposed regulations’ requirement to offer supportive measures to restore or preserve a party’s access to the school’s education program or activity. By expanding this requirement beyond just potential sexual harassment incidents to any potential incident of sex discrimination, the proposed change actively removes barriers to reporting.  

Addressing Off-Campus Conduct that Creates or Contributes to a Hostile Environment in a Recipient’s Education Program or Activity. 
We support the expansion of the scope of Title IX to apply to conduct that occurs off-campus or during a study abroad program where the effects of the discrimination occur in the United States. The effects of a discrimination can ripple long after an initial incident. If a student is not allowed to deploy their Title IX rights because the discrimination by other students or staff initially took place off campus or outside of their education program or activity, that student’s education program or activity can quickly become a hostile environment, preventing the continuation of an equitable education. By making this expansion, the Administration is ensuring that no person shall be subjected to discrimination under an education program or activity receiving Federal financial assistance.