Today OCR announced the long-awaited draft revisions to its Title IX implementing regulations (see also summary, here, and press release, here). As expected, the agency is proposing to deregulate education institutions’ response to sexual harassment (which includes sexual misconduct like assault). Two key features of the proposed regulations will roll back the government’s oversight of educational institutions response to sexual harassment: first, the definition of sexual harassment that the agency is proposing, which requires that it be “severe, pervasive and objectively offensive ” instead of “severe or pervasive, and objectively offensive.” To be fair, the Supreme Court in Davis omitted the crucial “or” in its recitation of the standard. However, the Court’s application of the standard made clear that harassment could be offensive based on its pervasiveness alone. Moreover, the Court in Davis was applying the standard for sexual harassment that had been developed in judicial interpretations of Title VII, where the disjunctive relationship between the two concepts was already settled law.
Another key deregulatory feature is the proposed regulation’s inclusion of a deliberate indifference standard, promising not to penalize an institution unless its response is “clearly unreasonable.” This is a highly permissive standard that the Supreme Court developed for an altogether different purpose than regulatory oversight. Instead, the Court imported the DI standard only in cases where plaintiffs are suing educational institutions for violations of Title IX and seeking money damages. Title IX is a Spending Clause statute, so a situation tantamount to intentional discrimination is necessary to justify forcing institutions to make payment to plaintiffs, who are effectively third parties to the Title IX “contract” (federal funding in exchange for adherence to a nondiscrimination mandate) between schools and the government. OCR is wrong to say that the Court’s rationale for the DI standard is persuasive in the context of regulatory oversight, since the Court was clearly distinguishing judicial and regulatory enforcement when it adopted the DI standard for Title IX cases asserting a private right of action for money damages.
Also, as predicted, the proposed regulations contain a number of requirements that the institutions incorporate respondent-friendly features into their grievance proceedings. These due process requirements–for example, a presumption of innocence, a right to cross-examine the reporting party at a live hearing, and the possibility that clear-and-convincing standard of evidence be used–are departures from the prior administration’s requirement of equitable procedures. The prior administration’s OCR and all of its predecessors have refrained from micromanaging an institution’s adherence to due process because the Department of Education does not have authority to enforce the due process clause, it has the authority to enforce Title IX. Title IX extends to an institution’s response to sexual harassment because sexual harassment is discrimination that violates the statute. Beyond ensuring that the university’s minimal response is sufficient to address the underlying violation, it has no authority to require certain procedural safeguards, beyond requiring schools to not to deny procedural safeguards to certain respondents because of their sex.
The last issue I want to point out here is OCR’s proposed deregulation of the religious exemption. Currently, OCR requires institutions whose religious tenets conflict with an obligation under Title IX to notify the agency of its claimed exemption, but the proposed regulations remove this obligation. The agency argues that the registration requirement is not necessary because the First Amendment is self-executing. But the is no inherent First Amendment right to take federal money and use it to discriminate on the basis of sex, other than discrimination that falls within the so-called ministerial exemption. But the religious conflicts institutions seek Title IX exemptions for are more than just permission to discriminate against women who are or are seeking to become ministers, they apply to issues like reproductive freedom and LGBT civil rights, that have nothing to do with the hiring and training of ministers. Not only is this proposed deregulation constitutionally unnecessary, it is also harmful. Without a mechanism to keep track of exemptions, prospective students and employees have no way to know if their civil rights will be protected at a given institution. They can be completely blindsided by the lack of legal recourse against an institution that discriminates against them in a way that would be prohibited of a secular institution.
What will happen next is a 60-day comment period (not 60 days from today, but 60 days from whenever the draft regulations are officially published in the Federal Register, which would presumably be any day). The agency will review the comments and finalize the rule in a manner that should take those comments into account. Then the agency will likely have to defend the rule in court, fending off challenges that it is arbitrary and capricious in light of comments on the record, and that it goes beyond the agency’s authority to enforce Title IX.