ACLU Submits Comment on Proposed Title IX Rule

CONTACT:
Gillian Branstetter, gbranstetter@aclu.org

WASHINGTON — The American Civil Liberties Union submitted its public comment in response to the U.S. Department of Education’s proposed regulations concerning Title IX.

“The ACLU is equally committed to the rights of students to be free from sex discrimination and to the rights of students to fair processes in school disciplinary proceedings,” the comment reads. “Addressing discriminatory barriers to education is central to gender justice, given the import of education for our economic life, our democracy, and equality. This nation has failed to respond adequately to sex-based discrimination and the inequality perpetuated as a result.”

In June of 2022, the U.S. Department of Education issued a notice of proposed rulemaking governing schools’ obligations under Title IX, the federal civil rights law prohibiting sex discrimination in education. The ACLU’s comments in response to the proposal highlighted its support for regulations that:

• Make clear that Title IX covers harassment and discrimination based on sexual orientation, gender identity, and sex stereotypes;
• Draw from a long-standing definition of “sexual harassment” used for other forms of harassment;
• Require schools to investigate instances of student-on-student harassment or assaults that occur off campus where they affect students’ access to education;
• Hold institutions accountable when they fail to take prompt and effective action to end sex discrimination;
• Clarify that parties should be able to access relevant evidence while limiting access to irrelevant or privileged evidence;
• Clarify that in the limited circumstances where Title IX’s regulations permit differential treatment or separation on the basis of sex, that differential treatment cannot prevent a person who is transgender from participating in an educational program or activity consistent with the person’s gender identity;
• Clarify the definition of discrimination based on status as a parent to include a range of individuals with caregiving responsibilities for children; and
• Make clear that the existing prohibition on pregnancy discrimination includes discrimination based on lactation and requires recipients to provide a clean lactation space and break time to express milk for both students and employees.

The ACLU also stated our opposition to provisions in the proposed regulation that:

• Do not require universities to provide a live hearing and an opportunity for cross-examination where serious sanctions, such as suspension or expulsion, may apply;
• Permit universities to use the single investigator model, where a single person investigates a complaint and makes the decision about the outcome; and
• Do not explicitly require institutions to delay Title IX proceedings upon the request of a respondent who faces an imminent or ongoing criminal investigation or prosecution.

In 2020, the Supreme Court ruled in Bostock v. Clayton County, in which the ACLU was counsel, that anti-LGBTQ discrimination is a form of sex discrimination prohibited under Title VII, the workplace nondiscrimination law. The proposed regulation applies this ruling to the education context, provides that transgender students are not excluded from sex-separated facilities, and specifically cites the harm experienced by transgender students excluded on the basis of their gender identity.

The ACLU previously challenged certain provisions of the Title IX regulation issued under former Secretary Betsy DeVos concerning schools’ obligations to respond to sexual harassment and assault. The proposed regulation addresses objections raised in the ACLU suit, which was filed on behalf of Know Your IX, Council of Parent Attorneys and Advocates, Inc., Girls for Gender Equity, and Stop Sexual Assault in Schools.

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