NACUBO and Higher Education Groups Provide Feedback on Proposed Title IX Rules

The National Association of College and University Business Officers (NACUBO) has joined the American Council on Education (ACE) and many other higher education association and groups in submitting comments on Title IX proposed rules that would give colleges and universities more flexibility in addressing sex-based discrimination.

The comment letter expresses gratitude to the Biden administration for broadening the definition of sex-based discrimination to include gender and sexual identity discrimination, and it suggests pregnancy be addressed in separate rulemaking decisions.

The letter reaffirms U.S. colleges and universities' commitment to ensuring that no student is discriminated against because of their gender in any educational program or activity.

The proposed changes would allow institutions to evaluate sexual allegations while assessing the credibility of the parties involved as they identify instances when the circumstances would necessitate allowing a competent and unbiased person to conduct the investigations and giving institutions discretion to determine the best process for communicating with the affected parties.

Furthermore, with the exception of cases in which an employee has harassed a student, the proposed changes would allow institutions to define the role of counselors in such sex-based cases, as well as use informal resolution procedures to resolve all types of sex-based discrimination grievances.

We applaud the proposed rule’s clarity on a variety of scenarios, including upholding the college's procedures for resolving sex-based discrimination, revising provisions that discouraged victims of sexual discrimination from reporting such sexual harassment incidents, and upholding the requirement that an employee who is a respondent in a sexual harassment case report such sexual harassment incidents.

Two anticipated challenges during the regulation's implementation were noted in the comments, as well as recommendations for mitigating these anticipated challenges. The proposed rule is silent on retroactive application; without greater clarity, implementation for the college and university systems would be difficult. Clarifying the regulation would benefit all parties involved (complainants, respondents, and institutions) by removing any uncertainty about the procedure to be followed.

The second anticipated challenge was the date of the final rule. We asked the department to consider how much time institutions will need to adapt their proposed policies in order to comply with the final rule once it is issued.

As a result, we suggested that the department establish a deadline to allow institutions sufficient time to implement new regulations on their campuses. In addition, we requested that the department provide technical assistance to institutions in order to reduce the implementation burden.We also addressed the proposed rule's provisions that would benefit from increased flexibility and clarity, which would help minimize unintended consequences and improve institutions' efforts to address sex-based discrimination. Provisions that require clarification include the definition of a student, the parties who may bring a sex-based discrimination complaint, when non-harassment sex-based discrimination may be addressed without triggering grievances, sex-separated programs, confidential employees and protection against disclosures, employee reporting obligation, expansion of the Title IX coordinator rule, and a requirement of specific procedures to resolve sexual harassment involving employees.

While we expressed gratitude for the opportunity to comment and provide insight into how the proposed changes might affect a variety of colleges, universities, and campus stakeholders, higher education institutions are committed to combating sex-based harassment and discrimination on campuses and adhering to all federal and state laws.

The higher education community hopes that the Department of Education will publish a final rule that will assist educational institutions in their efforts to prevent sex-based harassment, aid victims, and ensure impartial procedures for all parties involved.