Three faculty evaluate Department of Education proposed rule for Title IX enforcement

Harvard Law School Professors Jeannie Suk Gersen ’02 and Janet Halley, and Senior Lecturer on Law Nancy Gertner have issued a Comment on the Department of Education’s Proposed Rule on Title IX enforcement.

The authors write: “We strongly support vigorous enforcement of Title IX to ensure that students enjoy educational programs and activities unburdened by sexual harassment.” The Comment argues that sanctions for sexual harassment should apply only under a clear definition of wrongful conduct and after a process that is fair to all parties. With these dual objectives in mind, the Comment reviews the Department of Education’s Proposed Rule and agrees with some aspects and disagrees with others.

In November, Department of Education Secretary Betsy DeVos issued new sexual misconduct regulations for schools. After a 60-day public comment period, the Department of Education will formalize its Title IX policies. The window for public comment closes tonight at midnight.

In their comments, the HLS authors agree (with some suggested amendments) with the Rule’s treatment of the burden of proof, the rejection of the single-investigator model, and the requirement of a live hearing process. They argue that the rules they endorse do not undermine the critical goal of enforcing Title IX. They express serious concerns about the provisions on cross examination and the definition of sexual harassment, and propose revisions that will be more protective of complainants. The Comment strongly objects to provisions encouraging schools to file complaints when they have multiple allegations against a single potential respondent but no formal complainant, saying the inquiry there should be refocused on the threat of harm and take into account the complainants’ as well as the respondents’ interests. The three professors also strongly object to the deliberate indifference standard for schools’ ultimate responsibility to respond to sexual harassment.