Re: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, Docket Number ED-2018-OCR-0064
The New Civil Liberties Alliance (NCLA) submits the following commentary in response to the Department of Education’s proposed rule, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 83 Fed. Reg. 61462 (Nov. 29, 2018) (Proposed Rule). NCLA sincerely appreciates this opportunity to comment and express its concerns about the Proposed Rule. NCLA abhors unequal treatment on the basis of sex, particularly when it involves sexual harassment or assault. NCLA likewise laments the Department’s history of regulating under Title IX via guidance and trampling the due process rights of accused individuals in the process. While NCLA appreciates the Department’s effort to correct past abuses of departmental oversight, the Proposed Rule is an inappropriate response. The Department lacks the constitutional authority to promulgate the rule, and it may not lawfully require educational institutions to adopt the adjudicatory procedures outlined in the rule. And while Congress may legislate in this area in a way that respects the constitutional rights of the accused, it has not yet done so in a manner that would authorize the Proposed Rule. Thus, instead of adopting the Proposed Rule, the Department should acknowledge the impropriety of its past actions and allow each institution to determine for itself the best process, consistent with the Constitution, for ameliorating sexual harassment and assault on campus.