Comments 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
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.
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DOCKET ID: ED-2018-OCR-0064
LITIGATION COUNSEL: Caleb Kruckenberg
SUBMISSION DATE: January 30, 2019
January 30, 2019 | Comments 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
January 31, 2019 | NCLA Submits Comment in Objection to Proposed ED Rule
Washington, D.C. — The New Civil Liberties Alliance (NCLA) today submitted a Comment to the Department of Education’s proposed rule, Nondiscrimination on the Basis of Sex in the Education Programs or Activities Receiving Federal Financial Assistance. NCLA argues that the Department (ED) lacks the constitutional authority to issue the rule and may not lawfully require educational institutions to adopt the adjudicatory procedures outlined in it.
NCLA condemns any form of sexual harassment. At the same time, past attempts at regulation through guidance have denied due process to the accused and a fair forum for both parties to seek justice. Unfortunately, the Department’s attempt to correct its past oversight abuses also exceeds its authority.
Instead of issuing this invalid rule, NCLA asks that ED acknowledge the impropriety of its past actions and allow each educational institution to determine the best process for addressing sexual harassment on its campus.
“While NCLA appreciates the Department’s effort to correct past abuses of departmental oversight, ED does not have the power to issue this proposed rule.” Mark Chenoweth-NCLA Executive Director and General Counsel
“No institution should ever feel pressured to adopt unconstitutional rules over the threat of losing federal funding.” Caleb Kruckenberg, NCLA Litigation Counsel
NCLA advises that all agencies and agency heads must examine whether their modes of rulemaking, adjudication, and enforcement comply with the Administrative Procedure Act (APA) and with the Constitution.
NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the administrative state. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unbridled power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org