CONTROVERSY & Confusion: NAS Critique of the AAUP Response to the New Title IX Regulations
On May 15, the American Association of University Professors (“AAUP”) released its Response to the Final Title IX Regulations issued by the Trump Education Department. Title IX is the federal law banning sex discrimination at schools receiving federal funds; it is an equal access law, originally designed to protect educational opportunity for women. Since its enactment in 1972, however, Title IX discussions have often focused on the law’s application to women’s sports and, now, on its application to campus sexual misconduct.
This latter area has generated considerable controversy – and confusion – in part because of the seriousness of the topic and in part because agency guidance and regulations to implement the law have been both unclear and, at times, overbearing. A prime example was the 2011 Dear Colleague Letter from the Obama Education Department’s Office of Civil Rights which announced that sexual harassment and sexual violence were forms of sex discrimination prohibited by Title IX. Campus Title IX Offices were then tasked with seeking and punishing such behavior or losing federal funds. This Title IX approach to campus sexual misconduct quickly became unworkable: Institutions receiving federal funds felt pressured to find and punish sexual assailants. Meanwhile, those accused of sexual misconduct often said their due process rights were violated by Title IX Offices when they were denied the presumption of innocence or were not informed of charges against them or were summarily removed from campus without the opportunity to respond.
In September of 2017, Education Secretary Betsy DeVos rescinded the 2011 DCL and, in November of 2018, she proposed new regulations pursuant to the Administrative Procedures Act, which requires time for public comment. The final regulations were issued May 6 of this year and are scheduled to take effect August 14. These final rules are no real surprise: They hew closely to those proposed in 2018 and also follow the last word on Title IX by the United States Supreme Court in the 1999 case of Davis v. Monroe County School Board. This precedent established a clear definition of what types of student-on-student sexual misconduct constitute sex discrimination in education for purposes of Title IX,
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