Members of Congress Introduce Bill to Restore Withdrawn Guidance

Members of Congress announced this week that they have proposed a bill that aims to codify aspects of the Obama administration's 2011 Dear Colleague Letter and related guidance that was withdrawn by the Department of Education last month. It would also codify some of language in the Title IX regulations and the 2001 Guidance that the Department of Education is endorsing for now, but which could in the absence of statutory law theoretically be amended by new regulations or policy interpretations promulgated in the future.

The bill, authored by Representative Jackie Speier (D-CA) is called the Title IX Protection Act (H.R. 4030), and it would require that institutions:

• to designate a Title IX coordinator, and to disseminate a notice of nondiscrimination based on sex.
• to adopt and publish grievance procedures providing for prompt and equitable resolution of sex discrimination complaints. Grievance procedures may include voluntary informal mechanisms (e.g., mediation) -- but not for sexual violence cases.
• to address sexual harassment, including sexual violence, about which a responsible school employee knew or should have known. 
• to take "immediate action" to address a hostile environment created by sexual harassment, designed to "eliminate the harassment, prevent its recurrence, and address its effects". An actionable hostile environment is one "sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program," including an isolated incident of sexual harassment if the incident is sufficiently severe, such as rape.  This requirement to take action also includes interim measures to help the complainant deal with the effects harassment and avoid contact with the perpetrator.
• to process all complaints of sexual violence, regardless of where the conduct occurred, to determine whether the conduct occurred in the context of an education program or activity or had continuing effects on campus or in an off-campus education program or activity; this requirement applies even if law enforcement is already investigating. 
• to use the preponderance standard of evidence to adjudicate sexual misconduct matters --this had been a key requirement of the 2011 Dear Colleague Letter, but one that the current administration abandoned when it permitted institutions to substitute the higher clear and convincing evidence standard.
• to provide symmetrical procedural rights to both the respondent and complainant, including the right to attend the hearing, to present relevant witnesses and other evidence, to access to information that will be used at the hearing, to be accompanied by an advisor, and to appeal the initial decision. 
• to permit cross-examination by a third-party -- in order to minimize the potential trauma or intimidation to the complainant of being questioned by the person they have accused of sexual violence.
• in cases where the complainant requests confidentiality (thus limiting the school's ability to discipline the alleged harasser), to "pursue other steps to limit the effects of the alleged harassment and prevent its recurrence."
• to conclude investigations approximately 60 calendar days, with an exception for cases involving multiple incidents with multiple complainants or where there is a parallel criminal investigation.

Unfortunately, it is difficult to imagine this bill getting much traction in Congress in this political climate. Nevertheless, I believe this bill is valuable because it can serve as a focal point for political activism. It may produce a legislative record that could influence the political debate ongoing in general and in particular in the Department of Education as it considers revising the existing regulations and policies. Finally, the bill serves as a general reminder of the role Congress has to play in challenging the president when it disagrees with the administration's policies.