Policy expert explains why Title IX needs an overhaul

Policy expert explains why Title IX needs an overhaul
Current “heavy-handed” rules threaten freedom of speech, due process

September 6, 2017—Education Secretary Betsy DeVos is expected to make an announcement about a new direction for Title IX policy tomorrow at George Mason’s Antonin Scalia Law School in Arlington, Virginia. What’s at stake if the Trump administration rolls back “Dear Colleague” directives issued by the Obama-era Office for Civil Rights? Despite partisan dispute, there may be opportunities to improve OCR guidelines through review. In a new article for Education Next, Boston College public policy professor R. Shep Melnick details why the Department of Education should undertake a thorough reexamination of Title IX policy—and why multiple professional and civil rights groups agree that it’s time for change.

Title IX of the Education Amendments of 1972 prohibits schools, both K-12 and higher education, that receive federal funding from discriminating on the basis of sex. In 2011, President Obama implemented sweeping guidelines through multiple “Dear Colleague” letters (DCLs), one of which, on transgender rights, President Trump revoked this February. However, the Trump administration cannot simply rescind most previous OCR directives as it did transgender rights, says Melnick. Establishing new guidelines will take political acumen.

Among the opportunities for improvement, Melnick cites:

Protection of due process and freedom of speech: OCR’s rules threaten both due process of law and free speech on campus. Nadine Strossen, former president of the American Civil Liberties Union (ACLU), devoted an entire 2015 lecture at Harvard to warning of the dangers to freedom of speech posed by OCR’s policies. Other groups speaking out against OCR’s rules include the American College of Trial Lawyers and American Association of University Professors.

Commitment to federal laws established by Supreme Court rulings: OCR’s current reading of its authority under Title IX goes beyond the narrow interpretation adopted by the Supreme Court in two decisions that addressed the sexual harassment issue, even explicitly rejecting the rulings in guidelines issued under the Clinton administration.

Ability to serve victims without impeding the function of colleges and universities: Rather than rescinding federal funding to schools involved in sexual harassment inquiries, OCR pressures schools to negotiate legally binding agreements by subjecting them to expensive investigations that last years and threaten their reputation. And according to a Boston-based Victim Rights Law Center, it “utterly fails to provide remedies to individual victims.”

Melnick recommends using standard notice-and-comment rulemaking as a first step in overcoming the “reckless form of demagoguery” used by OCR in the past and the Trump administration today.

For more details, read “Rethinking Federal Regulation of Sexual Harassment on Campus: The need for deliberation, not demagoguery, in the Age of Trump” by R. Shep Melnick, available now on www.educationnext.org.

About the Author: R. Shep Melnick is the Thomas P. O’Neill Jr. Professor of American Politics at Boston College and author of The Transformation of Title IX: Regulating Gender Equality in Education (Brookings Institution Press, forthcoming).

About Education Next: Education Next is a scholarly journal committed to careful examination of evidence relating to school reform, published by the Hoover Institution at Stanford University and the Harvard Program on Education Policy and Governance at the Harvard Kennedy School. For more information, please visit www.educationnext.org.

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