MSU submits comments to the Department of Education regarding proposed Title IX regulations

September 11, 2022

Secretary Miguel Cardona 

U.S. Department of Education  

400 Maryland Avenue, SW 

Room 6E310 

Washington, D.C. 20202 

 

Re: Docket ID ED-2021-OCR-0166  

 

Dear Secretary Cardona,  

On behalf of Michigan State University (“MSU” or the “University”), we write to provide comments to the Department’s July 12, 2022 Notice of Proposed Rulemaking (“NPRM”), proposing amendments to the regulations implementing Title IX of the Education Amendments of 1972. With over forty full-time employees, MSU has one of the largest civil rights and Title IX offices in the country. Our civil rights and Title IX staff work diligently to prevent gender based-violence and sexual misconduct through education, outreach, and social change, as well as to address over a thousand reports that come in to the office each year. Sex discrimination is in direct conflict with our institution’s values, and MSU strives to provide an academic and work environment that fosters the values of safety, mutual respect, dignity, equity, responsibility, and clear and timely communication. 

As a member of the Association of American Universities (“AAU”), MSU adopts the comment letter submitted by AAU on behalf of its 63 member institutions.  

In addition, MSU offers the following comments based on its direct experience in implementing Title IX. 

Prospective Application of New Regulations 

Changes to the Title IX regulations must be implemented with care and time for parties and institutions to adjust. The final regulations should include a clear provision that the new definitions and standards apply only to conduct that occurs after the effective date of the final rule. The Department should also specify when new grievance procedures will apply. MSU respectfully suggests that the new procedures should apply to complaints received after the effective date, to address conduct that occurred both before and after the effective date. It is not tenable for universities to maintain different grievance procedures for conduct based on when the conduct occurred, especially given that there is no time limit for filing Title IX complaints. 

Page BreakDefinition of Sex Discrimination  

The University appreciates the specific language recognizing that Title IX bars all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. This is consistent with longstanding MSU policy prohibiting discrimination and harassment and aligns with MSU’s obligations under Title VII and Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”). The Michigan Supreme Court recently held that under ELCRA sexual orientation discrimination is discrimination “because of sex” and is therefore prohibited. Rouch World, LLC v. Michigan Dep’t of Civil Rights, No. 162482, 2022 WL 3007805 (Mich. July 28, 2022) (further noting that under Michigan case law, ELCRA prohibits discrimination based on gender identity).  

Definition of Sex-Based Harassment 

Defining “sex-based harassment” to include “unwelcome sex-based conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate in or benefit from the recipient’s education program or activity (i.e. creates a hostile environment),” (Proposed §106.2)), accords with long-standing MSU policy. The MSU community expects that this institution address conduct that creates a hostile environ-ment, and not only when it is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity,” as defined in the 2020 Title IX regulations. For this reason, as of August 14, 2020, MSU has needed to include two sets of definitions in its Relationship Violence and Sexual Misconduct and Title IX Policy: one set of definitions that outline what is prohibited by Title IX and one set of definitions that describe what is prohibited under University policy. Under the NPRM’s expanded definition, MSU would likely be able to uphold its community standards using only one set of policy definitions. The Department’s proposed language would streamline policy and provide clarity on prohibited conduct.  

Role of the Title IX Coordinator  

Responsibility for effective implementation of Title IX properly lies with the institution. Particularly at a university the size of MSU, compliance with Title IX and other civil rights laws requires the efforts and commitment of numerous community partners, in addition to the Title IX office. MSU agrees that the role of the Title IX Coordinator is essential, but should be focused on coordinating, not implementing, supportive measures (Proposed §106.44(g)(6)) and reasonable accommodations because of pregnancy or related conditions (Proposed §106.40), or taking appropriate prompt and effective steps to ensure that sex discrimination does not continue to recur (Proposed §106.44(f)(6); §106.45(d)(4)(iii)). Nor should the Title IX Coordinator have sole responsibility for monitoring the education program or activity for barriers to reporting and taking steps to address such barriers. (Proposed §106.44(b)).  

Language in the current and proposed regulations placing direct responsibility on the Title IX Coordinator or designees, rather than the recipient, ignores the reality that on a large campus many individuals and offices must work together to accomplish and implement supportive measures and pregnancy-based accommodations, and to ensure an environment free of discrimination and in which there are not barriers to reporting. In addition to placing too great a burden on one individual designated as the Title IX Coordinator, it is untenable for a university to grant a Title IX coordinator authority over all aspects of employment and academic progress that would be needed to take action themselves, or to grant supervisory authority over each person and office needed to perform these functions.  

Privacy Exceptions  

MSU requests that the Department provide an additional exception to the prohibition on disclosing the identity of a party or information about any supportive measures to allow for disclosure to a government entity as required by federal and state statute, regulation, or agency policy or grant award terms and conditions. (Proposed § 106.44(j); Proposed §106.44(g)(5)).  

Given the breadth of Part 106, MSU would also appreciate additional clarity and examples on when it would be appropriate to disclose the identity of a party “[t]o carry out the purposes of this part, including action taken to address conduct that may constitute sex discrimination under Title IX in the recipient’s education program or activity.” (Proposed § 106.44(j)(4)). 

Appeals of Supportive Measures  

The University has concerns about the language requiring a recipient to “provide a complainant or respondent affected by a decision to provide, deny, modify, or terminate supportive measures with a timely opportunity to seek modification or reversal of the recipient’s decision by an appropriate, impartial employee” who is “someone other than the employee who made the decision being challenged” and who “must have the authority to modify or reverse the decision, if appropriate.” (Proposed §106.44(g)(4)). Allowing for unlimited appeals is likely to be extraordinarily burdensome, reducing time and resources needed for other Title IX proceedings. In addition, due to the breadth of potential supportive measures and the variety of individuals and offices who might be involved in determining an appropriate supportive measure – particularly where the measure may affect academic progress in a professional degree or graduate program, or where the measure is determined by a supervisor with authority to make employment decisions – finding or granting someone with authority to change such decisions would present significant challenges.   

Confidential Employees 

MSU appreciates the clarifications regarding confidential employees. (Proposed §106.2)). We want to note that with respect to the third category of confidential employees, “an employee of a postsecondary institution who is conducting an Institu-tional Review Board-approved human-subjects research study designed to gather information about sex discrimination,” it is important that the Department maintain the broad language used in the text of the proposed regulation – “an IRB approved study” – which appropriately accounts for the studies that are approved by another institution’s IRB. Some language in the preamble refers to studies “approved by the recipient’s IRB.”  

In addition, MSU requests that the Department inform recipients whether employees conducting studies that gather information about sex discrimination but are exempt from regulation for the protection of human subjects could qualify as confidential. If a study meets an exempt criteria under human research protection regulations, the study is exempt from the IRB requirements, and the study does not need to be reviewed and approved by an IRB. 

Mandatory Reporting  

MSU reiterates the request of AAU and others that the final rule allow for institutional discretion with respect to mandatory reporting. Institutions should be able to take into account emerging scholarly research on the topic of mandatory reporting, as well as campus and community-specific needs in order to draft reporting policies that best balance claimant autonomy and the institutional obligation to maintain an environment free of sex discrimination. (Proposed § 106.44(c)(2)).  

“Unauthorized Disclosure” 

MSU suggests that the Department provide a definition for the term “unauthorized disclosure” as used with respect to the recipient’s obligation to “prevent and address any unauthorized disclosures by the parties and their advisors of information and evidence obtained solely through the sex-based harassment grievance procedures.” (Proposed §106.46(e)(6)(iii)). Without a clear definition and examples, it will be challenging for parties and advisors to determine what they have the right to disclose, including to “defend their interests” as described in Proposed § 106.45(b)(5). Universities must also have clear guidance from the Department in order to enforce this provision fairly, especially given students’ First Amendment rights.  

* * * 

MSU appreciates the opportunity to comment on the Department’s proposed amendments to the Title IX regulations.  

Sincerely, 

 

Samuel L. Stanley, Jr., M.D. 

President 

 

Karey Krohnfeldt 

Acting Associate Vice President, Office for Civil Rights and Title IX Education and Compliance 

 

Nicole Schmidtke 

Title IX Coordinator