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Comments on Proposed Changes to Title IX

By Edward Swidriski

In September, the AAUP submitted comments in response to the US Department of Education’s proposed amended regulations on implementing Title IX of the Education Amendments of 1972, which prohibits sex discrimination in programs and activities that receive funding from the federal government. The Department of Education’s proposed regulations seek to make several positive changes in Title IX policies and procedures, including clarifying that Title IX covers all forms of sex-based discrimination and that it prohibits discrimination based on sexual orientation and gender identity. In its comments, the AAUP praised these aspects of the proposed changes but urged the department to further amend the proposals to better advance Title IX’s broad equity goals for higher education. In particular, the AAUP focused its comments on faculty members, other academic professionals (including librarians and graduate student employees), and staff, noting that Title IX affects individuals in these positions in many important ways and that the proposed regulations must be responsive to how job categories and rank can render individuals vulnerable to sex discrimination. The AAUP stressed that the interpretation and implementation of Title IX must take place alongside careful consideration of the systemic discrimination and inequity that exists in academia and that such consideration will best occur where there is a robust commitment to shared governance and academic freedom.

To that end, the AAUP’s comments put forward several specific recommendations: the Association encouraged the Department of Education, as well as colleges and universities, to consider the recommendations made in the AAUP’s 2016 report The History, Uses, and Abuses of Title IX; it recommended that sex-based harassment policies be applied in ways that distinguish between speech protected by academic freedom and conduct that consists of unwelcome actions or unprotected speech; it recommended that the Department of Education protect due process by, among other things, rejecting the “single-investigator model” and retaining the existing prohibition on the decision-maker being the same person as the Title IX coordinator or investigator; and it recommended that the Department of Education endorse the central role of shared governance and collective bargaining in the development and implementation of Title IX at colleges and universities.

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