Constitution of America, We the People.
Cornell University does not plan to submit official comments in response to the Department of Education’s new Title IX rule.
Background on the new regulations
In early June, President Biden’s Department of Education issued new regulations on the interpretation of Title IX. The department put forth several changes to the existing rules, removing requirements for live hearings and cross-examination. Furthermore, the agency said that the regulations would “[clarify] that Title IX’s protections against discrimination based on sex apply to discrimination based on sexual orientation and gender identity.”
Critics of these latest changes argue that the current administration is removing due process protections created by former education secretary Betsy DeVos. In a June piece in Tablet, Brooklyn College history professor K.C. Johnson noted that the Biden rule would allow investigators to “initially provide only a ‘written investigative report that accurately summarizes’ the ‘relevant’ evidence,” instead of mandating that institutions provide evidence gathered.
Notice-and-comment
As the Review noted this summer, the Department of Education will be accepting formal comments through September 12, 2022. Under the Administrative Procedures Act, legally binding regulations must go through a “notice and comment” process. In other words, members of the public should be given the opportunity to provide their opinions on an agency’s new rule.
Some conservative groups have urged citizens to submit public comments against the proposed changes. The Conservative Action Project said, “We encourage concerned citizens, parents, and students to submit public comments in opposition to the administration’s radical Title IX rewrite and urge lawmakers to utilize every tool and legislative option available to rescind this regulation upon implementation.”
In total, the Department of Education has received over 132,000 comments from individuals and groups at www.regulations.gov. However, Cornell University will not be joining them. In an email interview with the Cornell Review, university general counsel Donica Thomas Varner said, “The university does not plan to submit comments in response to the Department of Education Office of Civil Rights’ Title IX Notice of Proposed Rulemaking.”
Cornell will, instead, “review, and support comments submitted on behalf of higher education industry groups such as the Association of American Universities (AAU) and the American Council Education (ACE),” according to Varner.
What about Cornell’s wider policies?
In the email interview with the Cornell Review, it seems that the university reaffirmed its commitment to non-discrimination. Varner noted, “The university has a long and ongoing commitment to prohibiting unlawful discrimination or harassment based on gender, gender identity, gender expression, and sexual orientation,” citing Policy 6.4 and the Cornell’s Equal Education and EO Statement. Additionally, as I noted in July, the university’s non-discrimination policy covers protections of “‘sex, sexual orientation, gender identity and expression.’”
However, much remains uncertain in the realm of due process protections. As the Review reported in June, the Second Circuit Court reinstated a physics professor’s lawsuit against Cornell. The professor’s lawsuit alleged that he was denied tenure on the basis of unproven sexual assault allegations.
In finding for the professor, Circuit Judge Jose Cabranes wrote that the faculty member’s “allegations, if supported by evidence, provide one such example of the brutish overreach of university administrators at the expense of due process and simple fairness.” Cabranes added that the allegations “if corroborated, would reveal a grotesque miscarriage of justice at Cornell University.”
With significant changes to the Title IX protections and this most recent court finding, it remains to be seen what the proposed rule would mean for due process at Cornell.
