Jeannie Suk Gersen, Nancy Gertner & Janet Halley, Comment on Proposed Title IX Rulemaking (Jan. 30, 2019).
Abstract: Jeannie Suk Gersen, Nancy Gertner, and Janet Halley, professors at Harvard Law School, have issued a Comment on the Department of Education’s Proposed Rule on Title IX enforcement. The authors write: “We strongly support vigorous enforcement of Title IX to ensure that students enjoy educational programs and activities unburdened by sexual harassment.” They argue that “sanctions for sexual harassment should apply only under a clear definition of wrongful conduct and after a process that is fair to all parties.” With these dual objectives in mind, the Comment reviews the Department of Education’s Proposed Rule and agrees with some aspects and disagrees with others. The authors agree (with some suggested amendments) with the Rule’s treatment of the burden of proof, the rejection of the single-investigator model, and the requirement of a live hearing process. They argue that the rules they endorse do not undermine the critical goal of enforcing Title IX. They express serious concerns about the provisions on cross examination and the definition of sexual harassment, and propose revisions that will be more protective of complainants. The Comment strongly objects to provisions encouraging schools to file complaints when they have multiple allegations against a single potential respondent but no formal complainant: the inquiry there should be refocused on the threat of harm and take into account the complainants’ as well as the respondents’ interests. The three professors say that they “strongly object to the deliberate indifference standard for schools’ ultimate responsibility to respond to sexual harassment.” Gersen, Gertner and Halley have researched, taught, and written on Title IX, sexual harassment, sexual assault, and feminist legal reform. They were three of the signatories to the statement of twenty-eight Harvard Law School professors, published in the Boston Globe on October 15, 2014, that criticized Harvard University’s newly adopted sexual harassment policy as “overwhelmingly stacked against the accused” and “in no way required by Title IX law or regulation.”