Comments Letter

TRENTON – Acting Attorney General Matthew J. Platkin today led a multi-state coalition in supporting a proposed rule by the U.S. Department of Education (DOE) that would expand and strengthen federal protections against discrimination on the basis of sex, including against sexual violence and harassment, in federally funded elementary schools, secondary schools, and post-secondary institutions.

In a letter sent today to U.S. Secretary of Education Miguel Cardona, Acting Attorney General Platkin joined California Attorney General Rob Bonta and Pennsylvania Attorney General Josh Shapiro in co-leading a group of 20 Attorneys General supporting the proposed rule.

As the letter to the U.S. Secretary of Education explains, the proposed rule would strengthen the existing rules implementing Title IX, a landmark federal statute that promotes gender equity and provides important protections against sex discrimination in schools.  If enacted, the proposed rule would reverse critical flaws in the Trump Administration’s 2020 amendments to the rules implementing Title IX.  The letter explains that the Trump Administration’s 2020 amendments, which abruptly deviated from over three decades of consistent federal implementation of Title IX, substantially weakened protections for sexual harassment victims and undermined the basic purposes underlying Title IX’s protections against sex discrimination.

Among other things, the rule proposed by the U.S. Department of Education makes clear that Title IX’s prohibitions against sex-based discrimination include discrimination based on sexual orientation, sexual stereotypes, pregnancy or pregnancy-related conditions, and gender identity.

It also provides comprehensive standards for all forms of sex-based discrimination and eliminates the onerous and cumbersome procedures for sexual harassment proceedings imposed by the Trump Administration’s 2020 amendments.

These changes are necessary to protect victims of sexual harassment and ensure that Title IX meets the needs of all schools and students.

In their letter, Acting Attorney General Platkin and the other Attorneys General describe the proposed rule as “much needed” and an important remedy for the harm caused to schools and communities by the Trump Administration’s 2020 rulemaking.

“Here in New Jersey, we are deeply committed to ensuring that our schools are free from discrimination, and that no student ever lives in fear of being victimized by harassment or sexual violence,” said Acting Attorney General Platkin. “That’s why I am proud to lead a coalition of Attorneys General in supporting the U.S. Department of Education’s proposal to strengthen the protections afforded by Title IX, a landmark federal law that bars sex discrimination in education.  The proposed rule will undo the Trump Administration’s damaging attempts to gut Title IX, and I look forward to the proposed rule’s swift adoption.”

“We support the efforts of Acting Attorney General Matthew Platkin and his colleagues nationwide to strengthen federal protections against sexual discrimination and harassment of students in educational settings,” said Dr. Angelica Allen-McMillan, Acting Commissioner of Education. “It is our obligation to ensure students are provided safe and equitable learning environments.”

“All students deserve to feel safe and supported in their chosen learning environments. At the state level, we’ve made this a priority with the creation of the Campus Sexual Assault Commission, by initiating a new climate survey requirement, and by advocating for changes to the 2020 amendments, ​in addition to ​other initiatives” said Dr. Brian K. Bridges, Secretary of Higher Education.  “The proposed changes to Title IX help expand the protections our students deserve so they can focus on completing their degrees and building their future.”

“The New Jersey Division on Civil rights is committed to continuing to ensure schools safeguard students from sexual harassment and violence, guaranteeing educational opportunities for students regardless of gender, and preventing actions based on gender stereotypes,” said Division on Civil Rights Deputy Director Rosemary DiSavino. “The DOE’s proposed rule restores Title XI’s strength, and better ensures federal protections align with rights guaranteed under the New Jersey Law Against Discrimination, which plainly protects against discrimination and harassment based on sex, sex stereotypes, pregnancy, breastfeeding, sexual orientation, gender identity, and gender expression, in all public and non-religious private New Jersey schools.”

Today’s letter explains that the proposed DOE rule, if enacted, would reverse the harms imposed by the Trump Administration’s 2020 amendments by ensuring that sexual harassment complaints are no longer subject to heightened standards and quasi-criminal processes.

The 2020 amendments had diluted the protections Title IX affords to sexual harassment victims and burdened schools with courtroom-like Title IX proceedings.

The proposed rule would still allow schools to hold live hearings in sexual misconduct cases, but unlike the 2020 rules, it would no longer require them to do so.  It would also allow, but not require, cross-examination in such hearings.

The rule would also give schools authority to investigate and punish sexual assaults that take place off-campus.

Importantly, the rule also would remove a provision from the Trump-era amendments that explicitly preempted certain state and local laws — even when those laws provided greater protections than the ones afforded by Title IX.

The proposed rule does not entirely discard the 2020 amendments.  For example, schools would still be required to presume accused students innocent until grievance procedures ended. In addition, the proposed rule would still permit sexual misconduct complaints to be resolved informally if both the accuser and the accused agree.

For the most part, however, the proposed rule rolls back the 2020 amendments, which were assailed by New Jersey and other states—as well as by advocates for sexual assault survivors and civil rights groups –as inequitable and harmful.

The letter sent today marks the latest chapter in New Jersey’s ongoing fight to ensure that Title IX remains an effective bulwark against sex discrimination across the country.  In June 2020, New Jersey joined California and Pennsylvania in co-leading a multi-state lawsuit that opposed the 2020 amendments to the regulations implementing Title IX.

Among other arguments, the States contended that the 2020 amendments inappropriately narrowed the definition of sex-based harassment and imposed burdensome new procedural requirements on schools in dealing with sexual assault and harassment complaints.  The states argued that such changes had the potential to discourage students from reporting sexual violence or harassment at a time when DOE itself had documented a “troubling rise” in sexual assaults in K-12 public schools.

###