Past Title IX revisions – most infamously, a 2011 “Dear Colleague” letter – have arguably circumvented the federal rulemaking process demanded by the Administrative Procedure Act.
As articulated in an April 24, 2020 letter that I sent to the Department, however, the revision of the new rule strictly followed the proper process and provides for a transparent and fair implementation of Title IX. Attempts at delaying publication of the new rule, I argued, “would not only reinforce bad Title IX policy, it would also bring into question the legitimacy of the federal rulemaking process itself.”
By contrast, Title IX revisions advanced under the Obama (2011) and Clinton (2001) administrations evaded the formal rulemaking process, fueling ambiguity and inviting attempts at the state level to codify federal policies. The 2011 guidance, in particular, has been criticized for depriving the accused of due process and free speech rights. Here in Mississippi, the House has repeatedly passed legislation inspired by the Obama-era Dear Colleague letter. The latest iteration, passed in March 2020, is HB 158. This bill is double referred in the Senate. It is sponsored by House Judiciary A Chair Angela Cockerham.
Previous versions of the “Sexual Assault Response for College Students Act,” such as that passed by the House in 2017, included several problematic policies that mirrored the now-displaced federal guidance. These include: using a very low standard of evidence (preponderance) without proper procedural safeguards; limiting cross-examination of the accuser; and allowing institutions to restrict access to an attorney by the accused.
Now that the federal guidance has been finalized, Mississippi has an opportunity to revisit this issue in 2021 by passing legislation that would codify the new federal rule.
In the meantime, schools need time to digest and implement the new guidance.