March 25, 2020
Dear Secretary DeVos, Acting Director Vought, Assistant Secretary Marcus, and Administrator Ray:
In light of the current novel coronavirus (COVID-19) pandemic and the recently declared national emergency, the National Women’s Law Center and the undersigned 209 survivor advocacy organizations, civil rights organizations, and educational institutions and membership organizations call on the Department of Education (the Department) and the Office of Management and Budget (OMB) to suspend the rulemaking process for the proposed regulations implementing Title IX of the Education Amendments of 1972 (Title IX) entitled Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, RIN 1870-AA14 (“proposed rule”). We urge that the Department and OMB pause this rulemaking process until after the national emergency declared on March 13, 2020 has ended and both institutions of higher education and K-12 schools have resumed their regular operations.
Due to the rapid spread of COVID-19, students and schools across the United States are confronting an increasingly dire public health crisis that has not yet reached its worst. As of this writing, there have been more than 44,000 cases and more than 500 deaths reported in all 50 states, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands. More than 90 percent of the country’s public and private K-12 schools have closed or are scheduled to close, including due to statewide closures in 46 states. Hundreds of colleges and universities have moved to online-only instruction, and many institutions have required students to vacate their dorms. Simultaneously, as a result of widespread business closures and disruptions, students and their families are struggling to provide for basic needs such as food, housing, utilities, health care, childcare, and (critically for telework and distance learning) internet access, while seeking to maintain income and keep up with obligations such as rent and loan repayment. As schools scramble to create online resources and systems and otherwise reinvent themselves to meet this moment, they are also simultaneously channeling their resources to help meet these student needs in an unprecedented time of crisis.
Given the lack of available institutional resources for schools to review and implement new requirements and the ongoing stresses on students, it is necessary to suspend this Title IX rulemaking—and indeed, all non-emergency rulemaking. The unprecedented challenges arising from this pandemic will continue to require significant school resources and will continue to create tremendous upheaval of students’ and school employees’ lives. Moving forward now with a new Title IX rule would only exacerbate these challenges by diverting schools’ already sharply limited resources toward creating complex new policies and training employees on implementation, at a time when schools are already working to radically shift their programs and meet student needs, even while staff operate remotely. Finalizing the proposed rule would also unnecessarily exacerbate confusion and uncertainty for students who are currently in pending Title IX investigations and hearings, which have already been delayed and disrupted by the pandemic.
Moreover, in this time of crisis, the Department should be utilizing its limited time and resources to provide much-needed relief for students and schools—not to codify a proposed rule that would make it extremely difficult, confusing, and in some cases impossible for institutions to ensure that students feel safe in school and have their Title IX complaints handled in an adequate, reliable, and impartial manner. Now is hardly the right time to push forward with this fundamentally flawed rule, particularly when so many schools, students, and families urgently require the Department’s assistance in order to meet basic needs. Indeed, last week Acting Director Vought issued a White House memo instructing all federal agencies to “prioritize all resources to slow the transmission of COVID-19.” Undoubtedly, finalizing the Title IX rule during this national emergency would be inconsistent with that directive.
Accordingly, we urge in the strongest terms that the Department and OMB suspend the rulemaking process for the proposed Title IX sexual harassment rule until after the national emergency for COVID-19 has come to an end and schools have resumed their regular operations. For questions, please contact Shiwali Patel (firstname.lastname@example.org) and Elizabeth Tang (email@example.com) at the National Women’s Law Center.