The American Association of Community Colleges (AACC) has cosigned an amicus brief that will be filed in two cases brought by state attorneys general challenging the Trump administration’s controversial Title IX regulations.
The brief was spearheaded by the American Council on Education and cosigned by 24 other higher education associations. Absent a court order to the contrary, the regulations will take effect on August 14.
Eighteen Democratic attorneys general (AGs) have sued in the District of Columbia federal district court, and the New York attorney general is pursing its own case in the New York federal court.
The lawsuits challenge the legality of the regulations for several reasons. Among them, the AGs contend that the U.S. Education Department (ED) failed to adequately consider evidence that the complicated, legalistic grievance process that the regulations require of institutions will chill reporting of sexual harassment on campuses. The AGs also claim that the regulation’s new definition of sexual harassment is too narrow and will preclude institutions from investigating occurrences that fall within the scope of the Title IX statute.
In each case, the plaintiffs filed a preliminary motion to block ED from implementing the regulations while litigation is pending. The higher education amicus brief is in support of these motions and does not speak to the substantive cases alleged by the AGs.
Big changes, not enough time
In general, the brief states that the 87 days that institutions were given between when the regulations were officially published and when they go into effect would be woefully inadequate in any case, but especially at a time when colleges are also dealing with the tremendous challenges posed by the coronavirus pandemic.
The brief details how the regulation “requires the vast majority of [institutions] to make broad-scale and fundamental changes to a wide variety of institution-specific practices and policies,” and the massive amount of training that will be required to implement those changes.
The changes enumerated in the brief include adapting institutional policies to a new definition of sexual harassment, adoption of new grievance procedures including a live hearing with cross-examination, revision of informal resolution processes, and others.
The brief goes on to argue that this task would be nearly impossible in any year, particularly given the fact that the bulk of the time to implement is taking place over the summer. The brief then details how the pandemic’s impact on campuses makes implementing the regulations many times harder than a typical year.
It is not known yet how long the courts may take to rule on the AGs’ motions. AACC advises its members to proceed under the assumption that the regulations will take effect in August.