I left the following comments on www.regulations.gov earlier today concerning the proposal of the Department of Education to enable sexual harassment in education without fear of the Department asking for damages to enforce the law. You can leave your own comments at any time between now and the end of the deadline on Monday, January 28, 2019. If you speak up and leave a comment, then by law even the current Federal administrative state is required to hear you. I urge you to make your voice heard!
January 27, 2019
Department of Education
RE: Comment to Docket ID ED-2018-OCR-0064
RIN 1870-AA14
To the Department of Education:
This concerns your proposed changes to Title IX regulations that were published in the Federal Register at 83 F.R. 61462-61499. You claim the authority to make these proposals as "20 U.S.C. 1681 et seq., unless otherwise noted." 83 F.R. at 61495. This comment addresses in particular your proposal to delete existing subsection (b) from 34 C.F.R. § 106.12, published in 83 F.R. at 61496.
Although I have not found any reference to it in your proposed changes, the statute which authorizes religious organization exemptions is 20 U.S.C.A. § 1681(a)(3):
(3) Educational institutions of religious organizations with contrary religious tenets
this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization;...
Although the statute does not speak to how the Department or any other Federal agency is to know in advance whether "the application of this subsection would not be consistent with the religious tenets" of any "educational institution which is controlled by a religious organization," the existing regulations do speak to that issue. Advance knowledge of an organization's "religious tenets" claim can be determinative of whether Federal enforcers of Title IX's mandate will file or proceed with a Title IX enforcement action.
The regulation you want to eliminate is the regulation which provides that advance knowledge. It is 34 C.F.R. § 106.12(b). Subsection (b) provides in full as follows at the present time:
(b) Exemption. An educational institution which wishes to claim the exemption set forth in paragraph (a) of this section, shall do so by submitting in writing to the Assistant Secretary a statement by the highest ranking official of the institution, identifying the provisions of this part which conflict with a specific tenet of the religious organization.
In contrast to the obviously desirable result of preventing unwarranted Title IX enforcement actions to be filed by a Federal agency, thus reducing the respondents' costs and time necessary to defend enforcement actions which might otherwise be unnecessary, you recite that the current regulation is "confusing or burdensome[.]" 83 F.R. at 61482. This assertion is absurd, in the face of the obviously desirable results that are likely if not certain to follow from the current regulation. No law should be made including regulatory law which leads to an absurd result. For this reason alone, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.
Further, you do not support your proposed changes with evidence either that the current regulation "impose[s] confusing or burdensome requirements" or that your proposed elimination of the current regulation would eliminate those unevidenced "confusing or burdensome requirements[.]" For that reason, i.e., your failure to comply with the Administrative Procedures Act in this regard, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.
Moreover, it does not seem on the face of it that a letter to the Assistant Secretary would ever justifiably be characterized as either "confusing" or "burdensome." That outcome is inconceivable and, in any case, is not supported by facts. For this reason alone, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.
Finally, you are mistaken in your seeming belief that the current regulation specifies when an organization needs to make a written statement of the organization's "religious tenets." The existing regulation does not speak to when. It speaks to how. The claim must be "in writing." For example, the claim cannot be made verbally. The claim must be made in writing.
The written claim must also identify "a specific tenet of the religious organization." For example, a written claim based on nothing more than a claim to religious liberty without identifying a specific tenet of the religious organization, would not seem to be nearly enough to assert the "religious tenets" claim.
Nothing about these current requirements of the existing regulation appear to be "confusing" as understood by reasonable persons. Nothing about them reasonably appears to be "burdensome," either.
For all of these reasons, whether taken separately or together, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.
Thank you for your consideration.
Sincerely Yours,
Dennis J. Wall
Please Read The Disclaimer. ©2019 Dennis J. Wall. All Rights Reserved. Copies of these comments are being published on Sunday, January 27, 2019 both on Claims and Issues Blog, and on Claims and Bad Faith Law Blog.
Comments