On Thursday, June 23, 2022, the U.S. Department of Education released proposed changes to the Title IX regulations. The release of the amendments marks the 50th anniversary of Title IX, the federal law protecting individuals against sex discrimination in education programs and activities supported by federal funding. The proposed regulations will be open for public comment for 60 days from the date of publication in the Federal Register, which is pending.
The Department’s release of the proposed regulations follows a comprehensive review of the existing regulations, which began in March 2021, as directed by Executive Order 14021 – Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.
Major Changes in the Proposed Title IX Regulations
- Expand protections offered by Title IX: The proposed regulations explicitly protect students and employees from all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. This protection would include prohibiting an institution from adopting policies and practices that prevent a student from participating in an institution’s education program or activity consistent with their gender identity. (As discussed below, the Department will address separately student eligibility to participate in male or female athletics teams.) The proposed regulations also clarify that an institution must protect students and employees from discrimination based on pregnancy or related conditions.
- Require institutions to respond to written or verbal complaints: The proposed regulations would establish clear requirements for an institution to investigate all sex discrimination complaints, whether presented orally or in writing.
- Expand the definition of sex-based harassment: The proposed regulations still feature three categories of sexual harassment. However, they change two categories. First, quid pro quo harassment would no longer be limited to employee respondents and would include agents or others who condition aid, benefits, or services on a person’s participation in unwelcome sexual conduct. Second, a hostile environment would be defined as “Unwelcome sex-based conduct that is sufficiently severe or pervasive that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate in or benefit from the recipient’s education program or activity.” The current regulations prohibit unwelcome sex-based conduct only if it is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”
- Expand when an institution must respond to off-campus conduct, including conduct outside the United States: The proposed regulations require an institution to address sexual harassment in its education program or activity even when the harassment contributing to the hostile environment occurred outside the institution’s education program or activity or outside the United States.
- Return to proactive reporting and response requirement: The proposed regulations would require an institution to take prompt and effective action to end any prohibited sex discrimination that occurs in its education program or activity, to prevent its recurrence, and to remedy its effects. Non-confidential employees at elementary schools or secondary schools will be required to report conduct that may constitute sex discrimination to the Title IX Coordinator. At a postsecondary institution, employees with authority to take corrective action or who are responsible for administrative leadership, teaching, or advising in the institution’s education program or activity, will be required to report to the Title IX Coordinator information pertaining to students or employees who have been subjected to conduct that may constitute sex discrimination. All other non-confidential employees at a postsecondary institution will be required to either notify the Title IX Coordinator of employee or student sex discrimination, or provide individuals who inform them of conduct that may constitute sex discrimination with the Title IX Coordinator’s contact information or with reporting information.
- Expand who may file a complaint of sex discrimination: Students, employees and individuals who suffered conduct that could constitute sex discrimination while they were participating or attempting to participate in the institution’s education program or activity will be able to file complaints. Individuals will be able to file a Title IX sex discrimination complaint even if they chose to leave the institution’s education program or activity because of the discrimination or for other reasons. Currently, the regulations limit the Title IX complaint process to current students or employees or to individuals attempting to participate in the institution’s education program or activity. The proposed regulations would also allow third parties to report sex discrimination, but the complainant under the proposed regulations is defined at the individual who is alleged to have been subjected to the sex discrimination, not the third party reporter.
- Eliminate live hearings, including cross-examinations for post-secondary institutions: The proposed regulations will require an institution to have a process for a decision-maker to assess the credibility of parties and witnesses, if necessary, through live questions by the decision-maker, but the proposed regulations will not require cross-examination by the parties. Accordingly, an institution may determine that its Title IX grievance process is fair and reliable without a live hearing and cross-examination, which are required under the current regulations.
- Revise retaliation protections: The proposed regulations clarify that Title IX protects a person from retaliation, including peer retaliation. The proposed regulations define retaliation as “intimidation, threats, coercion, or discrimination against anyone because the person has reported possible sex discrimination, made a sex-discrimination complaint, or participated in any way in a recipient’s Title IX process.” The proposed regulations define peer retaliation as “retaliation by one student against another student.” Retaliation will no longer protect individuals from action for refusing to participate in any manner in an investigation, proceeding, or hearing. In other words, an institution will be able to discipline individuals for failing to cooperate in the investigation process.
Foreshadowing Of Additional Title IX Regulations Regarding Athletics
The Department of Education has stated it will engage in a separate rulemaking process to address Title IX’s application in the context of athletics and, in particular, what criteria an institution may use to establish student eligibility to participate on a particular male or female athletic team.
Individuals and institutions are encouraged to provide a public comment to the new proposed regulations once they are published in the Federal Register. The unofficial version of the proposed regulations, a press release inviting public comment, a summary with background information, and a fact sheet published by the Department are found on OCR’s website and can be accessed via this link: https://www.ed.gov/news/press-releases/us-department-education-releases-proposed-changes-title-ix-regulations-invites-public-comment?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term.
Until the Department completes the formal rulemaking process and implements any revised regulations, the current regulations, which became effective on August 14, 2020, remain in effect. An institution’s obligations to address sex- and gender-based harassment and discrimination stem from a variety of sources under federal and state law. To the extent state law and regulations do not conflict with the current Title IX regulations, an institution must follow both. In the event a state law or regulation conflicts with the current Title IX regulations, an institution must follow Title IX.
LCW will be publishing policies, procedures, and forms to assist our clients in complying with the new regulations once they become effective. If your institution needs assistance in complying with federal and state laws protecting students and employees against sex discrimination and harassment, please contact one of our five offices statewide.