Perhaps you have been on vacation in some remote destination, or your attention has been diverted by other demands, like the House’s January 6 hearings, and you might be wondering: What’s new in higher ed? Plenty. Title IX of the Education Amendments of 1972 (“Title IX”) officially turned fifty on June 23, 2022. That same day, the U.S. Department of Education (“DoEd”) proposed a major re-write of the current regulations governing Title IX.
Title IX is still best known as the law enacted to remediate sex discrimination in student athletics. Yet its coverage is more far-reaching, protecting against discrimination based on sex in all education programs or activities that receive federal financial assistance. The DoEd’s stated purpose for the proposed regulations is to “better align the Title IX regulatory requirements with Title IX’s nondiscrimination mandate,” and to “clarify the obligation of all schools . . . to provide an educational environment free from discrimination on the basis of sex. . ..”
Here is a summary and our initial impressions. The proposed Title IX regulations would:
- Change some of the key definitional terms of the current regulations. This would expand the overall scope of sex-based discrimination covered by Title IX to expressly include for the first time, the proposed regulations would explicitly include sexual orientation, gender identity, sex stereotyping, sex characteristics, and pregnancy or related conditions as forms of discrimination on the basis of sex.
- Incorporate a much broader definition of what kinds of “harassment” are actionable under Title IX. The current regulations cover “sexual harassment.” The proposed regulations now use the term “sex-based harassment.” Title IX prohibitions would be extended to “all forms of sex-based harassment,” keying off the more inclusive definition above. Sex-based harassment covers unwelcome sex-based conduct “sufficiently severe or pervasive” to deny or limit a person’s ability to participate in or benefit from a school’s education program or activity. This is a move back toward the definition in place under President Obama, and in line with the definition used in Title VII sexual harassment cases. This is a notable change from the current regulations, which limit covered “sexual harassment” to conduct that is “severe, pervasive, and objectively offensive.”
- Make it clear that colleges must address harassment that occurs off-campus involving any respondent subject to the school’s disciplinary authority and harassment occurring outside of the United States when the conduct causes or contributes to a hostile environment in an educational program or activity.
- Expand the number of campus faculty and staff who must notify the Title IX office of possible sex discrimination. A school employee “who has authority to take corrective action” is required to notify the Title IX Coordinator of any possible incident of sex discrimination. For incidents involving students, the mandatory reporting requirement to the Title IX Coordinator is expanded to include employees in administrative leadership and teachers or advisors in the school’s educational programs. Other school employees are obligated to either notify the school’s Title IX Coordinator or provide the individual with the Title IX Coordinator’s contact information, while Confidential employees are obligated only to provide the individual with the Title IX Coordinator’s contact information.
- Allow students to report Title IX violations after they have left college due to an incident of sexual harassment.
- No longer mandate that colleges use live hearings and cross-examinations as a part of their Title IX grievance process, although it permits them to do so, and lessens some of the other procedural requirements for the grievance process under the current Title IX regulations.
- Make it clear that students, faculty, and staff are protected against retaliation by their college or university for making a Title IX claim or participating in the TIX process.
- Reinstate prompt timeframes for resolution of the Title IX process and requirements for regular communications with the parties regarding the status of the case.
- Allow schools to use an informal process to resolve TIX allegations in many circumstances.
So, what happens next?
The proposed Title IX regulations comprise more than seven hundred pages of text. They are subject to a 60-day public comment period. Many will recall that back in 2018 when the Trump administration announced the current Title IX regulations, the DoEd received more than 100,000 comments from interested parties. Most anticipate a similar public interest and a comparable number of comments now.
What does this mean for your institution?
While it is difficult to say exactly how long might it take for the proposed Title IX regulations to be finalized, it not too early for institutions to begin a comprehensive evaluation of the proposed regulations and consider what changes may be needed in their current policies, practices, and procedures. We anticipate that the final regulations will closely resemble the current proposed regulations.
This blog will be updated with the details of any changes to the proposed Title IX regulations. In the interim, if you need assistance with this or any other higher education-related issues or questions for your institution, please contact Timothy Hughes, firstname.lastname@example.org, or Doug Taylor, email@example.com, or your current Bean, Kinney & Korman attorney.
This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.