Title IX Celebrates 50 Years and the U.S. Department of Education Releases Proposed Changes to Title IX Regulations

June 23, 2022, marked the 50-year anniversary of Title IX, as well as the release date of the U.S. Department of Education’s (USDOE) long-awaited proposed changes to the Title IX regulations for federally funded elementary schools, secondary schools, and postsecondary institutions.

In a press release from the USDOE, the Department stated that the proposed regulations will advance Title IX’s goal of ensuring that no person experiences sex discrimination, sex-based harassment, or sexual violence in education. The regulations will strengthen protections for LGBTQI+ students who face discrimination based on sexual orientation or gender identity and protect students and employees from all forms of sex discrimination, including discrimination based on sexual orientation, gender identity, sex stereotypes, and pregnancy.

Some of the major highlights of the proposed regulations would:

• Change the definition of harassment that creates a hostile environment to unwelcome sex-based conduct that is sufficiently severe or pervasive that, based on the totality of the circumstances and evaluated subjectively and objectively, it 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.
• Allow schools to address off-campus sex-based conduct that creates or contributes to a hostile environment in an educational program or activity.
  • The current regulations do not require schools to address a sex-based hostile environment in their education program or activity if the hostile environment results from sex-based harassment that happened outside of the school’s education program or activity or occurred outside of the United States.
• Protect students and employees who are pregnant or have pregnancy-related conditions.
  • The proposed regulations would update existing protections for students, applicants, and employees against discrimination because of pregnancy or related conditions. The proposed regulations would strengthen requirements that schools provide reasonable modifications for pregnant students, reasonable break time for pregnant employees, and lactation space.
• Protect the right of parents and guardians to support their elementary and secondary school children.
  • The proposed regulations would strengthen clear protection for parents, guardians, and other authorized legal representatives of students to act on behalf of a student, including by seeking assistance under Title IX and participating in any grievance procedures.
• Require schools to respond promptly to all complaints – both informal and formal – of sex discrimination with a fair and reliable process that includes trained, unbiased decision makers to evaluate the evidence.
• Require schools to provide supportive measures to students and employees affected by conduct that may constitute sex discrimination, including students and employees who have brought complaints or been accused of sex-based harassment.
  • The current regulations require supportive measures only when sexual harassment, rather than any form of sex discrimination, might have occurred.
• Protect LGBTQI+ students from discrimination based on sexual orientation, gender identity, and sex characteristics.
  • The Department plans to issue a separate notice of proposed rulemaking to address whether and how the Department should amend the Title IX regulations to address students’ eligibility to participate on a particular male or female athletic team.
• Improve the adaptability of the Title IX grievance procedure requirements so that all schools can implement Title IX’s promise of nondiscrimination fully and fairly in their educational environments.
  • A school’s grievance procedures for sex discrimination complaints must adapt to the age, maturity, needs, and level of independence of students in various educational settings, and the particular contexts of employees and third parties.

The proposed regulations would keep as many of the current regulations as possible to ensure consistency for schools and would update Title IX grievance procedures to fill gaps and work more effectively in protecting against sex discrimination in K-12 schools and postsecondary institutions, including:

• All schools must treat complainants and respondents equitably.
• Schools have the option to offer informal resolution for resolving sex discrimination complaints, if participation is voluntary, and the Respondent is not an employee accused of sex discrimination against a student.
• Title IX Coordinators, investigators, decision makers, and facilitators of an informal resolution process must not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.
• A school’s grievance procedures must give the parties an equal opportunity to present relevant evidence and respond to the relevant evidence of other parties.
• The school’s decision makers must objectively evaluate each party’s evidence.
• The proposed regulations would not require a live hearing for evaluating evidence, meaning that if a school determines that its fair and reliable process will be best accomplished with a single-investigator model, it can use that model (i.e. the decisionmaker may be the same person as the Title IX Coordinator or Investigator).
• A school must have a process for a decisionmaker to assess the credibility of parties and witnesses through live questions by the decisionmaker. The proposed regulations would not require cross-examination by the parties for this purpose but would permit a postsecondary institution to use cross-examination if it so chooses or is required to by law.
• In evaluating the parties’ evidence, a school must use the preponderance-of-the-evidence standard of proof unless the school uses the clear-and-convincing-evidence standard in all other comparable proceedings, including other discrimination complaints, in which case the school may use that standard in determining whether sex discrimination occurred.
• A school must not impose disciplinary sanctions under Title IX on any person unless it determines that sex discrimination has occurred.

The proposed regulations, at this time, are not yet final.  The proposed regulations will be open for public comment for 60 days from the date of publication in the Federal Register. The USDOE will then need to address each comment in writing before the regulations can be finalized. In the meantime, educational institutions subject to Title IX, including colleges, universities, and K-12 schools are still subject to the Title IX Final Rule which went into effect on Aug. 14, 2020.

Clark Hill’s Education attorneys will continue to monitor the proposed Title IX regulations and issue additional information and guidance as it becomes available.  If you have any questions regarding this e-alert, please contact Kara T. Rozin (krozin@clarkhill.com) or another member of Clark Hill’s Education Practice Group.

The views and opinions expressed in the article represent the view of the authors and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is intended to be a substitute for professional legal advice.