The proposed regulations clarify that Title IX’s prohibition on sex discrimination applies to all sex discrimination occurring both under a recipient’s education program or activity.

On the 50th anniversary of Title IX of the Education Amendments of 1972, a civil rights statute mandating equity in education access, the U.S. Department of Education released a Notice of Proposed Rulemaking (NPRM) making significant changes to Title IX implementing regulations. Title IX regulations have been a lightning rod of political polarization and, perhaps because of that, the Department chose to defer regulating on the most controversial Title IX topic: transgender rights under Title IX. We will have to await the Department’s positioning on that aspect of the regulations. For now, this is what we know:

The proposed rule is expected to be published in the Federal Register the week of June 27, 2022. Following publication, interested parties will have 60 days to submit public comment. The changes will have a material impact on educational institutions receiving federal funding (so-called recipients in the NPRM) and require close attention by Title IX Coordinators and others with responsibility for overseeing Title IX compliance. For maximum effect, comments should clearly identify the specific section or sections of the proposed regulations that the comment addresses and arrange comments in the same order as the proposed regulations. Comments must be submitted via the federal eRulemaking Portal.

In short, the proposed regulation significantly revises the current rule and aims to ensure full protection under Title IX for students, teachers and employees from all forms of sex discrimination, including sex-based harassment and sexual violence, in federally funded elementary schools, secondary schools and postsecondary institutions.

The NPRM states that the Department heard two overarching concerns from students, parents, recipients, advocates and other concerned stakeholders in its stakeholder outreach. First, greater clarity is needed on how to ensure that complaints of sex-based harassment are resolved in a prompt and equitable manner. Second, the current regulations (effective August 14, 2020) do not adequately clarify or specify the scope of sex discrimination prohibited by Title IX. The Department’s proposed regulations attempt to address those overarching concerns.

Summary

Below is a summary of proposed changes that have significant impact on educational institutions subject to Title IX. The full text of the unofficial version of the proposed rule is also available.

Provisions of General Applicability

The Department proposes changing certain definitions in the current regulations and adding others. The new definition is for the term “student with a disability.” Revised definitions include “applicant,” “elementary school,” “secondary school,” “postsecondary institution” and “Title IX.”

The proposed regulations clarify that Title IX’s prohibition on sex discrimination applies to all sex discrimination occurring both under a recipient’s education program or activity. The proposed regulations would make clear that conduct that occurs under a recipient’s education program or activity includes, but is not limited to, conduct that occurs in a building owned or controlled by a student organization that is officially recognized by a postsecondary institution and conduct that is subject to the recipient’s disciplinary authority. In addition, an education program or activity for purposes of Title IX would include buildings or locations that are part of the school’s operations, including online learning platforms. Further, the proposed regulations would require an institution to address a hostile environment occurring within the recipient’s education program or activity, even if the underlying sex-based harassment contributing to the hostile environment does not occur in the recipient’s education program or activity or occurs outside the United States.

Prohibiting All Forms of Sex Discrimination

Most significantly, the proposed regulations would prohibit all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity. In light of the United States Supreme Court’s decision overturning Roe v. Wade, which limits women’s abortion rights in some states, educational institutions should be prepared to manage and adapt to the potential for increased demand for students seeking to balance pregnancy/early child care and education without discrimination under Title IX.

An institution would be required to apply its Title IX policy and grievance procedure to complaints of sex-based discrimination, not just sexual harassment complaints. The proposed regulations define sex-based harassment to include sexual harassment, harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.

Moving away from the narrow definition of sexual harassment in the current regulations, the proposed regulations include a definition for sex-based harassment that creates a hostile environment—unwelcome sex-based conduct that is sufficiently severe or pervasive enough that, based on the totality of the circumstances and evaluated both 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 proposed regulations would continue to prohibit quid pro quo harassment but expand the definition to encompass “agents or other persons authorized by the recipient to provide an aid, benefit, or service under the recipient’s education program or activity.” This would include persons who supervise clinical externships. The proposed regulations would also continue to prohibit sexual assault, dating violence, domestic violence and stalking, and incorporate associated federal definitions into the regulations.

The NPRM discusses the Department’s strategy to align the hostile environment category of sex-based harassment more closely with how hostile environment sexual harassment is defined by courts and the Equal Employment Opportunity Commission under Title VII in the employment context, given that recipients must comply with both laws and both Title VII and Title IX covered employees. The NPRM states that whether a hostile environment has been created is a fact-specific inquiry and requires analyzing the conduct and its effect on the complainant. The proposed regulations identify factors to consider when determining whether a hostile environment based on sex exists.

Discrimination Based on Sexual Orientation, Gender Identity and Sex Characteristics

The proposed regulations would codify for the first time that Title IX prohibits discrimination based on sexual orientation, gender identity and sex characteristics. Institutions would be prohibited from maintaining policies and procedures that prevent a student from participating in the education program or activity consistent with their gender identity.

New Definitions

The proposed regulations modify several definitions under the current rule, such as “complainant,” “respondent” and “supportive measures” and include new definitions for several terms including “retaliation,” “peer retaliation,” “disciplinary sanctions” and “remedies.” The regulations also replace “formal complaint” with “complaint,” no longer requiring a complaint be made in writing.

Off-Campus Conduct

The current regulations do not require an institution to address sexual harassment that occurred outside of the institution’s education program or activity or outside of the United States. The proposed regulations expand an institution’s responsibility to address a sex-based hostile environment occurring outside of the education program or activity (or outside of the United States) when the incident(s) creates a sex-based hostile environment within the education program or activity. Under the proposed regulations, conduct that occurs in an institution’s education program or activity includes: (1) conduct that occurs in any building owned or controlled by a student organization that is officially recognized by a postsecondary institution; and (2) conduct that occurs off-campus when the respondent is a representative of the institution or otherwise engaged in conduct other under the institution’s disciplinary authority.

Reporting Sex Discrimination

The proposed regulations expand the type of employee at a postsecondary institution required to notify the Title IX Coordinator of conduct that may constitute sex discrimination under Title IX. “An employee or other recipient who has authority to take corrective action or, for incidents involving students, has responsibility for administrative leadership, teaching, or advising in the recipient’s education program or activity” would be obligated to notify the Title IX Coordinator. All other employees (except confidential employees) would be obligated to notify the Title IX Coordinator or provide an individual with the Title IX Coordinator’s contact information and information about reporting.

The proposed regulations require all employees to be trained on the institution’s obligation to address sex discrimination in its education program or activity, the scope of the conduct that constitutes sex discrimination (including the definition of sex-based harassment) and the applicable notification and information requirements.

Social Media

The NPRM states that the Department does not expect that an institution will follow online activity of its students that is not part of the education program or activity. However, the Department clarifies that an institution does have an obligation to address online sex-based harassment among its students when an employee has information regarding such conduct and the harassment created a hostile environment in the education program or activity.

Filing a Complaint

The current regulations limit the filing of a complaint of sexual harassment to the complainant or Title IX Coordinator and further require that the complainant is participating or attempting to participate in the institution’s education program or activity. Under the proposed regulations, a complainant would be protected to file a complaint (about sex discrimination they experienced) even if they have withdrawn from the institution because of the discrimination or for other reasons. The Title IX Coordinator is responsible for monitoring barriers to reporting information about conduct that may constitute sex discrimination. The institution would then need to take steps to address the identified barriers. The NPRM states that an institution may use various strategies to identify barriers such as:

[C]onducting regular campus climate surveys, seeking targeted feedback from student and employees who have reported or made complaints about sex discrimination, participating in public awareness events for purposes of receiving feedback from student and employee attendees, or regularly publicizing and monitoring an email address designated for receiving anonymous feedback about barriers to reporting sex discrimination.

Responding to Sex Discrimination

The current regulations only require an institution to respond to possible sexual harassment when the institution has actual knowledge. The proposed regulations expand an institution’s responsibility to take prompt and effective action to end any prohibited sex discrimination that has occurred in its education program or activity, prevent its reoccurrence and remedy its effects. An institution would be required to ensure that its Title IX Coordinator take the following steps upon being notified of possible sex discrimination:

• Treat the complainant and respondent equitably at every stage of the institution’s response.
• Notify the complainant of the recipient’s grievance procedures and, if a complaint is made, notify the respondent of the grievance procedures, and notify the parties of the informal resolution process, if any.
• Offer and coordinate supportive measures, as appropriate, to the complainant and respondent.
• Initiate the recipient’s grievance procedures or informal resolution process.
• In the absence of a complaint or informal resolution process, determine whether to initiate a complaint of sex discrimination if necessary to address conduct that may constitute sex discrimination under Title IX in the institution’s education program or activity.
• Take other appropriate, prompt and effective steps to ensure that sex discrimination does not continue or recur in the recipient’s education program or activity, in addition to providing remedies to an individual complainant.

Grievance Procedures

The current regulations include detailed requirements for grievance procedures for complaints of sexual harassment. The proposed regulations adapt current regulations to apply to all complaints of sex discrimination and include additional changes addressing contexts of employees and third parties. Institutions would be required to adopt written grievance procedures, including the following:

• General requirements:
  • Equitable treatment of complainants and respondents.
  • Title IX Coordinator, investigators and decision-makers must not have conflicts of interest or bias.
  • Decision-maker may be the same person as the Title IX Coordinator or investigator.
  • A presumption that the respondent is not responsible until a determination is made at the conclusion of the grievance procedures.
  • Reasonably prompt timeframes for all major stages.
  • Reasonable steps to protect privacy of parties and witnesses.
  • Objective evaluation of relevant and not otherwise impermissible evidence. (The proposed regulations included a definition for “relevant.”)
• Notice of the allegations to the parties.
• Dismissals permitted in certain circumstances, but not required.
• Consolidation permitted for complaints arising out of the same facts or circumstances.
• Investigation requirements:
  • Burden is on the recipient to gather sufficient evidence.
  • Equal opportunity for all parties to present relevant fact witnesses and other evidence.
  • Determination by the decision-maker of what evidence is relevant and what evidence is impermissible.
  • A description provided to the parties by the recipient of the relevant and not otherwise impermissible evidence, as well as a reasonable opportunity to respond.
• A process that enables the decision-maker to assess the credibility of the parties and witnesses when credibility is in dispute and relevant.
• Clear processes for the determination of whether sex discrimination occurred, including:
  • Determining whether sex discrimination occurred using the preponderance of the evidence standard of proof (unless the clear and convincing evidence standard is used in all other comparable proceedings).
  • Notifying parties of the outcome of the complaint and any opportunity to appeal.
  • When there is a determination that sex discrimination occurred, the Title IX Coordinator provides and implements remedies for the complainant or others whose access to the recipient’s education program or activity has been limited or denied by sex discrimination and takes other appropriate, prompt and effective steps to ensure that sex discrimination does not continue or recur.
  • The grievance procedures are completed before imposing any sanctions.
  • A recipient is prohibited from disciplining a party, witness or other participant for making a false statement or for engaging in consensual sexual conduct based solely on the determination of whether sex discrimination occurred.
• Parties are permitted to choose to participate in an informal resolution process if one is provided by the institution.
• Grievance procedures must describe the range of possible supportive measures and a range or list of disciplinary sanctions and remedies for sex-based harassment complaints.
• Additional procedures (most of which are contained in the current regulations) are required for complaints of sex-based harassment involving a student complainant or student respondent, including:
  • Written notice to the parties of allegations, dismissal, delays, meetings, interviews and hearings.
  • Opportunity to have an advisor of the party’s choice at any meeting or proceeding.
  • Equitable access to relevant and not otherwise impermissible evidence or to a written report summarizing the evidence.
  • Permitting, but not requiring, a live hearing. When a live hearing is permitted, a recipient must allow the parties, on request, to participate from separate locations using technology.
  • A process to assess credibility of parties and witnesses, when necessary, that includes either:
    • Allowing the decision-maker to ask relevant and not otherwise impermissible questions in a meeting or at a live hearing and allowing the parties to propose relevant and not otherwise impermissible questions for the decision-maker or investigator to ask during a meeting or live hearing.
    • Allowing an advisor for each party to ask relevant and not otherwise impermissible questions to other parties and any witnesses during a live hearing.
  • Not permitting questions that are unclear or harassing of the party being questioned.
  • Not relying on a statement of a party that supports that party's position if the party does not respond to questions related to their credibility, and not drawing an inference about whether sex-based harassment occurred based solely on a party's or witness' refusal to respond to questions related to their credibility.
  • Providing written notice of the determination that includes a description of the allegations, information about the policies and procedures used to evaluate the allegations, the decision-maker’s evaluation of the relevant evidence and determination of whether sex-based harassment occurred, disciplinary sanctions and remedies, if relevant, and information about appeal procedures.
  • Providing an opportunity to appeal based on procedural irregularity, new evidence and conflict of interest or bias, as well as any other bases offered equally to the parties by the recipient.

While one of the biggest apprehensions postsecondary education institutions faced under the current regulations—live hearings—is now optional, the proposed regulations significantly increase the application of the Title IX grievance procedure and an intuition’s responsibility to respond and act.

Informal Resolution

Current regulations permit informal resolution if a formal complaint has been received. The proposed regulations permit an institution to utilize informal resolution whenever it receives a complaint of sex discrimination or has information regarding conduct that may constitute sex discrimination. As with the current regulations, informal resolution participation must be voluntary and is not permitted in situations where an employee is accused of sex discrimination against a student.

Discrimination Based on Pregnancy or Related Conditions

The proposed regulations clarify that institutions must protect students and employees from discrimination based on pregnancy or related conditions. This includes providing reasonable modifications for students, reasonable break time for employees for lactation and lactation space for both students and employees. An institution is also responsible for ensuring that when a student (or their guardian or legal representative) tells an employee of the pregnancy or related conditions, the student receives information on how to contact the Title IX Coordinator. Once the student contacts the Title IX Coordinator, the coordinator must:

• Provide the student with the option of individualized, reasonable modifications as needed.
• Allow the student a voluntary leave of absence for medical reasons and reinstatement upon return.
• Provide the student a clean, private space for lactation.

Additional Changes

The Department proposes adding a provision to clarify the scope of Title IX’s coverage of specific forms of sex discrimination including discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.

Regarding sex discrimination in sports, the Department did not propose any changes. Rather, the Department stated that it plans to issue a separate NPRM to address whether and how it should amend regulations regarding sex-separate athletics. This includes determining what criteria, if any, recipients should be permitted to use to establish students’ eligibility to participate on a particular male or female athletics team.

Finally, the Department invited comments to directed questions on the following topics:

1. The intersection between the proposed Title IX regulations and the Family Educational Rights and Privacy Act, any challenges that recipients may face as a result of the intersection between the two laws, and any steps the Department might take to address those challenges in the Title IX regulations.
2. Whether and how any of the proposed grievance procedures should apply differently to various subgroups of complainants or respondents, such as students or employees, or students at varying educational levels.
3. Specific experiences from persons who were parties or served as an advisor to a party to a complaint that was investigated and resolved by a recipient using a single investigator model.
4. The standard of proof, including: steps that recipients have taken to ensure equitable treatment between parties; different standards of proof in employee-on-employee sex discrimination; and mandating the use of only one standard of proof for all sex discrimination complaints.

For More Information

If you have any questions about this Alert, please contact Katherine D. Brodie, Edward Cramp, Kristina Gill, Jessica S. High, Jonathan Helwink, any of the attorneys in our Education Industry Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.