Don’t Miss Your Chance to Comment on the Proposed Changes to Title IX Regulations
By Jennifer A. Powell, Shareholder
On June 23, 2022, the 50th anniversary of Title IX, the U.S. Department of Education’s Office of Civil Rights (OCR) released proposed changes to its Title IX regulations that help schools implement the law. The regulations were published in the Federal Register on July 12, 2022, with a 60-day comment period, meaning that comments are due by September 12, 2022. Comments can be submitted electronically here: https://www.federalregister.gov/
documents/2022/07/12/2022-13734/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal. Both the text of the regulations and the button to submit comments can be found at this link. Once the comment period closes, OCR will review the comments and issue the final rule. In the meantime, districts need to continue to comply with the regulations issued in 2020.
To assist administrators in determining whether they want to submit comments, below is a summary of some of the major changes in the proposed regulations.
- The grievance procedures that currently apply to formal complaints of sexual harassment would apply to all complaints of sex discrimination, and such complaints will no longer have to be written.
- The term “sexual harassment” would be replaced by “sex-based harassment.”
- The definition of “sex-based harassment” would be broader. It would still include a quid pro quo prong and a prong for dating violence, domestic violence, and stalking. The hostile environment prong, though, would be expanded to cover “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 proposed definition also would clarify that the scope of sex-based harassment includes harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
- The proposed regulations remove all references to the deliberate indifference standard. So, while current regulations require that a district with actual knowledge of sexual harassment must respond promptly in a manner that is not deliberately indifferent, the proposed regulations would state that a district must take prompt and effective action to end any sex discrimination that has occurred in its education program or activity, prevent its recurrence, and remedy its effects.
- The Title IX Coordinator would be able to delegate some of his or her responsibilities to designees so long as the Coordinator retains ultimate oversight over the responsibilities.
- All employees would be required to be trained on the district’s obligation to address sex discrimination, the scope of conduct that constitutes sex discrimination, including the proposed definition of “sex-based harassment,” and all applicable notification and information requirements outlined in the proposed regulations. Investigators, decision makers, and others who are responsible for implementing the grievance procedures or have the authority to modify or terminate supportive measures would need to be trained on specific categories of information listed in the regulations. Title IX Coordinators and any designees would also have specific training requirements.
- All employees who are not confidential employees would be required to notify the Title IX Coordinator when the employee has information about conduct that may constitute sex discrimination under Title IX.
- Supportive measures, non-disciplinary, non-punitive individualized measures designed to restore or preserve a complainant’s or respondent’s access to the recipient’s education program or activity, would now be able to burden the respondent during the pendency of the grievance procedures. OCR notes that examples of such measures include changes in a respondent’s class, work, housing, extracurricular or any other activity. However, such measures must be no more restrictive than necessary to restore or preserve the complainant’s access to the education program or activity. A respondent burdened by a supportive measure would have the opportunity to seek modification or termination of such measures before they are imposed or, if necessary under the circumstances, as soon as possible after the measure has taken effect, by appeal to an official other than the one who originally imposed the measures.
- Emergency removal of the respondent would not be limited to situations in which there is a threat to a person’s physical health or safety but would include physical or non-physical threats.
- The informal resolution process would not be limited to those who file complaints of sexual harassment but could be offered at any time prior to determining that sex discrimination has occurred. Also, if an informal resolution process is offered, the Title IX Coordinator must take other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur.
- The prohibition on the decisionmaker in the grievance procedures being the same person as the Title IX Coordinator or investigator would be removed.
- The district would be required to establish timeframes for completion of the major stages of its grievance procedures rather than just a timeframe for the overall completion of the process.
- The requirement that a complaint must be dismissed under certain circumstances would be removed. Instead, dismissal would be permitted under certain circumstances.
- The district would no longer be required to prepare an investigative report that must be shared with the parties.
- The district would be required to share with a complainant and respondent a description of the evidence that is relevant to the allegations of sex discrimination and not otherwise impermissible and give them a reasonable opportunity to respond.
- The district would be required to provide a process to enable the decisionmaker to adequately assess the credibility of the parties and witnesses to the extent credibility is in dispute and relevant.
- The district would be required to use the preponderance of the evidence standard of proof; the clear and convincing standard would no longer be available unless the district uses that standard for all other comparable proceedings.
- The notification of outcome would still be required but would not need to be in writing.
- Retaliation would be considered a form of sex discrimination, complaints about which must be processed through the grievance procedures, and retaliation would explicitly include “peer retaliation.”
- Protections for pregnant students and employees would be enhanced, including a requirement that the district provide a leave of absence if medically necessary even if the individual is not otherwise eligible for a leave under the district’s policies, as well as a requirement to provide time and space for lactation. The space must be a place, other than a bathroom, that is clean, shielded from view, and free from intrusion from others. It would be permissible for this space to be used by both students and employees.
- The district would be prohibited from adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity because OCR finds that doing so subjects a person to more than de minimis harm on the basis of sex. Yes, this means bathrooms.
One issue not addressed in the proposed regulations is whether the law protects transgender students’ ability to participate in sports consistent with their gender identity. OCR has indicated it will go through a separate rulemaking process to address Title IX's application to athletics.
Superintendents or other administrators are encouraged to send this information to their Title IX Coordinators. If your district has questions about the proposed regulations or needs assistance with commenting, we are happy to help. Contact us at (800) 488-9045.
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