The Department of Education Proposes New Title IX Regulations

On June 23, 2022, the Biden Administration’s Department of Education issued a new Notice of Proposed Rulemaking (NPRM) on the 50th anniversary of the day Title IX was signed into law, intended to overhaul the Trump Administration’s May 2020 Title IX regulations. These proposed changes are not yet law, but may become so in the near future. Some of the most prominent proposed changes are discussed below.

The proposed regulations clarify that sex-based discrimination covered by Title IX includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity. For the most part, these protections are already provided in essence by a combination of case law and other statutes, though the proposed regulations’ explicit definition of discrimination on the basis of gender identity as including “different treatment or separation on the basis of sex in a way that would cause more than de minimis harm, including by 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” will likely require some reflection and adaptation by schools and universities.

The proposed regulations also emphasize, in contrast to the on-campus/program-related focus of the May 2020 regulations, that Title IX obligates a school “to respond to sex discrimination within the [school’s] education program or activity in the United States, even if it occurs off-campus,” and, significantly, to “respond to a hostile environment based on sex within its education program or activity in the United States, even if sex-based conduct contributing to the hostile environment occurred outside the recipient’s education program or activity or outside the United States.” This “colleges must address the on-campus effects of off-campus harassment” concept is similar to guidance included in the 2011 Dear Colleague Letter.

The proposed regulations would make dramatic changes to how institutions address reports of sex-based discrimination. The proposed regulations would set up a system whereby all complaints of sex-based discrimination must be addressed through procedures that include certain elements (historically and currently, general sex-based discrimination procedures that do not involve sexual harassment are only required to be “prompt and equitable”), and whereby sex-based harassment cases at postsecondary institutions that involve a student complainant or student respondent would include certain additional elements.

In contrast to the May 2020 regulations, the proposed sex-based harassment for college student regulations would, for example:

1. allow complaints to be based on both oral and written complaints
2. allow schools to separate respondents from the institution to the extent necessary to “protect the safety of the complainant or the [school’s] environment”
3. not require complaints to be “dismissed for Title IX purposes,” thereby eliminating a provision of the May 2020 regulations that caused many schools to adopt relatively cumbersome dual-track procedures to address forms of sexual misconduct both within and outside the narrow definition of sexual harassment stated in the current regulations
4. allow schools to provide the parties with either access to the evidence gathered in an investigation or a written investigation report (with evidence provided upon request), but would not require them to provide both
5. allow, but not require, live hearings, which could be replaced by a process that involves live questioning of parties and witnesses at individual meetings with an investigator or investigators
6. allow investigators to make decisions regarding responsibility (that is, a “single investigator” model would again be permitted)
7. replace the previously invalidated exclusionary rule with a rule providing that if a party does not respond to questions related to their credibility, the decision-maker must not rely on any statement of that party that supports that party’s position (but could rely upon statements, such as inculpatory or exculpatory text messages, that do not support that party’s position)

In guidance issued in 1997, 2001 and 2011, the Department of education had stated consistently that “in cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis.” While some schools used non-mediation informal resolution processes notwithstanding this guidance, many schools read this language broadly and did not use any form of informal resolution practices in sexual assault cases. The Trump Administration’s Department rescinded this guidance in 2017 and declared that informal resolution could be used in sexual assault cases if certain safeguards were implemented, and incorporated that position into the May 2020 regulations. Fortunately, the current Department did not revert to a pre-Trump Administration position on this point, in that the proposed regulations would permit the use of informal resolution processes in sexual assault and other sex-based discrimination cases.

In sum, the new regulations broaden the scope of what is covered under Title IX and when schools must respond, while simultaneously limiting the rights of the accused. This heightens the need for accused students to work with an experienced and zealous Title IX attorney to ensure that all rights to which they are entitled are enforced, and any extension of those rights that may be available are called upon.

If you or someone you know is being investigated for a Title IX offense, contact Lindsay Brown for a free initial consultation.