EdLawConnect Blog

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education   program or activity receiving Federal financial assistance.

The regulations implementing Title IX were last revised under the amendments put forward by the Trump Administration, which became effective in August 2020 (“Title IX Regulations”).[1]  The Biden Administration’s new Proposed Amendments seek to reverse some of the changes implemented by the 2020 Title IX regulatory amendments, as specifically discussed below.[2]  The U.S. DOE has invited the public to provide comment up through September 12, 2022, on the Proposed Amendments, as specifically noted in the Federal Register. After the public comment period closes, the U.S. DOE will move forward with finalizing and adopting the Proposed Amendments with any modifications, which will then have the force of federal law. Although there is no definitive end date for the rulemaking process, it is anticipated that the Proposed Amendments will most likely affect an educational institution’s obligations under Title IX commencing with the 2023-2024 Academic Year if not before.

AALRR’s Title IX Team has reviewed the Proposed Amendments and will continue to evaluate their potential impact on educational institutions and prepare related informational AALRR Blogs. For example, we will explore the manner in which the Proposed Amendments will affect grievance procedures for sex discrimination and harassment complaints under Title IX and how such changes intersect with California legal requirements. Below, please find some key highlights of the Proposed Amendments.

• Prohibiting of All Forms of Sex Discrimination: The Proposed Amendments would prohibit all forms of sex discrimination, including discrimination on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. For more information on this topic, please see AALRR’s Alert, “Newly Proposed Title IX Regulatory Amendments Explicitly Clarify that Title IX Prohibits Discrimination on the Basis of Sexual Orientation and Gender Identity.”[3]
• Clarifying and Expanding the Definition of “Sex-Based Harassment”: The new definition of “sex-based harassment” under the Proposed Amendments would clarify that Title IX covers “sexual harassment,” in addition to other types of sex-based conduct, including such sex-based conduct that creates a “hostile environment” because the unwelcome conduct is “sufficiently severe or pervasive,” and based on the totality of the circumstances evaluated subjectively and objectively, such conduct “denies or limits a person’s ability to participate in or benefit from the recipient’s education program or activity.” The Proposed Amendments would continue to apply to other types of sexual misconduct, such as “sexual assault,” “dating violence,” “domestic violence,” and “stalking.”^[4] With regard to hostile environment sexual harassment, the 2020 amendments to the Title IX regulations defined “sexual harassment” more narrowly as “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”^[5] Thus, the Proposed Amendments would broaden the type of sex-based conduct that is prohibited under Title IX, which is more aligned with the definition under Title VII of the Civil Rights Act of 1964 (“Title VII”).
• Reporting and Responding to Possible Sex Discrimination: The Proposed Amendments would require any non-confidential employee of elementary or secondary schools to notify the Title IX Coordinator when they have information about conduct that may constitute sex discrimination under Title IX. An employee of a postsecondary educational institution or other recipient who has the authority to take corrective measures or, for incidents involving students, has the responsibility for administrative leadership, teaching, or advising, would be required to notify the Title IX Coordinator. Except for confidential employees, all other employees of a postsecondary educational institution or other recipient would be required to notify the Title IX Coordinator or provide an individual the contact information of the Title IX Coordinator and reporting information. Confidential employees’ obligations would be limited to providing an individual with the contact information of the Title IX Coordinator and reporting information.
• Defining “Complaint”: The Proposed Amendments would define “complaint” to include written or oral complaints of sex discrimination and would no longer require a physical or digital signature. Additionally, unlike the current Title IX Regulations, the Proposed Amendments would not require a complaint to be filed with a Title IX Coordinator or to any specific individual employed before being acted upon by the recipient.
• Addressing Off-Campus Conduct that Creates or Contributes to a Hostile Environment: The Proposed Amendments would clarify that conduct occurring 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, in addition to conduct that is subject to the recipient’s disciplinary authority. Further, the Proposed Amendments would require a recipient to address a sex-based hostile environment under its education program or activity, even if the harassment occurred outside the recipient’s education program or activity or outside the United States.
• Clarifying Possibility of Multiple Roles Played by a Single Individual in Title IX Grievance Process: The Proposed Amendments would eliminate the categorical prohibition under the current Title IX Regulations of having the same individual serve as both the decision-maker and Title IX Coordinator or investigator.
• Identifying Required Standard of Proof: The Proposed Amendments would require a recipient to use the preponderance of the evidence or, more likely than not, standard of proof for determining whether sex discrimination occurred, unless the clear and convincing standard is used in all other comparable proceedings.
• Adding Definition of “Student with a Disability”: The Proposed Amendments would include a definition of a “student with a disability” in order for recipients to understand the scope of their obligations to ensure the rights of students with disabilities under Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act and how the recipients’ Title IX obligations intersect with such rights.
• Broadening the Language and Application of Emergency Removal: The Proposed Amendments would broaden the application of emergency removal by deleting the restrictive term “physical” before “health and safety” so as to permit emergency removal of a respondent after a recipient conducts an individualized assessment and determines there is an immediate threat to the health or safety (physical and non-physical) of any student, employee, or other person arising from the alleged sex discrimination.

Until the Proposed Amendments are formally adopted and have the full force of law, educational institutions must continue to comply with the current Title IX Regulations.

AALRR will continue to issue Blogs or Articles to address different components of the Proposed Amendments and how they might affect your educational institution. We will also issue an Alert when the proposed amendments result in formal federal regulations. If you have any questions, please contact one of the attorneys of AALRR’s Title IX Team.

[1] Title 34 of the Code of Federal Regulations § 106.1 et seq. (34 C.F.R. § 106.1 et seq.).

[2] For a copy of the Proposed Amendments, FACT SHEET: U.S. DOE’s 2022 Proposed Amendments to its Title IX Regulations, and Summary of Major Provisions of the U.S. DOE’s Title IX Notice of Proposed Rulemaking, see https://www.ed.gov/news/press-releases/us-department-education-releases-proposed-changes-title-ix-regulations-invites-public-comment and https://www2.ed.gov/about/offices/list/ocr/docs/t9nprm-chart.pdf.

[3] https://www.aalrr.com/newsroom-alerts-3931.

[4]  The proposed new definition of sex-based harassment offered by the Proposed Amendments would clarify that it includes “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 (i.e., creates a hostile environment).” Whether a hostile environment based on sex has been created is a fact-specific inquiry that includes consideration of the following factors: “(i) the degree to which the conduct affected the complainant’s ability to access the recipient’s education program or activity; (ii) the type, frequency, and duration of the conduct; (iii) the parties’ ages, roles within the recipient’s education program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the alleged unwelcome conduct; (iv) the location of the conduct, the context in which the conduct occurred, and the control the recipient has over the respondent; and (v) other sex-based harassment in the recipient’s education program or activity.”

[5] 34 C.F.R. § 106.30.