Those of us who are charged with shepherding campuses though Title IX's requirements will surely not forget May of 2020 when the U.S. Department of Education (USDOE) issued significant regulatory changes while providing institutions with only a few months to come into compliance. The 2020 regulations implemented sweeping changes that implicated Title IX jurisdiction regarding off campus conduct, the definition of "sexual harassment," formal complaint requirements, live hearings where advisors conduct cross-examinations, and the applicable standard of evidence, among other key areas.
On June 23, 2022, the USDOE released proposed Title IX regulations which would reverse multiple Trump-era policies. The proposed rules would:
- Add protections for off campus conduct: the proposed rules expands coverage to behavior that occurs in education programs off campus, including outside of the U.S., meaning this change would implicate policies and procedures regarding study abroad programs.
- Add protections for LGBTQ+ students: for the first time, the proposed regulations would formalize protections for sexual orientation and gender identity under Title IX. This move would expressly bring Title IX in line with a recent decision of the United States Supreme Court in Bostock v. Clayton County, Georgia, which expanded protections to LGBTQ+ employees under Title VII of the Civil Rights Act of 1964.
- End the formal complaint requirement: under the proposed rules, resolution of an incident does not require the submission of a formal complaint.
- End cross-examination and live hearing requirements: institutions must currently hold live hearings as part of the formal investigation process and allow advisors to cross examine the complainant and respondent. Opponents of these requirements maintain that such procedures can be traumatic for complainants. The proposed regulations eliminate these requirements.
- Add a broader definition of "sexual harassment": the proposed rule would widen the scope of behavior that is considered harassment to "all forms of sex-based harassment, including unwelcomed sex-based conduct that creates a hostile environment by denying or limiting a person's ability to participate in or benefit from a school's education program or activity." This shift may increase the number of cases that colleges and universities would be legally obligated to investigate.
The USDOE's proposed rules will undergo a period of public comment for the next 60 days. The administration will also engage in a separate rule-making process for student athletes, particularly in light of evolving legal discussions regarding transgender students' participation in sports. As with the 2020 rule making process, we can expect tens of thousands of comments during the upcoming public comment period.
Being all too familiar with the scramble we faced with the 2020 regulations, colleges and universities should first review the proposed changes and submit comments during the public comment period, if desired. In addition to carefully tracking the proposed rules and comments, institutions should begin internal team discussions about the potential changes and develop a plan to implement changes to their Title IX policies and procedures when finalized rules are issued by the USDOE.
As further guidance is released, we will issue additional alerts that focus on particular provisions and provide recommendations and guidance about implementation. In the interim, if your institution needs assistance with the planning, review or revision process related to its Title IX policies and procedures, please do not hesitate to contact any member of our Higher Education team.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.