New Changes to Title IX Regulations Proposed June 23, 2022

June 24, 2022 Advisory

On June 23, 2022, the 50th anniversary of the enactment of Title IX of the Education Amendments of 1972 (Title IX), and less than two years after the last significant overhaul of regulations went into effect in August 2020 (the 2020 Regulations), the Department of Education announced that a new set of proposed regulations has been released for public comment. In its accompanying fact sheet, the Department explained that these “proposed amendments will restore vital protections for students in our nation’s schools which were eroded by controversial regulations implemented during the previous Administration.” The Department went on to say that the 2020 Regulations had “weakened protections for survivors of sexual assault and diminished the promise of an education free from discrimination,” and views the newly proposed regulations as providing “clear rules to help schools meet their Title IX obligation to eliminate sex discrimination in their programs and activities” and strengthening “protections for LGBTQI+ students by clarifying that Title IX’s protections against discrimination based on sex apply to discrimination based on sexual orientation and gender identity.”

The following are some important highlights from the proposed new regulations that, if implemented, will impact many institutions’ Title IX policies and processes:

  • Expansion of the definition of “sex-based harassment.” At present, “hostile environment” sexual harassment is defined 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” [emphasis added]. The proposed regulations broaden the scope of what constitutes a “hostile environment” by defining the term as “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” [emphasis added]. This revised definition embodies a significant expansion or shift along three parameters:
    • First, the standard would not require a showing that the complained-of conduct is severe, pervasive and objectively offensive, but rather severe or pervasive, a change that aligns it more closely to the standard used in Title VII employment discrimination cases.
    • Second, the new definition would move from covering only conduct that rises to the level of effectively denying equal access to a program or activity, to encompassing conduct that denies or limits the ability to participate in or benefit from the program or activity.
    • Third, the proposed regulations eliminate the “reasonable person” standard and instead require review of the “totality of the circumstances,” which must be “evaluated subjectively and objectively.” It is not clear how this new standard will be applied in practice and whether it would result in any different outcomes.
  • Expansion of groups entitled to protections. The proposed regulations strengthen and expand Title IX protections for groups that the 2020 Regulations did not cover explicitly, by prohibiting discrimination on the basis of sexual orientation, gender identity, sex stereotypes, sex characteristics, and pregnancy or related conditions. As the Department explained in its press release, this change is supported by the Supreme Court’s decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), which declared that it is “impossible to discriminate against a person” on the basis of sexual orientation or gender identity without “discriminating against that individual based on sex.” With respect to gender identity in particular, the new regulations provide that students cannot be prevented from participating in programs consistent with their gender identity. However, how this will be applied to athletic teams of a particular gender will be subject to a separate rulemaking process in the future. With respect to pregnancy or related conditions, the proposed regulations would impose additional concrete obligations, including requiring schools to provide “reasonable modifications for pregnant students, reasonable break time for pregnant employees, and lactation space.”
  • Expansion of investigation, reporting and training requirements. The proposed regulations would require schools to respond promptly to all complaints of sex discrimination, rather than only formal complaints as under the 2020 Regulations. They would also expand reporting and training requirements to a significantly broader set of employees. Should these changes go into effect, they would significantly expand institutions’ obligations and potentially result in a strain on existing personnel, resources and systems.
  • Removal of jurisdictional constraints. Unlike the 2020 Regulations now in effect, the proposed regulations would ensure that a school’s disciplinary authority to address Title IX-related conduct is not contingent on the geographic location of the conduct, but instead on whether the school exercises disciplinary authority over the respondent’s conduct. Under the proposed regulations schools will have an obligation to address all complaints of sex-based harassment, even if such conduct does not occur within the context of an education program or activity, occurs off-campus, or occurs outside the United States.
  • Removal of requirement to conduct live hearings. The new regulations would provide that live hearings and cross-examinations will be optional rather than mandatory. In addition, schools would have the option to return to a single-investigator model in which a decision-maker assesses the credibility of involved parties through a live questioning process.

Additional information on the proposed rules and how they differ from the 2020 Regulations is available in this Summary of Major Provisions created by the Department. These proposed changes in the regulations, if implemented, will again require educational institutions receiving federal funding to make some fundamental alterations to their policies and procedures to ensure compliance with the requirements of Title IX. The proposed changes will be subject to a 60-day public comment period and may be revised further before being implemented, but there are a number of action items that institutions should consider taking now to prepare for possible changes in the future:

  • Consider submitting a comment during the proposed rule-making process.
  • Review employment and admission-related policies to consider whether they already expressly cover the groups and identities that are specifically noted in the new regulations or whether they may need to be revised to cover those categories.
  • Conduct a review of facilities to determine whether changes would need to be made to create an appropriate space for nursing parents.
  • Consider whether current staffing and resource levels will support the expanded requirements for students as well as employees, and whether budgetary changes will be required to meet expanded staffing, training and other resource needs.

If you have questions about what these proposed regulations may mean for your institution, please reach out to your Armstrong Teasdale contact or any member of our Higher Education Industry Team. Two members of the team, Alexandra (Sasha) Thaler and L. Michelle Lewis, will also be attending the upcoming NACUA Annual Conference in Pittsburgh and look forward to connecting with you there.

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