In celebration of the 50th anniversary of Title IX of the Education Amendments of 1972 (Title IX), on June 23, 2022, the U.S. Department of Education (DOE) issued its anticipated proposed rule to amend Title IX’s implementing regulations.¹ Title IX prohibits discrimination on the basis of sex in education programs or activities receiving federal financial assistance, such as school districts, colleges and universities (collectively referred to as “schools” or “recipients”). The DOE states that “the proposed amendments aim to ensure full protection under Title IX for students, teachers, and employees from all forms of sex discrimination, including sex-based harassment and sexual violence, in federally funded elementary schools, secondary schools, and postsecondary institutions.”²

The DOE’s proposed Title IX rule will be open for public comment until September 12, 2022. A DOE-prepared fact sheet and chart summarize the proposed regulations. If adopted, the new regulations will make sweeping changes to the current DOE regulations’ definitions of sexual harassment, the scope of Title IX coverage for recipients of DOE funding, and the procedural requirements for handling Title IX complaints. Specifically, the proposed regulations would, among other things:

• Expand the scope of sex-based discrimination to include sexual harassment, as well as discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
• Expand the scope of Title IX to apply to conduct that occurs off-campus or during a study abroad program.
• Require covered entities to take steps to address discrimination allegations based on constructive, not just actual, notice.
• Broaden reporting requirements, while requiring greater confidentiality in responding to Title IX prohibited conduct.
• Create two grievance processes: one covering all sex discrimination complaints under Title IX, and another that provides additional grievance process requirements for sex-based harassment involving postsecondary students.
• No longer require live hearings as part of the Title IX grievance procedure, although a recipient may choose to conduct a live hearing.

The following is a detailed discussion of the proposed Title IX regulation changes.

Expanding the Definition of Sex Discrimination and Sex-Based Harassment

The current DOE regulations define sexual harassment as conduct on the basis of sex that is: 1) quid pro quo harassment; 2) unwelcome conduct that is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity”; and 3) sexual assault, dating violence, domestic violence or stalking.³

In contrast, the proposed regulations return the standard for sex-based harassment to its former definition under the Obama administration of “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).” This definition was rescinded with the issuance of the May 2020 regulations under the Trump administration.⁴ The proposed regulations continue to include quid pro quo harassment, sexual assault, dating violence, domestic violence, and stalking within the definition of sex-based harassment, but also clarify that the proposed regulations cover all forms of sex-based discrimination, as opposed to only sexual harassment. The proposed regulations significantly expand the scope of sex-based discrimination to include sexual harassment, as well as discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity, and other sex-based conduct that meets requirements defined in the DOE regulations.

In accordance with the expanded definition of what type of sex-based conduct is covered under Title IX, the proposed regulations also emphasize that Title IX requires 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.”⁵ In contrast, the current DOE regulations require schools to focus their Title IX procedures on on-campus activity. Expanding Title IX to address off-campus conduct or conduct outside the United States that causes sex discrimination in the United States will have significant ramifications for schools and universities that participate in study abroad programs (where the effects of the discrimination can impact an individual abroad and when they return to the United States) or, for example, activities involving traveling sports teams, which frequently involve students who are off-campus, off-campus housing and conduct that occurs online.

In order to establish a violation of Title IX, proposed § 106.45(h)(1) would require a school to use the preponderance of evidence standard of proof (the evidence must show that the allegations are more likely to be true than not) to determine whether sex discrimination occurred, unless the recipient uses the clear and convincing evidence standard of proof (the evidence is highly and substantially more likely to be true than untrue) in all other comparable proceedings, such as other discrimination complaints. In those situations, proposed § 106.45(h)(1) would allow the recipient to elect to use the clear and convincing evidence standard of proof in determining whether sex discrimination occurred.

Currently, recipients can choose between the preponderance of evidence standard and clear and convincing standard, and the standard used to adjudicate Title IX matters does not need to be the same standard used by the school to adjudicate other discrimination complaints, so long as the same standard is applied to formal complaints of sexual harassment against both students and employees.

Actual and Constructive Knowledge Requires a Prompt Response

Under the current Title IX regulatory scheme, recipient postsecondary institutions are required to respond to allegations of Title IX-prohibited conduct in a way that is not deliberately indifferent when the institution has actual knowledge of the conduct.⁶ Postsecondary institutions currently have actual knowledge only when the Title IX Coordinator (a person appointed by a recipient that is responsible for the implementation of Title IX) or an official with authority to take corrective action (“Responsible Employee”) has notice of the alleged prohibited conduct. The current regulations do not recognize constructive notice—notice that is given to postsecondary employees other than the Title IX Coordinator or a Responsible Employee—and do not require these other employees to report their knowledge of alleged prohibited conduct to the Title IX Coordinator or a Responsible Employee. Furthermore, the current regulations impose limitations on a recipient’s response to alleged prohibited conduct before a formal complaint is filed by restricting pre-formal complaint response to intake of a report, offering information on filing a formal complaint and assistance making a report to law enforcement, conducting an emergency removal, and offering supportive measures.⁷

Conversely, the proposed regulations address concerns about excluding constructive notice as a means of alerting a recipient to alleged Title IX-prohibited conduct by expanding the pool of employees qualifying as Responsible Employee and creating obligations for others. Under the proposed regulations, not only would a recipient have actual knowledge when the Title IX Coordinator or an official with authority to take corrective action learned of alleged Title IX prohibited conduct, actual knowledge also would exist when administrative leaders, teaching staff, or those advising an education program or activity learn of prohibited conduct for incidents involving students. Furthermore, all other employees—aside from Confidential Employees⁸—would be required to either: (i) notify the Title IX Coordinator; or (ii) provide the reporting party with contact information for the Title IX Coordinator and information about how to report alleged prohibited conduct. Confidential Employees would not need to report alleged prohibited conduct to the Title IX Coordinator, but would need to inform the reporting party of the Title IX Coordinator’s contact information as well as provide information about how to report alleged prohibited conduct. Recipients will be required to provide comprehensive training to ensure all employees understand Title IX protections, reporting requirements, and how to properly convey required information.

If the proposed regulations are implemented as written, a certain level of response will be required of recipients once aware of prohibited conduct, and recipients will have broader response obligations regardless of whether a formal complaint is filed. The proposed regulations require “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.”⁹ Part of this mandate for proactivity requires recipients to monitor for reporting barriers and take necessary steps to remove those barriers; utilize information learned during public awareness events—where information learned may not necessitate a formal complaint—to prevent instances of prohibited conduct where reasonably necessary; and focus its training efforts on improving problem areas revealed by the information gained. Additionally, a Title IX Coordinator would be allowed to offer informal resolution, as appropriate, even if a formal complaint has not been filed.

A major difference between the current DOE regulations and the proposed regulations revolves around supportive measures. Under the current rules, supportive measures cannot unreasonably burden a respondent, with rare exception such as where emergency removal is justified.¹⁰ The proposed regulations allow recipients to implement supportive measures that burden a respondent if a grievance is pending, but such supportive measures may be no more restrictive than necessary to restore or preserve a complainant’s access to the education program or activity and may not be punitive or disciplinary. Additionally, burdensome supportive measures must terminate once a grievance procedure concludes.

The current DOE regulations also mandate response under Title IX only if the jurisdictional requirements are met—prohibited conduct occurring in the United States against an individual participating in or attempting to participate in an education program or activity—but do not mandate a response if the complainant is not participating or attempting to participate in the recipient’s program or activity at the time the complaint is filed.¹¹ The proposed regulations include complaints from students, employees, and other individuals who were participating or attempting to participate in an education program or activity at the time of the alleged prohibited conduct, even if they have chosen to leave the recipient’s education program or activity as a result of the discrimination or for any other reason.¹²

The proposed regulations require greater confidentiality in responding to and resolving alleged Title IX prohibited conduct. The proposed regulations clarify a recipient’s confidentiality obligation with respect to supportive measure by explaining a recipient’s obligation not to disclose information about supportive measures other than where necessary to provide the supportive measures.¹³ Additionally, the proposed regulations provide greater protection for the confidentiality of parties and witnesses alike by requiring recipients to take reasonable steps to protect the privacy of parties and witnesses, so long as such steps do not prevent parties from obtaining or presenting evidence, speaking with witnesses, preparing for a hearing or otherwise defending their interests. Currently, the DOE regulations prohibit recipients from restricting either party’s ability to discuss the allegations under investigation or to gather and present relevant information.¹⁴ In addition, the proposed regulations require recipients to take steps to prevent unauthorized disclosure of information and evidence obtained through the process, whereas the current DOE regulations do not mandate such action and merely informed recipients that they may implement procedures to protect privacy in the non-binding preamble to the DOE regulations. As for a complainant’s request for confidentiality or that a recipient not take action, the proposed regulations retain the long-standing requirement for recipients to honor such requests “as long as doing so does not prevent the school from responding effectively to harassment and preventing harassment of other students.”

Grievance Procedures (Including Informal Resolution)

The current DOE regulations begin grievance procedures promptly after the formal complaint is filed and apply such procedures only to conduct currently covered as Title IX prohibited conduct. Furthermore, absent resolving a complaint through informal resolution or a complaint being withdrawn, the process for resolution is standardized without regard to the differing needs of the parties or particular contexts.

The proposed regulations maintain current DOE regulations that protect equitable treatment—for example, maintaining the requirement for equitable treatment without regard to party status; the presumption of non-responsibility through the conclusion of the appropriate process; appropriately noticing the parties to inform them of their rights, the grievance procedure, the allegations, and availability of supportive measures; prohibiting Title IX Coordinators, investigations, and decision-makers from having bias against a party or having a conflict of interest; and requiring objective evaluation of relevant and not impermissible evidence. However, the proposed regulations differ greatly with respect to informal resolution and the requirement for a live hearing.

As explained above, the proposed regulations allow informal resolution to be offered as appropriate even if a formal complaint has not been filed. Under the proposed regulations (as with the current regulations), the Title IX Coordinator has discretion on whether informal resolution may be offered, and informal resolution must be voluntarily consented to by all parties through conclusion of informal resolution.¹⁵ The proposed regulations, however, do not prohibit informal resolution where the allegations involve sexual misconduct between an employee and student, instead requesting recipients not allow informal resolution if the alleged conduct presents a future risk of harm to others.

Under the current DOE regulations, unless a formal complaint is dismissed or resolved through informal resolution, an investigator conducts an investigation and summarizes the evidence in a report. A separate decision-maker then determines whether the respondent engaged in the prohibited conduct alleged by the complainant following a live hearing where the parties have had the opportunity to cross-examine the other party through each party’s advisor and cross-examine witnesses based on the relevant standard.¹⁶ The current DOE regulations require the decision-maker to be a different person than the Title IX Coordinator or investigator, but they allow the Title IX Coordinator to also serve as the investigator.¹⁷ The proposed regulations alter this scheme in multiple ways, starting with requirements about who may serve as the decision-maker. As noted, the decision-maker is still required to be free from bias and conflicts of interest, but the proposed regulations allow the Title IX Coordinator and/or investigator to also serve as the decision-maker.¹⁸ The decision-maker must follow an equitable process that facilitates asking relevant permissible questions and follow-up questions, as well as enables credibility determinations.¹⁹

The proposed regulations outline two grievance processes – one that covers all sex discrimination complaints under Title IX, and another that provides additional grievance process requirements for sex-based harassment involving postsecondary students. Although both processes contain the requirements outlined above, the process for sex-based harassment allegations involving postsecondary students contains the following additional requirements:

• Written notice to the parties of allegations, dismissal, delays, meetings, interviews, and hearings.
• Opportunity to have an advisor of the party’s choice at any meeting or proceeding.
• Equitable access to relevant and not otherwise impermissible evidence or to a written report summarizing the evidence.
• A process to assess credibility of parties and witnesses, when necessary, that includes either:
  
  • Allowing the decision-maker to ask relevant and not otherwise impermissible questions in a meeting or at a live hearing and allowing the parties to propose relevant and not otherwise impermissible questions for the decision-maker or investigator to ask during a meeting or live hearing.
  • Allowing an advisor for each party to ask relevant and not otherwise impermissible questions to other parties and any witnesses during a live hearing.
• Permitting, but not requiring, a live hearing. When a live hearing is permitted, a recipient must allow the parties, on request, to participate from separate locations using technology.
• Not permitting questions that are unclear or harassing of the party being questioned.
• Not relying on a statement of a party that supports that party's position if the party does not respond to questions related to their credibility, and not drawing an inference about whether sex-based harassment occurred based solely on a party's or witness's refusal to respond to questions related to their credibility.
• Providing written notice of the determination that includes a description of the allegations, information about the policies and procedures used to evaluate the allegations, the decision-maker’s evaluation of the relevant evidence and determination of whether sex-based harassment occurred, disciplinary sanctions and remedies if relevant, and information about appeal procedures.
• Providing an opportunity to appeal based on procedural irregularity, new evidence, and conflict of interest or bias, as well as any other bases offered equally to the parties by the recipient.

Discrimination Based on Pregnancy or Related Conditions, Sexual Orientation, Gender Identity, and Sex Characteristics

The proposed regulations also aim to clarify that Title IX’s prohibition on sex discrimination includes protections against all forms of sex discrimination, including discrimination on the basis of sex stereotypes, sex characteristics, and pregnancy or related conditions.

In particular, the proposed regulations would update existing protections for students, applicants, and employees against discrimination because of pregnancy or related conditions, including strengthening requirements that schools provide reasonable modifications for pregnant students. Under the proposed regulations, an education institution would be required to ensure that when a student (or a student’s parent, guardian, or authorized legal representative) tells an institution’s employee of the student’s pregnancy or related conditions, the employee must provide information on how to contact the Title IX Coordinator for further assistance. Then, the Title IX Coordinator must: provide the student with the option of individualized, reasonable modifications to prevent discrimination and ensure equal access to the recipient’s education program or activity; allow the student a voluntary leave of absence for medical reasons and reinstatement upon return; and provide the student a clean, private space for lactation. Further, the institution would be required under the proposed regulations to provide its employees with reasonable break time for lactation, as well as a clean and private lactation space.

The proposed regulations also seek to broaden protections for parents by defining parental status more broadly to include adoptive or stepparents, or legal guardians.

The Department also clarified that its proposed regulations will strengthen protections for LGBTQI+ students by clarifying that Title IX’s protections against sex discrimination apply to discrimination based on sexual orientation and gender identity. The proposed regulations would address discrimination on the basis of sexual orientation, gender identity, and sex characteristics by: prohibiting recipients from separating or treating any person differently based on sex in a manner that subjects that person to more than minimal harm. This includes policies and practices that prevent a student from participating in a recipient’s education program or activity consistent with their gender identity. This rule would not apply in contexts in which a particular practice is otherwise permitted by Title IX, such as admissions practices of traditionally single-sex postsecondary institutions or when permitted by a religious exemption.

The DOE, however, avoided specifically addressing how the new regulations would address students’ eligibility to participate on a particular male or female athletics team. Instead, the Department indicated that it plans to issue a separate notice of proposed rulemaking to address this topic.

Conclusion

The Biden administration’s proposed DOE regulations seek to expand the scope of Title IX’s protections against all forms of sex discrimination, including discrimination on the basis of sexual orientation and gender identity. The proposed regulations also seek to expand protections of the rights of parents and guardians, as well as students and employees who are pregnant or with pregnancy-related conditions. The proposal expands the scope of Title IX to apply to conduct that occurs off-campus or during a study abroad program where the effects of the discrimination occur in the United States. The proposed regulations broaden reporting requirements, while requiring greater confidentiality in responding to Title IX prohibited conduct. Furthermore, the proposed regulations alter the grievance procedure requirements, including outlining additional requirements for sex-based harassment involving postsecondary students. Importantly, the proposed regulations would no longer require live hearings as part of the Title IX grievance procedure, although a recipient may choose to conduct a live hearing. In addition, the new regulations contemplate a return of the single-investigator model by allowing the same individual to serve as investigator and decision-maker, who also can be the Title IX Coordinator.   

On July 12, 2022, the Department opened the proposed DOE Title IX regulations for public comment, which must be received by September 12, 2022, and may edit the proposed rules based on that feedback.²⁰ After public comment, the Department will issue a final rule, and then will likely set a date when all institutions must become compliant with the regulations. In the meantime, institutions should continue to comply with the current DOE regulations, as well as applicable state law and court decisions regarding Title IX compliance.