Happy 50th, Title IX! Department of Education Celebrates by Releasing Proposed Regulation Changes

By: Ashling A. Ehrhardt

June 23, 2022, was an auspicious day, as it marked the 50th anniversary of the civil rights law known as Title IX. The U.S. Department of Education chose this anniversary as the day it released proposed changes to the regulations and invited public comments. The department’s press release stated, “The proposed amendments will restore crucial protections for students who are victims of sexual harassment, assault, and sex-based discrimination—a critical safety net for survivors that was weakened under previous regulations. The proposed regulations will advance educational equity and opportunity for women and girls across the country to ensure that every student in America, from kindergarten through a doctorate degree, can achieve her dreams.”

Here are some of the more notable changes the department is proposing:

Hearings Not Required

In arguably the biggest change proposed by the department, hearings will be optional and no longer required. Even if enacted, however, this provision will exclude colleges and universities in Pennsylvania, New Jersey and Delaware, given the U.S. Court of Appeals for the Third Circuit’s Doe v. University of the Sciences’ decision. The Third Circuit mandates “a real, live, and adversarial hearing” in a sexual assault investigation with the opportunity to cross-examine the accuser(s) and witnesses.

Investigative Reports Now Optional

Schools may provide parties the opportunity to review all of the relevant evidence instead of providing a written investigative report. The department’s goal is to provide schools with the flexibility they need to ensure a prompt result. Not preparing an investigative report would certainly cut down on costs as well. The concern is that parties may have a hard time understanding the evidence without a written investigative report that accompanies it.

Jurisdiction Extended

The regulations enacted in August 2020 provided that sex discrimination must occur within a school’s education program or activity and in the United States. Students studying abroad were no longer entitled to protection under Title IX. Many schools still wanted to include sexual misconduct that occurred off-campus, for example, and did a workaround by including this sexual misconduct as a violation of the Student Code of Conduct. Such a workaround will no longer be needed. Under the proposed changes, schools are obligated to address sex-based harassment even if it occurred outside the school’s education program or activity and outside the United States.

Complaints Can Be Oral

If enacted as proposed, the requirement for a written complaint to begin the Title IX process will be gone. Oral or written requests can both initiate grievance procedures. This means there is no longer a physical or electronic signature requirement. The proposed changes also remove the previous limitations on who can provide information to the Title IX coordinator. The Department believes that having third-party complaints directed to a school, or having someone other than the student who was participating in an education program or activity when the sex discrimination occurred to report the incident, will streamline the complaint process. The school will then be required to ensure that the Title IX coordinator is notified.

Reporting Barriers Must Be Rectified

The Title IX coordinator must take steps to rectify any potential barriers to reporting sex discrimination. These measures can include the presence of supportive academic measures, trauma-informed therapy or assurances that the party will not be disciplined for certain code of conduct violations. Taking these steps will help to ensure that possible instances of sex discrimination do not go unreported in the educational setting.

Expanded Definition of ‘Sex-Based’ Harassment

The new term, instead of sex harassment, would cover all forms of sex-based harassment including anything based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity. The proposed changes discuss example situations, including:

• An employee, agent, or authorized representative providing aid, benefits or services conditioned on participation in unwelcome sexual conduct;
• Unwelcome sex-based conduct that is sufficiently severe or pervasive, based on the totality of circumstances viewed subjectively and objectively, such that it creates a hostile work environment; and
• Instances of sexual assault, dating violence or domestic violence.

The changes also propose certain factors to help the Title IX coordinator determine whether reported adverse conduct denies or limits a person’s ability to participate in the school’s education program or activity:

• The degree to which the conduct affected the complainant’s ability to access the recipient’s education program or activity;
• The type, frequency, and duration of the conduct;
• The parties’ ages, roles within the school’s education program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the alleged unwelcome conduct;
• The location of the conduct, the context in which the conduct occurred, and the control the recipient has over the respondent; and
• Any other sex-based harassment in the school’s education program or activity

Training for Elementary and Secondary School Employees

Elementary and secondary schools are required to train all of their employees who are not confidential employees to notify the Title IX coordinator when an employee learns information about conduct that may be considered sex discrimination. A school’s employees include anyone with responsibilities in administrative leadership, teaching, or advising in the school’s education programs or activities. While these employees are not required to monitor students’ social media accounts, they are required to act if online sex-based harassment is brought to their attention.

Pregnancy

Schools must inform their employees that they are prohibited from discriminating against any student based on their current, potential or past pregnancy or related conditions. When a pregnant student tells an employee that she is pregnant, the employee must tell the student how to notify the Title IX coordinator in case the student requires any assistance. The school must also provide its students with reasonable break time to express breast milk or breastfeed as needed.

Supportive Measures

When Title IX coordinators are informed of conduct that may constitute sex discrimination, they must offer and coordinate appropriate supportive measures. Supportive measures can include counseling, extensions on assignment deadlines, leaves of absence, or escort services to and from certain areas of the school. These measures must remain confidential unless doing so would impair the school’s ability to provide them.

Informal Resolution

With the elimination of the written complaint requirement, schools can now offer informal resolutions from the start of a sex-based harassment claim. Schools must ensure that the facilitator of informal resolution is not the same person as the investigator or decision-maker. As is currently the case, parties participating in informal resolution have the right to withdraw from the process at any time and resume the formal grievance procedures.

Discretionary Dismissals

The proposed regulations eliminate the mandatory dismissal of complaints in certain instances in which the complainant is unable to identify the respondent; if the respondent is not participating in the school’s education program or activity and is not employed by the recipient; when the complainant voluntarily withdraws any or all of the allegations in the complaint; and when the allegations, if proven, would not constitute sex discrimination. In these cases, dismissal would now be permissive. However, even if the allegations are withdrawn, the school must offer supportive measures to the parties involved.

Consolidation of Claims

If multiple claims of sex-based harassment or discrimination arise from the same facts and circumstances, schools can consolidate the claims for convenience. This includes claims against more than one respondent, claims with more than one complainant, and cross-claims between the parties.

Evidence

Schools will be required to include in their policies how they are going to make credibility assessments and evaluate the allegations. In addition, all evidence and fact witnesses must be relevant to the proceeding—relevant meaning that the evidence may aid a decision-maker in determining whether the alleged sex discrimination occurred. The standard of proof for such evidence will be the preponderance of the evidence standard, and the department hopes that the flexibility of the new evidence rules will provide prompt results to the parties.

The public comment period is open until Sept. 12, so if you are inclined to comment, get your comments in soon.

Haley R. Norwillo, summer associate with the firm, contributed to this article.

Reprinted with permission from the August 4, 2022 edition of “The Legal Intelligencer” © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.