By Attorney Rebecca Reif and Law Clerk Walker McDonald
On June 23, 2022, the 50th anniversary of the passage of Title IX, the United States Department of Education released its anticipated proposed changes to the law’s regulations. Title IX is a federal law prohibiting discrimination on the basis of sex in education programs or activities receiving federal financial assistance.
If adopted, this would constitute the second major regulatory action under Title IX in as many years, and the proposed regulations again focus on the definition of “sexual harassment” and grievance/resolution procedures for complaints of sexual misconduct. Specifically, the proposed regulations include the following notable changes and clarifications to Title IX:
~ A clarification that the prohibition of discrimination based on sex includes protections against discrimination based on sex stereotypes, pregnancy, sexual orientation, and gender identity.
~ Revising the current definition of “hostile education environment” as a form of sexual harassment to unwelcome conduct “sufficiently severe or pervasive” to alter or affect the workplace or educational environment. This definition is aligned with other civil rights law, such as Title VII, and different from the current Title IX standard of unwelcome conduct which is “severe, pervasive, and objectively offensive.”
~ Recipients would be required to address claims regarding conduct that occurs off-campus “when the respondent is a representative of the recipient or otherwise engaged in conduct under the recipient’s disciplinary authority.”
~ Removing the requirement of “actual knowledge” in the current regulations; instead requiring the recipient to take “prompt and effective action to end any prohibited sex discrimination that has occurred in its education program or activity, prevent its recurrence, and remedy its effects”.
~ Requiring a “reliable and impartial” investigation of all sex discrimination complaints, not just formal complaints of sexual harassment. Notable proposed changes to the complaint resolution process include:
Informal resolution whenever a recipient receives a complaint or has information about conduct that may constitute sex discrimination; it need not require a formal complaint;
Expanded written notice requirements for allegations, dismissal, delays, meetings, interviews, and hearings;
Optional live hearing and cross-examination for postsecondary institutions; and
More options to assess party credibility through questioning by a decision-maker or through advisor questioning.
~ Requiring schools to provide supportive measures to students and employees affected by any potential sex discrimination, rather than support only when sexual harassment may have occurred.
~ Defining rights of parents for elementary and secondary school children, including acting on behalf of the student by seeking assistance under Title IX and participating in grievance procedures.
~ Outlining protections for students and employees based on pregnancy, including by providing reasonable modifications for students, reasonable break time for employees for lactation, and lactation space for both students and employees.
~ Clarifying that preventing participation in school activities based on gender identity would violate Title IX, except in some limited areas set out in the statute or regulations.
The Department indicated it will engage in separate rulemaking to address the application of Title IX to the context of athletics, particularly the criteria permitted to establish students’ eligibility to participate on a particular gendered athletic team.
It is important to note that these changes are proposals and the highlights above are illustrative, not comprehensive. These proposals are subject to change, and the Department of Education has not announced its final regulations or an effective date. Ahlers & Cooney will continue to monitor these regulations as the Department of Education continues the process towards finalization of Title IX regulations. In the meantime, below are links to additional resources from the U.S. Department of Education regarding the proposed Title IX regulation changes.
Full text: Title IX of the Education Amendments of 1972 (PDF)
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