Proposed Title IX Changes Impacting Schools Released

June 24, 2022 

The U.S. Department of Education (Department) has released proposed changes to the regulations implementing Title IX of the Education Amendments of 1972 (Title IX).  These proposals follow the Department’s executively ordered review of its Title IX regulations that were previously revised during the Trump administration. The proposed regulation changes are reportedly intended to “better align the Title IX regulatory requirements with Title IX’s nondiscrimination mandate, and to clarify the scope and application of Title IX and the obligation of all schools, including elementary schools, secondary schools, postsecondary institutions, and other recipients that receive Federal financial assistance from the Department … to provide an educational environment free from discrimination on the basis of sex, including through responding to incidents of sex discrimination.”

The proposed changes would alter the allegations covered under Title IX.  The proposed regulations would:

• Cover harassment that creates a hostile environment by unwelcome sex-based conduct that is so sufficiently severe or pervasive that it denies or limits an individual’s ability to participate in or benefit from the education program/activity.  This change would expand the analysis from whether conduct is “objectively offensive” and effectively denies participation in a program or activity to an assessment based on the totality of the circumstances as evaluated subjectively and objectively.
• Expand off-campus conduct that is actionable under Title IX to include conduct that occurs off-campus when the respondent is a representative of the school or otherwise engaged in conduct under the school’s disciplinary authority.  This would include conduct that occurs outside the United States, which is excluded under the current regulations.
• Add requirements for a school to take prompt and effective action to end any prohibited sex discrimination that has occurred in its program or activity, prevent its reoccurrence, and remedy its effect.  This is an expansion beyond the current response required when a school has “actual knowledge” of the harassment.

The proposed regulations also provide schools with some autonomy in developing response/grievance procedures, but with some notable proposed requirements that impact K-12 schools, including:

• Monitoring and addressing barriers to reporting potential sex discrimination, which include notice and training requirements for students and employees regarding reporting obligations, the role of a school’s confidential employees, and complaint and grievance procedures.
• Mandating specific steps that the Title IX Coordinator must take upon notification of potential sex discrimination. Specifically, the Title IX Coordinator must: treat complainants and respondents equitably, provide proper notification, use expanded supportive measures, determine whether to initiate a complaint, initiate grievance procedures, and take prompt and effective steps to ensure sex discrimination does not continue or reoccur.
• Application of grievance procedures to all complaints of sex discrimination that take into account the age, maturity, and level of independence of students in various educational settings, the particular contexts of employees and third parties, and ensure that procedures include basic requirements for fairness and reliability for all parties.  The proposed regulations include procedures that give the parties an equal opportunity to present relevant evidence and respond to the evidence; decision maker’s objective evaluation of evidence; and a process to assess the credibility of parties and witnesses through live questions by the decision maker (although a live hearing would not be required, nor would cross-examination by the parties).
• Ensuring that Title IX Coordinators, investigators, decision makers, and facilitators of an informal resolution do not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.
• Adapting grievance procedure requirements to address special education requirements.  The proposed regulations specifically define “student with a disability” and acknowledge that Title IX grievance procedures may intersect with the decisions, including those about FAPE, made by the IEP team or Section 504 team.  The proposed regulations would require that if a complainant or respondent is a student with a disability, the Title IX Coordinator must consult with that IEP team or group of persons knowledgeable about the student under Section 504.
• Providing an option for informal resolution to resolve sex discrimination complaints even if a formal complaint has not been filed.

The proposed Title IX regulations specifically address pregnancy and related conditions.  The proposal includes requirements for schools to provide a student with contact information for the Title IX Coordinator and options for modifications to prevent discrimination, including a voluntary leave of absence and access to a clean, private space for lactation.

The Department further clarifies through the proposed Title IX regulations that Title IX’s prohibition on discrimination based on sex applies to discrimination based on sexual orientation and gender identity.  The Department plans to issue a separate notice of proposed rulemaking to address whether and how the Department should amend the Title IX regulations to address students’ eligibility to participate on a particular male or female athletic team.

Once the regulations are published in the Federal Register, they will be available for public comment for 60 days here.

The changes discussed above are proposed changes to the regulations and have not been finalized.  School districts should continue to follow the current Title IX regulations and Board policy in addressing any issues that arise.  Walter Haverfield will provide updates as the proposed regulations proceed through the rulemaking process.

Lisa Woloszynek is an associate at Walter Haverfield who focuses her practice on education law. She can be reached at lwoloszynek@walterhav.com and at 216-619-7835.