Department of Education releases long-awaited Title IX proposal | Hogan Lovells

On June 23, 2022, the US Department of Education (ED) released its long-awaited proposal to amend ED’s regulations implementing Title IX of the Education Amendments of 1972 (Title IX). ED’s proposed regulations include significant revisions to how schools, including higher education institutions, must address cases involving sex-based discrimination, including cases of sexual harassment and assault. Notably, the proposed regulations also extend protections to LGBTQI+ students.

Background

Under Title IX, a school that receives federal funds must ensure that no student is deprived of access to educational opportunities on the basis of sex. According to ED Secretary Miguel Cardona, the proposed regulations focus on “fully protect[ing] students from all forms of sex discrimination, instead of limiting some protections to sexual harassment alone, and make those protections include discrimination based on sexual orientation and gender identity.”

Overview of the Proposed Rule

Although ED timed its announcement to coincide with the 50thth Anniversary of Title IX, the proposed rule is not yet published in the Federal Register. The clock has therefore not yet started running on the 60-day notice and comment period. Interested parties will want to review ED’s related resources on this topic in preparation for the official notice and comment period. Universities and colleges may be particularly interested in reviewing ED’s chart summary of the proposed rule, which includes its major provisions and highlights significant changes to the current rules.

The proposed regulations discard many of the Trump Administration’s Title IX requirements. A notable distinction is that the proposed regulations would no longer require colleges and universities to allow the cross-examination of witnesses. ED’s proposal also removes prescriptive federal requirements governing institutional policies and grants colleges the ability to craft grievance policies unique to their “respective settings.” Also, note that colleges and universities may now offer an informal resolution process whenever they receive a complaint of sex discrimination or have information about conduct that may constitute sex discrimination. Under the current rules, colleges and universities may only offer an informal resolution process if a formal complaint has been filed.

According to ED’s press release, the proposed rule would:

  • Protect students and employees from all forms of sex discrimination.
  • Provide full protection from sex-based harassment.
  • Protect the right of parents and guardians to support their elementary and secondary school children.
  • Require schools to take prompt and effective action to end any sex discrimination in their education programs or activities – and to prevent its recurrence and remedy its effects.
  • Protect students and employees who are pregnant or have pregnancy-related conditions.
  • Require schools to respond promptly to all complaints of sex discrimination with a fair and reliable process that includes trained, unbiased decisionmakers to evaluate the evidence.
  • Require schools to provide supportive measures to students and employees affected by conduct that may constitute sex discrimination, including students who have brought complaints or been accused of sex-based harassment.
  • Protect LGBTQI+ students from discrimination based on sexual orientation, gender identity, and sex characteristics.
  • Clarify and confirm protection from retaliation for students, employees, and others who exercise their Title IX rights.
  • Improve the adaptability of the regulations’ grievance procedure requirements so that all recipients can implement Title IX’s promise of nondiscrimination fully and fairly in their educational environments.
  • Ensure that schools share their nondiscrimination policies with all students, employees, and other participants in their education programs or activities.

ED indicated that the proposed rule does not address athletics and that guidance regarding Title IX’s application to athletics is forthcoming, and noted that it will address by separate notice of proposed rulemaking, the question of what criteria, if any, will be permitted in the future to establish students’ eligibility to participate on a particular male or female athletics team.

Conclusion

In the coming days, we will be following up with a series of advisories reviewing the proposed regulations in further detail.

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