On June 23, the 50th anniversary of the enactment of Title IX, the Department of Education (ED) issued its long-awaited Notice of Proposed Rulemaking (NPRM) on the regulations governing the sexual harassment prohibitions embodied in Title IX. The NPRM is 700 pages long, and the ED has made available a chart, Title IX NPRM Summary of Major Provisions Chart (ed.gov), summarizing the major provisions that you might find helpful. There appear to be no big surprises.

The NPRM has not yet been published in the Federal Register. Once it is, the public will have 60 days to comment. It is difficult to predict now, before knowing whether the comment period is extended and what the volume of comments is, when ED will be able to work through all the comments and publish final regulations. Before the regulations go into effect, litigation will likely be brought to challenge some of the provisions. In any event, we can reasonably expect that there will be no changes made to the regulations for the 2022-2023 academic year.

Here is a quick takeaway of some of the most important changes to Title IX in the proposed regulations:

Broaden the Definition of Sexual Harassment

In several ways, the proposed regulations make significant changes that broaden the protections of Title IX:

  • The proposed regulations define discrimination based on sex to include discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
  • The proposed regulations make significant changes to what will be known as “sex-based harassment” that broaden the definition of quid pro quo harassment and broaden the definition for “hostile environment harassment” to, among other things, reach conduct that is “severe or pervasive” rather than “severe and.
  • Under the proposed regulations, institutions must address sex-based harassment that occurs outside of their program or activity and harassment that occurs off-campus or outside of the United States if that conduct contributes to a sex-based hostile environment under their program or activities.

Define All Employees as “Mandatory Reporters” of Sorts

The proposed regulations remove the flexibility currently enjoyed by higher education institutions now to determine which employees on campus are required to report to the Title IX Coordinator allegations of potential sexual harassment of which they become aware.

  • Under the proposed regulations, allegations that a student may have been subjected to sex discrimination under Title IX must be reported to the Title IX Coordinator by not only anyone who has the authority to institute corrective measures but also by any employee (who is not a confidential employee) who has responsibility for “administrative leadership, teaching or advising.”
  • If employees with responsibility for “administrative leadership, teaching or advising” (who are not confidential employees) have information about an employee of the institution having been subjected to sex discrimination under Title IX, they must either report such allegations to the Title IX Coordinator or share with the person who told them about the possible discrimination the contact information for the Title IX Coordinator and how to file a complaint.
  • All other employees (who are not confidential employees) with information that either a student or employee has been subjected to potential sex discrimination under Title IX must either report such allegations to the Title IX Coordinator or share with the person who told them about the possible discrimination the contact information for the Title IX Coordinator and how to file a complaint.
  • Confidential employees are defined in the proposed regulations, and the proposed regulations have more detailed requirements about their responsibilities and also require institutions to notify participants of the “identity” of all confidential employees.

Provide More Flexibility in the Decision Process on Complaints, Including Removing the Requirement for Live Hearings and Cross-examination

The proposed regulations give higher education institutions more flexibility in the processes used to make determinations on complaints of sex discrimination under Title IX.

  • The decisionmaker may be the Title IX Coordinator or the investigator (i.e., institutions may re-institute the single investigator model).
  • Parties must be given access to all the relevant evidence or an investigative report that summarizes the relevant evidence.
    • If the parties are provided an investigative report, they must also be provided access to the evidence if either party requests it.
  • Parties must be allowed to respond to the evidence before a decision is made on the allegations, but it is up to the institution to determine just when and how that response is obtained (in writing, at a hearing, etc.).
  • Higher education institutions must employ a process that allows the decisionmaker to adequately assess the credibility of parties and witnesses to the extent that credibility is both in dispute and relevant to the allegations. That process may take different forms.
    • The decisionmaker may ask questions either at a live hearing or in individual meetings with parties. The parties may propose to the decisionmaker or investigator questions that they would like to have asked and follow-up questions, including questions challenging credibility. The decisionmaker must ask questions provided by parties as long as relevant and not otherwise impermissible, except that a higher education institution must not ask questions that are unclear or harassing to the party being questioned.
    • If the institution elects to have a live hearing, it may allow advisors for the parties to question the other party and witnesses. If there is a live hearing and a party does not have an advisor, the institution must provide an advisor who may or may not be an attorney.
  • The proposed regulations allow the decisionmaker’s report on whether sex-based harassment occurred to be more streamlined than the current regulations allow.

Allow a Different Process for Complaints Where Only Employees Are Parties

The proposed regulations have a separate section for the process required for higher education institutions to use where there is a student complainant or respondent. Where only employees are involved in alleged sex discrimination under Title IX, higher education institutions can use more streamlined procedures (which may be used by K-12 institutions for all complaints).

  • Parties must be provided a description of the evidence (but not the evidence itself) and a “reasonable opportunity” to respond.
  • The process must allow decisionmakers to adequately assess the credibility of parties and witnesses to the extent that credibility is in dispute and relevant, but the regulations do not specify how that must be done.
  • The decisionmaker’s report on whether sex-based harassment occurred can be much streamlined from what the current regulations require.

Expand the Boundaries of Supportive Measures

The proposed regulations would allow greater burdens on respondents where necessary to provide complainants with access to programs while a complaint is pending.

  • The proposed regulations define supportive measures to include “temporary measures” that may burden a respondent if the measures are temporary and are designed to protect the safety of the complainant or the institution’s educational environment or deter the respondent from engaging in sex-based harassment.
  • The new regulations clarify that supportive measures may include “voluntary or involuntary changes in class, work, housing or extracurricular or any other activity, regardless of whether there is or is not a comparable alternative.”
  • Any supportive measures that burden a respondent may only be in place during the pendency of a complaint.
  • An educational institution must provide a party with the ability to obtain a timely review of the imposition of supportive measures by “an appropriate, impartial employee.”

Impose Requirements for Serving Pregnant Students and Employees

The proposed regulations include new and detailed requirements concerning the treatment of pregnant students, with the Title IX Coordinator as the point person.

  • When an employee is informed of a student’s pregnancy, the employee must promptly inform the student of how the student may notify the Title IX Coordinator and provide the Title IX Coordinator’s contact information.
  • The Title IX Coordinator must provide information to pregnant students, including non-discrimination requirements and availability of reasonable modifications to the institution’s practices, policies and procedures because of pregnancy or related conditions.
  • The Title IX Coordinator must implement, coordinate and document any reasonable modifications provided to a student because of pregnancy or pregnancy-related conditions.
  • Institutions must provide spaces for lactation for students and employees. Employees also must be provided with break time for lactation.

The proposed regulations contain much more, and we will provide more details in coming days.

If you have any questions about the above or about Title IX, please do not hesitate to contact the author.