Department of Education’s New Proposed Regulations Coincide with 50th Anniversary of Title IX
By: Gregg E. Clifton & John Long
The U.S. Department of Education (the Department) released its long-awaited proposed amendments to the regulations for Title IX of the Education Amendments of 1972 in a Notice of Proposed Rulemaking. The proposed rules apply to all entities that are subject to Title IX regulations, including all elementary, secondary, and post-secondary educational institutions that receive federal funding. The proposed regulations, which would replace the Trump Administration’s 2020 regulations, were issued in conjunction with the 50th anniversary of Title IX. The Department also issued a fact sheet about the proposed regulations.
In its announcement of the proposed regulations amendments, the Department stated that the intent of the proposed amendments is to
“restore crucial protections for students who are victims of sexual harassment, assault, and sex-based discrimination” that were weakened by previous regulatory changes.
As expected, in an effort to accomplish this goal, the Biden Administration has proposed significant changes to the current Title IX regulations. The Department explained that the proposed regulations reaffirm the Department’s core commitment to fundamental fairness for all parties, respect for freedom of speech and academic freedom, respect for complainants’ autonomy, and clear legal obligations that enable robust enforcement of Title IX. Specifically, the proposed amended regulations would:
- Prohibit all forms of sex discrimination, including discrimination based on sex stereotypes and pregnancy and applies to sexual orientation and gender identity;
- Expand the definition of sexual harassment;
- Expand protections for students and employees who are pregnant or have pregnancy-related conditions;
- Permit, but no longer require, live hearings and cross-examination to adjudicate sex discrimination complaints;
- Establish clear requirements for schools to conduct a reliable and impartial investigation of all sex discrimination complaints, as Title IX requires as opposed to only formal complaints of sexual harassment;
- Eliminate the current jurisdictional requirements for conduct that occurs off-campus or in conjunction with a study abroad program, which may now be addressed under Title IX; and
- Impose mandatory reporting requirements to a school’s Title IX Coordinator that include all employees at elementary and post-secondary schools, as well as administrative leaders, teachers, and advisors at post-secondary institutions.
Notably, for institutional representatives involved in college athletics,
the Department announced that it will issue a separate Notice of Proposed Rulemaking to address how the Title IX regulations should be amended to address student-athlete eligibility to participate on a specific male or female intercollegiate athletic team.
In accordance with the Administrative Procedure Act, the Department must provide the public opportunity to review and comment on the proposed changes. The public is permitted to submit comments for a period of 60 days following the publication of the proposed changes. While the 60-day period will close fairly quickly, it is anticipated that there will be great interest in the proposed changes, which could result in tens of thousands of comments. This could extend the time needed for completion of the review. After the comments are reviewed by the Department, the Department must then decide whether to proceed with the amendments as originally proposed, issue a new or modified proposal, or withdraw the proposal. A final rule, if issued, will included responses to the comments received.
The current Title IX regulations will remain in effect until a final rule is issued and becomes effective. As a result, all colleges and universities must continue to comply with the Trump Administration’s rule throughout the rulemaking process.
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