by Veronica Potter
On June 23, 2022 ““ on the 50th anniversary of Title IX ““ the Department of Education released a Notice of Proposed Rulemaking (NPRM) with its proposed Title IX regulations. The proposed regulations were long awaited, as the plan to replace the existing 2020 Title IX regulations (2020 Regulations) enacted by the Trump Administration was announced shortly after President Biden took office.
The unofficial version of the NPRM is available online now, and the official version will be published in the Federal Register within a couple weeks. The Department also released a short fact sheet and a summary chart of the proposed regulations.
It is important to note that the 2020 Regulations are still in effect. These regulations are proposed and must go through the public comment period before they go into effect. After the NPRM is published in the Federal Register, there will be 60 days to submit comments. After the public comment period closes, the Department will have to review the comments and finalize the regulations. This process could take a significant amount of time – for the 2020 Regulations, more than 15 months elapsed between the close of the public comment period and the release of the final regulations.
As expected, there are many changes in the proposed regulations. This article focuses on the changes that will affect higher education and the grievance process for complaints of sexual harassment. The proposed regulations also address other issues, and we will continue to analyze those proposed changes.
1. The proposed regulations would have a broader scope than the 2020 Regulations.
- The proposed regulations would apply to all sex discrimination, whereas the 2020 Regulations only covered sexual harassment, as defined by the regulations. Under the proposed regulations, sex based harassment is one type of sex discrimination.
- The proposed regulations would apply to more off campus conduct. The 2020 Regulations were limited in application to conduct occurring under an institution’s education program or activity, and generally excluded off campus conduct. Under the proposed regulations, institutions have the “obligation to address a sex-based hostile environment under its education program or activity, even if sex-based harassment contributing to the hostile environment occurred outside the recipient’s education program or activity or outside the United States.”
2. There would be a new definition for “sex based harassment.”
- The proposed regulations use the term “sex based harassment” instead of “sexual harassment.” Sex based harassment still includes “quid pro quo” harassment (an employee conditioning a benefit or service on a person’s participation in unwelcome sexual conduct) and specific offenses (sexual assault, dating violence, domestic violence, and stalking).
- The proposed regulations would change the definition of hostile environment harassment to include “[u]nwelcome sex-based conduct that is sufficiently severe or pervasive that, based on the totality of the circumstances and evaluated subjectively and objectively, it denies or limits a person’s ability to participate in or benefit from the recipient’s education program or activity” (emphasis added). The 2020 Regulations required conduct to be “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity” (emphasis added). The definition in the proposed regulations would include more conduct than that of the 2020 Regulations.
- The proposed regulations state that whether a hostile environment has been created is a fact specific inquiry, and provide a list of factors for institutions to consider in making such an inquiry.
3. Institutions would be required to take prompt and effective remedial action.
- The proposed regulations would require that when the Title IX Coordinator has knowledge of conduct that could constitute sex discrimination, they must not only contact the complainant to provide information on the grievance process and offer supportive measures, but they must also “[t]ake other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur within the recipient’s education program or activity, in addition to remedies provided to an individual complainant.” The 2020 Regulations only required the institution to respond in a way that is not “deliberately indifferent.”
4. There would be changes to the process for implementing supportive measures.
- Like the 2020 Regulations, the proposed regulations require institutions to offer non-punitive, non-disciplinary supportive measures to complainants and respondents at no cost. However, there are some differences in the implementation of supportive measures.
- Under the proposed regulations, parties can appeal some decisions related to supportive measures – when a party is affected by a decision to provide, deny, modify or terminate a supportive measure, the party must have the timely opportunity to seek modification or reversal from an impartial employee.
- The proposed regulations also allow supportive measures to burden the respondent, but only during the pendency of a grievance procedure and only to the extent necessary to restore or preserve complainant’s access to the education program or activity. Such supportive measures cannot be implemented for punitive or disciplinary reasons. The proposed regulations include as examples “voluntary or involuntary changes in class, work, housing, or extracurricular activities” (emphasis added). Though it should be noted that the proposed regulations still require the Title IX Coordinator to treat the complainant and respondent equitably.
5. Institutions would not be required to have a live hearing or cross examination.
- Under the proposed regulations, institutions may adopt a live hearing with cross examination, but are not required to do so. (However, some institutions may still be required to do so through other legal requirements. For example, institutions in Michigan, Kentucky, Ohio, and Tennessee are required to provide cross examination under federal caselaw). The decisionmaker can also be the same individual as the Title IX Coordinator and/or investigator. This means the single investigator model would no longer be prohibited. The 2020 Regulations required a live hearing with cross examination by the parties”™ advisors, which prohibited the single investigator model.
- The proposed regulations do require institutions to have a way for the decisionmaker to evaluate credibility. For processes involving allegations of sex based harassment with a student party, this process could involve the decision maker asking questions of the parties during individual meetings or during a live hearing, or it could involve the parties advisors asking questions during a live hearing. Like the 2020 Regulations, the proposed regulations prohibit the parties from asking each other cross examination questions.
- Though a federal court previously vacated a provision of the 2020 Regulations that prohibited the decisionmaker from considering statements of persons not subject to cross examination, the proposed regulations include a more limited form of this restriction. The proposed regulations require that if a party does not respond to questions related to their credibility, the decisionmaker must not rely on any statement of that party that supports that party’s position. This means that a decisionmaker could still consider statements made by that party against that party’s interest. For example, if a respondent made statements admitting to the alleged conduct, but then refused to answer questions related to their credibility, then the decisionmaker could still consider the respondent’s admissions because those are not statements that support the respondent’s position that they are not responsible for the conduct.
6. Additional steps would be required for the grievance procedures for complaints alleging sex based harassment involving a student.
- The proposed regulations include one set of requirements for all grievance procedures, and then a supplemental set of requirements for grievance procedures complaints alleging sex based harassment involving a student complainant or student respondent. These additional procedures are required whether a student is involved as either a complainant or respondent, regardless of whether the other party is an employee or student.
- These additional requirements include the right to have an advisor of choice, an opportunity to review the investigation report and relevant evidence, and a reasonable opportunity to respond to the evidence.
- For many institutions, this may mean adopting two separate grievance procedures ““ one that applies to allegations of sex based harassment involving a student and another for all other complaints of sex discrimination.
7. More employees would be required to report sex discrimination to the Title IX Coordinator, though with some flexibility.
- The proposed regulations would mandate reporting to the Title IX coordinator in the following instances:
- Any non-confidential employee with authority to take corrective measures must report any conduct;
- Any non-confidential employee with responsibility for administrative leadership, teaching, or advising must report if they have information about a student being subjected to conduct that may be sex discrimination
- Outside of these situations where reporting is mandatory, the proposed regulations allow institutions to either require employees report to the Title IX Coordinator or to require employees to provide information to a person reporting conduct about how to report to the Title IX Coordinator. This includes the following instances:
- Any employee with responsibility for administrative leadership, teaching, or advising must report if they have information about an employee being subjected to conduct that may be sex discrimination
- Any other employee about any conduct that could be sex discrimination
- Confidential employees would also be required to provide information on how to report to Title IX Coordinator.
- While the proposed regulations do not require all non-confidential employees to be mandated reporters, institutions will need to evaluate the challenges of applying different standards to different groups of employees or different types of complaints in determining the best fit their campuses.
8. There would be changes to the complaint process.
- The proposed regulations would remove the definition of “formal complaint” found in the 2020 Regulations, and instead provide a definition of “complaint” which would include oral and written requests to initiate the grievance process.
- The proposed regulations would allow complainants who are no longer participating in the institutions education program or activity to file a complaint to start the grievance process. The 2020 Regulations only allowed those currently participating in or attempting to participate in the education program or activity to file a formal complaint.
- The proposed regulations do not have mandatory dismissal requirements, where as the 2020 Regulations required the Title IX Coordinator to dismiss formal complaints that fell outside the scope of the 2020 Regulations or did not meet its definition of sexual harassment.
- Under the proposed regulations, a formal complaint would not be a prerequisite for an informal resolution process. However, institutions could determine when informal resolution is appropriate and decline to offer it in some circumstances.
9. Some provisions of the regulations would remain the same as the 2020 Regulations.
- For example, the proposed regulations would maintain several provisions included in the 2020 Regulations:
- Throughout the grievance process, the institution would be required to treat the complainant and respondent equitably.
- The proposed regulations would retain the presumption that the respondent is not responsible for the alleged conduct until determined to be responsible following a grievance process.
- The Title IX Coordinator, investigator, and decisionmaker would still be required to be free from conflicts of interest and bias for or against complainants or respondents generally or an individual complainant or respondent.
10. Not all changes would be related to sex based harassment and grievance procedures.
- The proposed regulations would extend protections of Title IX based on sexual orientation and gender identity. This is consistent with the Biden administration’s executive orders following the Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that Title VII’s prohibition on discrimination on the basis of sex also included a prohibition on the basis of sexual orientation and gender identity.
- The proposed regulations would increase protections for students and employees who are pregnant or have pregnancy-related conditions, including requirements for modifications, leaves of absence, and time and space for lactation.
It is important to understand these proposed regulations to determine whether to submit a comment during the public comment period and to begin the planning process for the eventual release of new regulations. While it is too soon to start revising policies and procedures, understanding these proposed regulations can help institutions evaluate their current policies, procedures, and practices to determine which features are working and which would benefit from a change.
The proposed regulations allow more options for the grievance process, so institutions should give thought to what would be the best fit for their campuses moving forward. For example, the 2020 Regulations mandated a live hearing, and these proposed regulations provide other options to allow the decisionmaker to determine credibility. Some institutions may consider returning to the single investigator model. However, other institutions may determine that it is a better fit to keep the hearing process either because their community has come to expect a live hearing, or because the institution determines it to be the most efficient way to allow the decisionmaker to evaluate credibility. Institutions will need to carefully consider how to best serve their communities and utilize resources to find the best fit for their campuses.
Evaluating and analyzing these options now may be useful if there is a short implementation period when the final regulations are released. As many recall, in 2020, institutions were only given about 100 days to implement new policies in compliance with the regulations.
Our Higher Education Team will continue to review all the details of the proposed regulations. If you have questions about how these proposed regulations might impact your institution, please contact your Tueth Keeney higher education attorney.
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Veronica E. Potter practices primarily in the areas of higher education, litigation, and labor and employment law. Veronica represents colleges, universities, and private employers in education and employment litigation matters. Veronica started her legal career as a prosecutor, where she gained experience in all stages of litigation, including case investigation, discovery, arguing pre-trial motions, and presenting cases to both judges and juries. Prior to joining the firm, Veronica also practiced civil litigation at a large defense firm in St. Louis.
Higher Education ““ Tueth Keeney maintains one of the largest and most successful higher education law groups in the Midwest. Our higher education practice includes representation of numerous colleges and universities throughout Missouri and Illinois. In addition, the Firm is one of approximately twenty law firms in the nation that have been appointed to act as Select Counsel to represent higher education institutions insured by United Educators Insurance Risk Retention Group, Inc., the nation’s largest insurer of colleges and universities. The attorneys in the Firm’s higher education group provide a full range of services to colleges and universities, ranging from day-to-day counseling on legal issues, to representation in complex litigation.