It’s now official – on July 12, 2022 the U.S. Department of Education officially published draft amendments to the Title IX regulations in the Federal Register. This is an early step in the regulatory process that initiates a 60-day public comment period. We anticipate that the Department will then review and respond to the comments it receives. Based upon those comments, the Department may make further changes to the regulations. Finally, the Department will publish final regulations and establish an effective date for compliance. While we won’t know exactly what the final regulations will require, we now have several insights into what schools can expect.
We’ll cover some of the highlights below, but we want to emphasize that the current process in the regulations will remain in effect until new regulations become effective.
An Expanded Definition of Sexual Harassment
Under the 2020 Title IX regulations, we’ve spent countless hours discussing whether certain sexualized misconduct falls within the definition of “sexual harassment” and, therefore, invokes the formal grievance procedures. The proposed changes expand the scope and application of the Title IX regulations to address any “sex-based harassment.”
Popular media outlets have focused on the fact that the proposed regulations expand on the previous definition of sexual harassment to explicitly include discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. Practically speaking, an even more significant proposed expansion of the definition of sexual harassment is that the proposed regulations replace the 2020 standard of sex-based harassment (“severe, pervasive, AND objectively offensive”) with the broader Title VII standard (“severe OR pervasive”). In other words, SPOO will become SORP (yay, more new acronyms!).
A Heightened Standard to Respond
If you’ve ever heard us talk about Title IX, you might remember hearing “deliberate indifference” over and over…and over. For decades, courts imposed liability under Title IX only when the school acts with deliberate indifference when responding to known sexual harassment. The 2020 regulations officially adopted this standard, which was a significant departure from standards previously used by entities like the Office for Civil Rights (OCR). The proposed regulations appear to reject deliberate indifference in favor of a higher standard that requires schools to respond proactively to any sign of sex-based discrimination that creates a hostile environment. This appears to harken back to an “old” standard (pre-2020), when schools could be found to be in violation of Title IX if they knew or should have known that sex harassment could be occurring, even if district staff do not have actual knowledge that sexual harassment has occurred. This would also mean a return to the “bad old days” where OCR enforces a more strict and less clear legal standard than the federal courts impose.
Return of the Single Investigator Model
The 2020 Amendments prohibited the Title IX Coordinator or investigator from also acting as the decision-maker. In a change that most school districts would likely welcome, the proposed regulations would eliminate this categorical prohibition, relying instead on other procedures promoting the equitable treatment of all parties.
Additional Considerations for Students with Disabilities
The proposed changes address how schools should navigate the difficult intersection between Title IX, the IDEA, and Section 504. If a complainant or respondent is a student with a disability, the Title IX Coordinator has a responsibility to consult with that student's IEP team or Section 504 committee.
What about sports and activities? More to Come . . .
The Department also announced that it intends to take further action to address the participation of transgender students in extracurricular activities. This may come in the form of formal guidance or proposed changes to the Title IX regulations related to sex-segregated programs and activities. We’ll be sure to follow up with any updates on this front as they develop. But the important takeaway is that the Department proposes to add terms like gender identity and sexual orientation to the general nondiscrimination obligations, yet they specifically chose not to address sports and activity participation in these regulations.
For You Gunners
The full text of the proposed regulations can be found here. The US Department of Education also released a fact sheet on the draft rule as well as their summary of the draft rule’s major provisions. For all you normal folks who just want to enjoy your summer, don’t worry. KSB School Law will have plenty of follow up information as the regulations are finalized.
Conclusion
The Biden Administration did not move to repeal the June 2020 regulations published under President Trump. In fact, the published draft expands upon the federal government’s regulation of how schools respond to sexualized misconduct in the K-12 setting. In other words, the work schools put into the 2020 amendments was not for naught, and schools must continue to adhere to the 2020 regulations until any changes become effective.
Over the next several months, we’ll continue to monitor the regulatory process and provide updates about any significant developments. In the meantime, if you have any questions about Title IX compliance now or in the future, don’t hesitate to reach out to Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000. You can also reach all of us at ksb@ksbschoolaw.com.