On June 23, 2022, the U.S. Department of Education (ED) announced proposed revisions to the regulations effectuating Title IX of the Educations Amendments of 1972 (Title IX). Since then, numerous deadlines set for the release of the final regulations have come and gone while ED reviewed the nearly 250,000 public comments received regarding its proposed changes, many of which would impact how colleges and universities address allegations of sex discrimination and sexual harassment. Recent developments suggest that final regulations are at last on their way.

On February 2, 2024, ED transmitted its long-awaited proposed revisions of the regulations to the Office of Information and Regulatory Affairs (OIRA). OIRA has up until June 1, 2024 to review the regulations before sending them back to the ED for final review and publication.

With this months-long review window still ahead of us, many expect that the final Title IX regulations may not be published until this summer, which could leave colleges and universities with little time to implement necessary changes to their Title IX policies and grievance procedures prior to the start of the next academic year. To best prepare for this possibility, Colleges and Universities should act now to better understand and prepare for the impact that the proposed Title IX revisions may have to current policies and procedures.

Anticipated Key Changes:

Among the more significant proposed changes to the regulations are the following:

• The expansion of the definition of “sex-based” discrimination to expressly include discrimination based on sex stereotypes, sex characteristics, sexual orientation, gender identity, pregnancy or related conditions and parental status.
• The expansion of the definition of hostile environment harassment to include unwelcome sex-based conduction that is either sufficiently severe or sufficiently pervasive to effectively deny a person equal access to an education program or activity.
• The creation of new classifications of employees with different reporting obligations:
  • “Confidential employees” would have no obligation to notify the Title IX Coordinator about possible sex-based discrimination; instead, their only obligation would be to provide contact information for the Title IX Coordinator and information about reporting.
  • “Employees with authority to institute corrective measures” (excluding confidential employees) – would be obligated to notify the Title IX Coordinator upon receiving information about conduct that may constitute sex-based discrimination.
  • “Employees with administrative, leadership, and teaching responsibilities” (excluding confidential employees) would have different reporting obligations for conduct involving a student versus conduct involving an employee:
    • If a student has been subjected to conduct that may constitute sex discrimination, these employees would be obligated to notify the Title IX Coordinator; and
    • If an employee has been subjected to conduct that may constitute sex discrimination, these employees would be obligated to either notify the Title IX Coordinator or provide the reporting party with the contact information for the Title IX Coordinator and information on how to report sex discrimination.
  • All other employees would be obligated to either notify the Title IX Coordinator or provide the individual with the Title IX Coordinator’s contact information and information on how to report sex discrimination.
• Substantial revisions to the formal grievance procedure, including:
  • Expansion of the jurisdictional scope of sex-based hostile environment claims to include incidents that occur off-campus, outside the institution’s education program or activity, or outside the United States;
  • Elimination of the requirement that an individual submits a formal, written complaint to initiate the formal grievance process;
  • Reinstatement of the single investigator model which would allow the decisionmaker to also serve as the Title IX Coordinator or investigator so long as the individual does not have a conflict of interest or bias;
  • Removal of the requirement to conduct live hearings to determine whether sex-based discrimination occurred; and
  • Expansion of the definition of retaliation to include prohibitions against “peer retaliation.”

Steps To Take Now

Whether these and other proposed changes will make it into the final rule remains unknown. Nevertheless, there are a number of steps that colleges and universities should take now to facilitate prompt and successful implementation of new requirements when the Title IX regulations become final.

1. Collaborate with your Title IX team (e.g., Title IX Coordinators investigators, advisors, decisionmakers, and appeal officers) and other internal stakeholders to ascertain the strengths and challenges in the current practices for receiving, investigation, and resolving sex discrimination and sexual harassment allegations.
2. Review the proposed Title IX regulations and preamble and map out the differences between current and proposed Title IX procedures.
3. Identify a point person or team to:

a. oversee the Title IX policy review and revision process when the time comes;

b. identify what, if any, financial and personnel resources are needed to ensure compliance with the revised regulations;

c. develop and implement a communications strategy for informing the campus community of the changes to the Title IX policy and procedures; and

d. ensure appropriate training for the entire campus community, including Title IX practitioners, faculty, students, and staff.