U.S. Department of Education Issues Proposed Revisions to the Title IX Regulations Regarding Sexual Harassment

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Pullman & Comley - School Law

On the 50th anniversary of Title IX, the U.S. Department of Education released draft revisions to Title IX’s regulations.  The draft regulations and supporting commentary are approximately 700 pages long and will take some time to analyze.  There will now be a public comment period and the federal Department of Education must then analyze and respond to the comments before adopting final regulations.  Nonetheless, this is the first step.  This post is intended merely to give a high-level overview of some of the proposed changes.  More information on the proposed revisions to Title IX’s regulations will be forthcoming in this blog soon, but for now here are some of the highlights:

Instead of focusing solely on sexual harassment, the proposed regulations address discrimination based on sex, including protections against discrimination based on sex stereotypes, sexual orientation, gender identity and expression, and pregnancy.  The draft regulations include specific provisions requiring accommodations for pregnant students.  The regulations also specifically include provisions dealing with sex-based discrimination and harassment against employees.

The proposed regulations redefine “sexual harassment” to include “unwelcome sex-based conduct that is sufficiently severe or pervasive that, based on the totality of the circumstances and evaluated subjectively and objectively, . . . denies or limits a person’s ability to participate in or benefit from the recipient’s education program or activity,” thus significantly broadening the definition of conduct that constitutes “sexual harassment” pursuant to Title IX.  Additionally, the proposed regulations expand the jurisdiction of Title IX to cover some off-campus conduct, including but not limited to sex-based harassment occurring outside of the educational program or activity and/or outside the United States that contributes to a sex-based hostile educational environment. The proposed regulations further allow complainants who have left the educational institution they attended while the alleged conduct occurred to file a complaint and have it investigated. 

The proposed regulations require additional training for all K-12 school staff regarding the scope of conduct that constitutes sexual discrimination (including sexual harassment) and how to report sexual discrimination, and imposes an affirmative duty on K-12 employees (other than confidential employees whose communications with students are protected from disclosure) to report known sexual harassment and discrimination to the Title IX Coordinator.  The regulations eliminate the requirement that the decision-maker cannot be the same person as the investigator and/or Title IX coordinator.

In another big change, the proposed regulations would allow a school district to take supportive measures that burden the respondent, such as involuntary changes in classes, extracurricular or other activities regardless of whether there was an equivalent alternative, for the duration of the grievance process, in order to preserve the complainant’s access to the education program or activity, provided that the respondent has been given due process prior to imposing the restriction. 

Perhaps the biggest change is the elimination of the draconian complaint process at the K-12 level in favor of a more flexible grievance procedure that can be tailored to the age and maturity of the parties.  The regulations eliminate many of the processes, such as sharing of all information reviewed by the investigator, that appeared to violate FERPA and those that seemed particularly unsuited to K-12 schools.

In materials published simultaneously with the proposed regulations, the US Department of Education indicated that it would engage in separate rulemaking to address Title IX’s application in the athletic context, including what criteria recipients may be permitted to use to establish students’ eligibility to participate on a particular male or female athletic team.

Stay tuned for further details on the proposed regulations and what they might mean both for K-12 schools and post-secondary institutions.

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