Fox Rothschild LLP

The U.S. Department of Education has released new Title IX Regulations that direct how elementary, secondary and post-secondary institutions must respond to allegations of sex discrimination in educational programs and activities that receive federal financial assistance. The new regulations, which the department describes as “final regulations,” are encompassed in a 2033-page document.

The department states, in summary, that the “[F]inal regulations are premised on setting forth clear legal obligations that require recipients to:

  • promptly respond to individuals who are alleged to be victims of sexual harassment by offering supportive measures;
  • follow a fair grievance process to resolve sexual harassment allegations when a complainant requests an investigation or a Title IX Coordinator decides on the recipient’s behalf that an investigation is necessary; and
  • provide remedies to victims of sexual harassment.”

Notably, the regulations require live testimony hearings in connection with investigations of alleged assaults, and permit an advisor, which may be an attorney, for a student accused of committing sexual assault to cross-examine his or her accuser.

Schools, also referred to as "recipients," have until August 14, 2020 to take the requisite steps to develop or revise policies and procedures to be in compliance with these new final regulations.

The department has made clear in the document and press release that the regulation “carries the full force of law.” As stated in the document, the department believes that sexual harassment affects “the equal access to education that Title IX is designed to protect” and this problem warrants legally binding regulations addressing sexual harassment as a form of sex discrimination under Title IX, instead of mere guidance documents which are not binding and do not have the force and effect of law. The department pledges to enforce these regulations and ensure accountability.

The much-anticipated new regulations were released May 6, 2020 by Secretary Betsy DeVos following a lengthy 18-month process that was initiated when a Notice of Proposed Rulemaking (NPRM) was published by the Secretary on November 29, 2018. Following the release of the NPRM, a comment period was offered by the department to elicit input. Over 124,000 comments were received by the department regarding the proposed regulations.

Additional Information

Final Regulations: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance

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