The U.S. Department of Education (ED) today released its long-anticipated proposed regulations to implement Title IX, which bans sex discrimination in educational programs.
The proposed regulations would substantially alter regulations implemented by the Trump administration governing how schools must reply to complaints of sexual harassment and violence. The proposed rules apply to Title IX more generally and would significantly expand the definition of sex discrimination, who it applies to, and in what circumstances schools must take action.
The regulation is hundreds of pages long and more detailed information will be forthcoming from the American Association of Community Colleges (AACC) in the coming days and weeks. Once the proposed rules are published in the Federal Register, the public will have 60 days to file comments. AACC plans to file its own comments and work with other higher education associations on community comments.
Based on a summary of the proposed regulations, some of the major aspects of the proposed regulation include:
- Basic scope of the rule: The proposed regulation would apply to all “sex-based” harassment, not just sexual harassment, as is the case with the current rule enacted by the Trump administration. Sex-based harassment includes “harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity” in addition to sexual harassment.
- Types of harassment: Like the current regulations, the proposed rule encompasses “quid-pro-quo” harassment and other forms of harassment that create a hostile environment. The hostile environment definition would encompass a broader range of conduct than the Trump regulations.
- Where the harassment occurs: Like Obama administration guidance on this issue, a college would be required to address a hostile environment in its education program or activity that was created by sexual harassment that occurred outside of the education program or activity. Conduct outside of the United States would also be included.
- Duty to act: An institution would be required to act more proactively to ensure that its education programs and activities are “free from prohibited sex discrimination at all times,” replacing the current requirement that institutions need only address harassment of which it has actual knowledge, and only in a way that is not “deliberately indifferent.” As under the Obama guidance, most of an institution’s employees would be required to report complaints of harassment they receive to the Title IX coordinator. However, certain employees would be designated to receive complaints from students confidentially.
- Grievance procedures: The proposed regulations would significantly alter one of the most controversial aspects of the Trump regulations: that Title IX complaints must be addressed through a quasi-judicial proceeding that includes a live hearing with cross-examination from the parties’ advisors. Colleges must still have a process to assess the credibility of parties and witnesses, which may be through cross-examination at a live hearing, but could also be achieved by a hearing or meeting at which the decision-maker poses the questions. The proposed rules would no longer require that the investigator and decision-maker be different people, thereby reinstating the “single investigator” model of addressing harassment complaints. Sex-based harassment complaints must be judged using a preponderance of the evidence standard unless other types of harassment are judged using a clear and convincing evidence standard.
The proposed regulations do not address transgender participation in women’s athletics, a recent hot topic. The department notes that it will address this issue in a separate proceeding.
ED will hold a public briefing on the proposed rules on Friday, June 24 at 2:00 p.m. (ET). Register here for that event.