AGB Policy Alert: Department of Education Publishes Proposed Title IX Regulations on Sex-Based Discrimination

What Board Members Need to Know

Why This Matters

Questions for Board Members

Additional Resources

On Tuesday, July 12, 2022, the U.S. Department of Education (the Department) published a notice of proposed rulemaking (NPRM) that details changes to how it will implement Title IX of the Education Amendments of 1972, otherwise known as Title IX.

This proposal seeks to replace the current Title IX regulations, finalized in 2020.

What Board Members Need to Know

This is a proposed rule and is not final.

Timing

Beginning on July 12, 2022, there is a 60-day comment period for public input. Comments can be made here. Board members should consult with the chief executive or general counsel and Title IX compliance staff before issuing any communication on behalf of the institution or foundation.
The Department will then review all comments before issuing a final rule. Previously, the Department received over 120,000 comments and took more than a year to review and implement the final rule in 2020. It is likely this process will follow a similar timeline.
Any new claims under Title IX will continue to be subject to the current 2020 regulations until a new rule is finalized and published.

Scope and Application of Proposed Rule

Broadly speaking, the proposed rule expands the interpretation and implementation of Title IX beyond earlier versions to address any form of discrimination on the basis of sex (referred to as “sex-based discrimination”), including sex stereotypes, sex characteristics, and pregnancy. This expanded scope also specifically establishes discrimination based on sexual orientation and gender identity as a violation of Title IX. Quid pro quo harassment, hostile environment harassment, sexual assault, dating violence, domestic violence, and stalking continue to fall within the scope of Title IX.
The NPRM does not address the issue of transgender student participation in athletics. The Department indicated it will conduct a separate rulemaking process that will focus on this topic in the future.
The NPRM expands institutions’ areas of responsibility beyond the current regulations, and institutions must address any sex-based harassment wherever they exercise substantial control over the respondent (the individual accused). Institutions’ responsibilities extend to any sex-based discrimination contributing to a hostile environment, including outside any particular educational program or the United States. For example, sex-based discrimination occurring in a semester-abroad program or at a student-organized event recognized by the institution would fall under Title IX. Sex-based discrimination in an online learning platform is also the responsibility of the institution to address.
The proposed rule allows individuals not enrolled or employed by the institution, including visitors and former students, to bring forward Title IX claims.

Institutional Response to Sex Discrimination

The proposed rule mandates that all institutions take action to end any prohibited sex discrimination within the institution, whether there is an official complaint or not.

Expanded Title IX Coordinator and Staff Responsibilities

Any employees who have authority to take corrective action or have administrative leadership or advising responsibilities would be obligated to notify the institution’s Title IX coordinator of a violation, except those employees who are “confidential employees.” This provision in the rule expands and clarifies who must notify the Title IX coordinator, meaning far more employees will need training and guidance regarding their roles and responsibilities under the proposed regulations. Confidential employees in this situation would be required to provide information about contacting the Title IX coordinator and how to report sex discrimination to the Title IX coordinator.
The Title IX coordinator is responsible for identifying barriers that may hinder or prevent individuals from making a complaint and work to reduce or dismantle those barriers.

Grievance Procedures

The NPRM lays out two types of grievance procedures: a standard minimum set of requirements and procedures for all complaints of sex discrimination, and a separate version for when a postsecondary student is involved either as a complainant (the accuser) or a respondent (the accused).
The standard minimum procedure for all complaints of sex discrimination has multiple requirements, including that the complainant and respondent be treated equitably. The so-called “single investigator” model is permissible, assuming the investigator shows no bias and has no conflict of interest.
The version of the grievance procedure that applies when postsecondary students are involved includes allowing the students to have an advisor of their choice during the process. There is no mandate for an institution to hold a live hearing (although it can choose to have such a policy); a decision maker is allowed to question the parties independently.
Institutions must use the preponderance of evidence standard, unless they use the clear and convincing evidence standard in all comparable settings (including situations involving employees).

Pregnancy or Related Conditions

The proposed rule specifies additional remedies for unequal treatment based on pregnancy. Title IX coordinators must provide to affected students the option of individualized, reasonable modifications as needed to prevent discrimination and ensure equal access to the program or activity; allow the student a voluntary leave of absence; and provide a student or employee with a clean, private space for lactation (including providing employees with reasonable break time for such a purpose).

Context and Why This Proposed Rule Matters

Dealing appropriately with allegations of sex-based discrimination is an essential but difficult task, posing potentially significant risks for higher education institutions. Governing boards have a duty to become and remain informed about how sex-based discrimination affects their campuses, and to ensure that administrators are giving appropriate consideration to this issue.

AGB knows that board members genuinely want to get this right, and that they are committed to both promoting and protecting civil rights and to creating an environment that is safe and supportive for the benefit of all campus stakeholders.

In the proposed rule, the Department acknowledges the challenges inherent in establishing these new standards and it welcomes additional questions, suggestions, and concerns.

It is critical to note that there are a number of questions surrounding implementation of these new provisions. Should state law conflict with these federal regulations, institutions would likely need to rely on counsel to reconcile these differences and determine appropriate steps. For example, many institutions are situated in states that require a live hearing. Some experts advise that these Title IX regulations are a “floor”—so long as state law does not conflict with the regulations, institutions must comply with both.

In addition, recent judicial action regarding the Department’s Title IX guidance (issued last year) on sexual orientation and gender identity discrimination doesn’t immediately affect this regulation. In early July, a federal judge temporarily blocked the Department’s Title IX guidance due to claims that the guidance interferes with current state laws and should have gone through notice and comment. While this court decision and the NPRM outlined in this alert are related, the action by the court has no immediate impact on the Department’s process for considering comments for this proposed regulation.

Questions for Board Members

Has the board discussed legal developments and national trends regarding Title IX and sex-based discrimination at both the state and federal levels?
Has the board reviewed the institution’s policies regarding sexual harassment and discrimination, and discussed their implementation by appropriate administrators? How often should the board discuss the efficacy of those policies?
Does the board know which administrators are primarily responsible for Title IX compliance and under what circumstances it is appropriate for the board (or an appropriate board committee) to meet with those administrators?
Have the board and administration considered any additional campus resources that may be required to comply with these proposed regulations?