On June 23, 2022, the Office of Civil Rights (OCR) within the Department of Education (DOE) issued proposed new Title IX regulations. OCR will be accepting comments to the proposed regulations through August 22, 2022. At 700 pages, 650 pages of preamble, and 50 pages of regulations, the document is not an easy read; however, the following is a list of some of the more significant proposed changes to the current Title IX regulations issued by the Trump Administration:
1. Defines sex-based harassment to include not only sexual harassment, but also other sex-based conduct, including harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
2. Changes the definition of harassment from “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity,” to “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.”
3. Requires colleges and universities to address sex-based harassment that occurs outside the institution’s programs or activities, such as at an off-campus apartment, or outside the United States, perhaps during a study abroad trip or at a university’s international campus, if the harassment later contributes to a sex-based hostile environment within a university’s education programs or activities.
4. Requires universities to respond promptly to all complaints of sex discrimination, not just formal complaints, as well as complaints from former students.
5. Rescinds the current requirement that colleges and universities hold a live evidentiary hearing with cross-examination by the parties’ advisors. If a university determines that it can conduct a fair and reliable process using a single-investigator model, it can do so.
6. Allows universities to offer informal resolution of a matter even if a formal complaint has not been filed, except where the accused is an employee of the university.
7. Requires that the decision maker assess the credibility of parties and witnesses through live questions, but leaves it to the university to determine whether or not that will include cross-examination by the parties.
8. Allows universities to provide the parties with either access to the evidence gathered in an investigation or a written investigation report (with supporting evidence provided upon request).
9. Requires the use of the preponderance-of-the-evidence standard unless the university uses the clear-and-convincing standard in all similar proceedings, such as with other discrimination complaints.
10. Requires that a university’s grievance procedures give each party an equal opportunity to present and respond to relevant evidence.
11. Provides that students cannot be prevented from participating in programs consistent with their gender identity. However, whether this will be applied to single sex athletic teams will be subject to a separate rulemaking process.
12. Requires a university to offer supportive measures to restore or preserve a party’s access to the university’s education program or activity in both sex-based harassment and sex discrimination cases.
13. Requires some employees to notify the Title IX coordinator when they have information about conduct that may constitute sex discrimination, and requires others who have information about such conduct to either notify the Title IX coordinator or provide contact information for the Title IX coordinator and information about how to report sex discrimination.
14. Allows universities to provide a different standard of proof in employee cases than they do in student cases
While the regulations could be tweaked based upon public comment, now is the time to begin reviewing existing policies and procedures so your institution is prepared when the regulations go into effect.