This analysis was prepared by Venable, LLP, on behalf of AACOM.

On June 23, 2022—the 50th anniversary of the enactment of Title IX of the Education Amendments of 1972 (“Title IX”), a civil rights law prohibiting discrimination on the basis of sex in educational programs or activities receiving federal financial assistance—the U.S. Department of Education (the “Department”) released a Notice of Proposed Rulemaking (“NPRM”) making significant changes to the Title IX implementing regulations. The proposed regulations will materially alter the responsibilities of federally funded elementary schools, secondary schools, and postsecondary institutions (collectively referred to as “recipients” in the draft regulations) and their Title IX coordinators when responding to complaints of all forms of sex discrimination, including sex-based harassment and sexual violence. The NPRM responds to two overarching concerns from students, parents, recipients, advocates, and other concerned stakeholders, namely that: (1) there is a need for greater clarity on how to ensure that complaints of sex-based harassment are resolved in a prompt and equitable manner; and (2) the current regulations (implemented in 2020 under the Trump administration) do not adequately clarify or specify the scope of sex discrimination prohibited by Title IX. This NPRM does not address transgender students’ eligibility to participate on a particular male or female athletics team, which will be included in a separate forthcoming rulemaking. 

Key Points of the Proposed Rules

The draft Title IX regulations propose to:

• Clarify that Title IX’s prohibition on sex discrimination includes discrimination based on sex stereotypes and pregnancy and applies to sexual orientation and gender identity;
• Expand and refine the definitions of hostile environment, sexual harassment, and retaliation;
• Expand protections for students and employees who are pregnant or have pregnancy-related conditions;
• Clarify situations where off-campus conduct may violate Title IX;
• Clarify the steps a recipient (and its Title IX coordinator) must take when any of the recipient’s employees receive a sex discrimination complaint (i.e., removing the “actual notice” standard);
• Permit, but not require, live-hearings or the single-investigator model, and cross examination, to adjudicate sex discrimination complaints; and
• Permit a recipient to use an informal resolution process whenever it receives a Title IX complaint, not just when a formal complaint has been filed.

Comment Period

Comments must be received by September 12, 2022 and must be submitted via the federal eRulemaking Portal at www.regulations.gov. Commenters should clearly identify the specific section or sections of the proposed regulations addressed and arrange comments in the same order as the proposed regulations. Comments should indicate they are submitted in response to “Docket ID ED 2021-OCR-0166.”

Summary of Major Provisions

• Prohibiting All Forms of Sex Discrimination (§ 106.10). The proposed regulations would prohibit all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
• “Sex-Based Harassment” (§ 106.2). The proposed regulations would define sex-based harassment to include sexual harassment; harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; quid pro quo harassment; and harassment that creates a hostile environment. The current regulations cover sexual harassment but not the other forms listed above. Also, the proposed regulations broaden the hostile environment standard to prohibit unwelcome sex-based conduct that is sufficiently severe or pervasive to deny or limit a person’s ability to participate in or benefit from the recipient’s education program or activity. The current regulations prohibit unwelcome sex-based conduct only if it denies a person equal access to an education program or activity.
• Off-Campus Conduct (§ 106.11). Title IX requires recipients to address all sex discrimination in their education programs or activities. Under the proposed regulations, this includes conduct that occurs:
• In any building owned or controlled by a student organization that is officially recognized by a postsecondary institution; and
• Off-campus when the accused is a representative of the recipient or otherwise engaged in conduct under the recipient’s disciplinary authority.

The current regulations do not require an institution to address sexual harassment that occurred outside of the institution’s education program or activity or outside of the United States.

• Reporting Sex Discrimination (§ 106.44(c)). The proposed regulations expand the type of employees required to notify the Title IX coordinator of conduct that may constitute a violation of Title IX. An employee or other recipient who has authority to take corrective action or, for incidents involving students, has responsibility for administrative leadership, teaching, or advising in the recipient’s education program or activity would be obligated to notify the Title IX coordinator. All other employees (except confidential employees) would be obligated to notify the Title IX coordinator or provide an individual with the Title IX coordinator’s contact information and information about reporting.
• Training (§§ 106.8(d), 106.44(c)–(d), 106.45(a)(2)). Recipients would be required to train their employees on (1) notification and information requirements; (2) the institution’s obligations to address sex discrimination; and (3) the scope of the conduct that constitutes sex discrimination.
• Filing a Complaint (§ 106.2, 106.45(a)(2), 106.44(b)). The proposed regulations permit a complainant to file a complaint about sex discrimination they experienced even if they have left the recipient’s education program or activity as a result of that discrimination or for other reasons. Under the current regulations, Title IX complaints by former students or employees are not permitted.

The Title IX coordinator is required to monitor for barriers to reporting information about conduct that may constitute sex discrimination under Title IX. The recipient would then need to take steps reasonably calculated to address barriers the Title IX coordinator identifies. 

• Response to Sex Discrimination (§ 106.44(a), (f)–(g)). The current regulations require an institution to respond to possible sexual harassment only when the institution has “actual knowledge,” i.e., employees with authority to institute corrective measures have notice of sexual harassment or alleged sexual harassment. The proposed regulations expand the recipient’s Title IX obligations—if any employee has knowledge of a possible Title IX violation, the recipient must take prompt and effective action to end any prohibited sex discrimination that has occurred in its education program or activity, prevent its recurrence, and remedy its effect. Upon being notified about possible sex discrimination, the Title IX coordinator would be required to take the following steps:
• Treat the complainant and respondent equitably at every stage of the recipient’s response.
• Notify the complainant of the recipient’s grievance procedures and, if a complaint is made, notify the respondent of the grievance procedures and notify the parties of the informal resolution process, if any.
• Offer and coordinate supportive measures, as appropriate, to the complainant and respondent.
• In response to a complaint, initiate the recipient’s grievance procedures or informal resolution process.
• In the absence of a complaint or informal resolution process, determine whether to initiate a complaint of sex discrimination to address conduct that may constitute sex discrimination under Title IX in the recipient’s education program or activity.
• Take other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur in the recipient’s education program or activity, in addition to providing remedies to an individual complainant.

The proposed regulations require recipients to offer supportive measures as appropriate to the complainant and/or respondent to the extent necessary to restore or preserve that person’s access to the recipient’s education program or activity. Supportive measures may include, for example, counseling, extension of deadlines, restrictions on contact between the parties, and voluntary or, for the first time, involuntary changes in class, work, or housing. The current regulations require only that a recipient treat a complainant and respondent equitably by providing remedies to a complainant when it has determined that sexual harassment has occurred and by following a grievance process before imposing disciplinary sanctions or other actions on a respondent.

• Grievance Procedures (§ 106.45). The current regulations include detailed requirements for grievance procedures only for complaints of sexual harassment. The proposed regulations adapt the current regulations to apply to all complaints of sex discrimination with specific changes that would take into account the age, maturity, and level of independence of students in various educational settings; the particular contexts of employees and third parties; and the need to ensure that recipients adopt grievance procedures that include basic and essential requirements for fairness and reliability for all parties that are well suited to implementing Title IX’s nondiscrimination guarantee in their respective settings. Recipients would be required to adopt written grievance procedures that incorporate the following:
• General Requirements:
  • Equitable treatment of complainants and respondents.
  • Title IX coordinator, investigators, and decisionmakers must not have conflicts of interest or bias.
  • Decisionmaker may be the same person as the Title IX coordinator or investigator.
  • A presumption that the respondent is not responsible until a determination is made at the conclusion of the grievance procedures.
  • Reasonably prompt timeframes for all major stages.
  • Reasonable steps to protect privacy of parties and witnesses.
  • Objective evaluation of relevant and not otherwise impermissible evidence.
  • Notice of the allegations to the parties.
  • Dismissals permitted in certain circumstances, but not required.
  • Consolidation permitted for complaints arising out of the same facts or circumstances.
  • Investigation Requirements:
    • Burden is on the recipient to gather sufficient evidence.
    • Equal opportunity for all parties to present relevant fact witnesses and other evidence.
    • Determination by the decisionmaker of what evidence is relevant and what evidence is impermissible.
    • A description provided to the parties by the recipient of the relevant and not otherwise impermissible evidence, as well as a reasonable opportunity to respond.
  • A process that enables the decisionmaker to assess the credibility of the parties and witnesses when credibility is in dispute and relevant.
  • Clear processes for determining whether sex discrimination occurred, including:
    • Determining whether sex discrimination occurred using the preponderance of the evidence standard of proof, unless the clear and convincing evidence standard is used in all other comparable proceedings, including other discrimination complaints, in which case that standard may be used in determining whether sex discrimination occurred.
    • Notifying parties of the outcome of the complaint and any opportunity to appeal.
    • When there is a determination that sex discrimination occurred, the Title IX coordinator provides and implements remedies for the complainant or others whose access to the recipient’s education program or activity has been limited or denied by sex discrimination and takes other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur.
    • The grievance procedures are completed before imposing any sanctions.
    • A recipient is prohibited from disciplining a party, witness, or other participant for making a false statement or for engaging in consensual sexual conduct based solely on the determination of whether sex discrimination occurred.
  • Parties are permitted to choose to participate in an informal resolution process if one is provided by the recipient.
  • Grievance procedures must describe the range of possible supportive measures and a range or list of disciplinary sanctions and remedies for sex-based harassment complaints.
• Additional Requirements for Grievance Procedures for Sex-Based Harassment Involving a Postsecondary Student (§ 106.46). In addition to the requirements described above, a postsecondary institution’s prompt and equitable written grievance procedures would be required to include the following:
• Written notice to the parties of allegations, dismissal, delays, meetings, interviews, and hearings.
• Opportunity to have an advisor of the party’s choice at any meeting or proceeding.
• Equitable access to relevant and not otherwise impermissible evidence or to a written report summarizing the evidence.
• A process to assess credibility of parties and witnesses, when necessary, that includes either:
  • Allowing the decisionmaker to ask relevant and not otherwise impermissible questions in a meeting or at a live hearing and allowing the parties to propose relevant and not otherwise impermissible questions for the decisionmaker or investigator to ask during a meeting or live hearing.
  • Allowing an advisor for each party to ask relevant and not otherwise impermissible questions to other parties and any witnesses during a live hearing.
  • Permitting, but not requiring, a live hearing. When a live hearing is permitted, a recipient must allow the parties, on request, to participate from separate locations using technology.
  • Not permitting questions that are unclear or harassing of the party being questioned.
  • Not relying on a statement of a party that supports that party's position if the party does not respond to questions related to their credibility, and not drawing an inference about whether sex-based harassment occurred based solely on a party's or witness's refusal to respond to questions related to their credibility.
  • Providing written notice of the determination that includes a description of the allegations, information about the policies and procedures used to evaluate the allegations, the decisionmaker’s evaluation of the relevant evidence and determination of whether sex-based harassment occurred, disciplinary sanctions and remedies if relevant, and information about appeal procedures.
  • Providing an opportunity to appeal based on procedural irregularity, new evidence, and conflict of interest or bias, as well as any other bases offered equally to the parties by the recipient.
• Informal Resolution (§ 106.44(k)). The current regulations permit informal resolution only if a formal complaint alleging sexual harassment has been filed. Except in situations in which an employee is accused of sex discrimination against a student, the proposed regulations would permit a recipient to offer an informal resolution process if appropriate. Participation in informal resolution must be voluntary.
• Retaliation (§§ 106.2, 106.71). The proposed regulations would define retaliation for the first time and clarify that Title IX’s ban on retaliation includes peer retaliation. 
  “Retaliation” would mean intimidation, threats, coercion, or discrimination against anyone because the person has reported possible sex discrimination, made a sex-discrimination complaint, or participated in any way in a recipient’s Title IX process. A recipient would be prohibited from taking action against a student or employee under its code of conduct for the purpose of intimidating, threatening, coercing, or discriminating against someone because they provided information or made a complaint regarding sex discrimination. Peer retaliation, which would be defined as retaliation by one student against another student, would also be prohibited.
• Discrimination Based on Pregnancy or Related Conditions (§§ 106.2, 106.21(c), 106.40, 106.57). Recipients would be required to protect students and employees from discrimination based on pregnancy or related conditions, including by providing reasonable modifications for students, reasonable break time for employees for lactation, and lactation space for students and employees, as well as allowing the student to take a voluntary leave of absence for medical reasons and restatement upon return. A recipient would also be required to ensure that when a student tells a recipient’s employee of the student’s pregnancy or related conditions, the employee must provide information on how to contact the Title IX coordinator.

Please contact AACOM Government Relations at aacomgr@aacom.org with questions or for further information.

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