We are barely into 2023, and it’s shaping up to be the biggest year yet for Title IX. From transgender bathroom bans and athletic participation battles to growing scrutiny on general athletics equity and pregnant and parenting students, Title IX will continue to have its moment in the sun in 2023 as it has for the past few years. Of course, the biggest news for Title IX in 2023 will undoubtedly be the issuance of the Biden administration’s new Title IX rule. The Department of Education recently confirmed that it intends to hoist the new regulation on schools in May 2023. Schools, colleges, and universities will once again have to comply with an entirely new grievance structure quickly over the summer.

Those who spent the summer of 2020 scrambling to prepare for the 2020 Title IX rules know that implementing new rules over the summer is a huge feat. If you haven’t already resolved to begin preparing now to be ready for that process when it comes, you should! Like any other New Year’s resolution, there is a risk of giving up without a plan. Don’t have one? Don’t worry. The Thompson & Horton Title IX team has you covered. Keep reading for the essential action plan to help you achieve your Title IX goals in the New Year.

☑️  Resolution 1: Schedule a Meeting with Your Leadership

Your first step is to understand what is coming and, more importantly, make sure your leadership knows what a big deal it is. Getting on your leadership’s calendar in January or February will ensure you have the necessary resources to prepare for the rules. Ensure they know you need time and funding for training, policy updates, and creating necessary templates.

So what is coming? In June 2022, the Department of Education issued proposed rules amending the process schools must use to address certain Title IX complaints—again. Shortly after, OCR sources unofficially confirmed a May or June 2023 release date. Then, earlier this month, the “final action” date for the Biden administration’s proposed Title IX rules was updated to “05/00/2023,” a clear sign that the Department believes it is on track to release the rules sometimes in May 2023.

That’s an ambitious timeline; it took the Trump administration 18 months to review the 124,000 or so comments received to their proposed rule. The Biden administration’s rule received over 235,000 comments, and their self-imposed May deadline gives them only eight months to review those comments, respond to them, and finalize the rule.

Many comments are complicated and raise questions that could require significant clarification or even revision of the proposed rules. For example, the Thompson & Horton Title IX team submitted comments on behalf of two groups often underrepresented in the Title IX regulatory process: K-12 public schools and community colleges. Many of the significant issues in the letters—including impacts on off-campus and extraterritorial conduct, employee-on-employee conduct, and dual enrollment students—impact all schools, colleges, and universities equally.

Although we hope the Department will carefully respond to all comments, including those from the T&H team, schools, colleges, and universities cannot wait for that clarity to begin preparing for the rules. Assuming the Department of Education meets its May 2023 deadline, the rules will almost certainly go into effect a few months later, in August 2023.

What will it take to prepare? The good news is that, for many of us, this isn’t our first rodeo. We know what it will take to implement new rules because we have been doing it since May 2020. You should ensure your leadership understands you will need time and funding for training, policy updates, and creating necessary templates—more on each of these necessities below.

☑️  Resolution 2: Schedule Training

Your next step? Schedule training for summer 2023. Don’t have the time or resources to dedicate to preparing and presenting all the training required by the new rules? T&H will offer its tried and tested comprehensive training packages for the new rules, including required training for your Title IX team, all employees, and confidential employees at affordable flat rates. Our calendars are already filling up fast for summer 2023, so contact me or any other member of Thompson & Horton’s experienced Title IX training team as soon as possible to secure your spot!

The proposed rules will require training for all members of the “Title IX team” (coordinators, investigators, decision-makers, appellate decision-makers, and informal resolution facilitators). We are used to that, but because the rules will almost certainly change in so many important ways, at a minimum, you should block off time on team members’ calendars for a three-hour basic training on the new rules plus a two-hour training on their specific roles. Coordinators should plan to attend the basic and all role training, and it is highly recommended that all members of the Title IX team attend all training sessions. That is why Thompson & Horton offers comprehensive training for your entire Title IX team at affordable flat rates. We know that paying for individual training for each team member is often far outside educational institutions’ budgets. We also allow team members to “stream” training when needed, as we recognize not everyone can attend all of the live training when offered.

The new rules also for the first time require training all employees on identifying and reporting sex-based discrimination and training of confidential employees, as defined by the new rules. Although compliance networks will certainly offer recorded training that you can push out to these employees, only live training can be adapted to fit an immediate need or request from the audience and can be changed immediately if the institution’s needs require it. At Thompson & Horton, we know that not everyone can attend training live, so we offer an innovative mix of live training plus “streaming” options so that school, college, and university employees can benefit from the best of both worlds: A foundation of live training with wrap-around asynchronous learning when needed.

Whatever method you choose, summer schedules are notoriously difficult to manage, with vacations and other required in-service training. Don’t let the new rules arrive without a plan to get in the necessary training before the rules go into effect.

☑️  Resolution 3: Review Your Policies and Procedures

What comes next? Begin reviewing and revising your policies, procedures, handbooks, and other documents with your favorite T&H or other lawyer to get a head start implementing the new rule. Doing so will allow you to learn from our mistakes under the 2020 Title IX rules and provide your community with more than the bare minimum under the new Title IX rules. Contact me or any other member of our Title IX team to get started! Rather wait for a template? Let us know now if you’d like to be on the list for information about our template policies and procedures when the new rule is finalized.

You may be thinking, wait, won’t there be template policies and procedures from Thompson & Horton, our state school boards or college association, and other for-profit providers? Absolutely. But one major lesson we learned from the 2020 Title IX rules is that cookie-cutter, off-the-shelf policies and procedures can spell trouble for schools, colleges, and universities down the road.

Although templates may get you over the initial implementation hurdles, they can wreak havoc on your grievance processes because of several issues, including conflicts with other policies and procedures for non-Title IX matters. And template policies and procedures won’t be all you need—you will still need to develop language for your handbooks, webpages, and other resources. So, even if you start with general templates for the new Title IX rules, you should be prepared to, at minimum, work closely with legal counsel to customize the policy and related materials to meet your institution’s specific needs.

Knowing all that, why wait? You can begin reviewing your policies with legal counsel now to prepare a custom policy that complies with the law but also respects the institution’s unique disciplinary structure, climate, and culture. Yes, some minor changes may need to be made when the final rules are released, but if history is any indication, the vast majority of the proposed rule will go into effect as proposed. So, start now on your review to get a head start on offering your community something better than the bare minimum for your Title IX policies and procedures.

☑️  Resolution 4: Prepare Necessary Templates

Our final resolution? Begin preparing necessary templates, such as checklists, decision trees, letters, and other forms. You may think, “Wait, we haven’t even done that for the 2020 Rules!” You’re certainly not alone. You can kill two birds with one stone by subscribing to Thompson & Horton’s  2022 Title IX Guidebook, which contains all the forms and documents you need to comply with the current Title IX rules. Subscribers will also receive early access and a discount to our 2023 Title IX Guidebook subscription, which will be released upon finalization of the rule. Those who would prefer to wait to subscribe once the new rules come out can let us know now to be added to our notification list.  

Those who have attended my training know I often refer to Title IX as a “paper problem.” The rules build on many techniques schools, colleges, and universities already use to evaluate, investigate, and adjudicate civil rights and other grievances. The rules raise the stakes for Title IX complaints, however, necessitating a comprehensive documentation system to keep team members on track. There is no reason to wait to begin preparing these documents for your institution.

For those that would prefer to have the work done for them, check out our 2022 Title IX Guidebook. It combines the lessons we have learned from helping hundreds of schools, colleges, and universities comply with the 2020 Title IX regulations. It puts all that information in a single, easy-to-follow Coordinator checklist with links to the forms, checklists, and other tools the entire team needs to address a Title IX complaint from start to finish. And most importantly, subscribers will receive early access to and a discount on our 2023 Title IX Guidebook when it is released after the rules are finalized.

It may seem overwhelming, but these bite-sized steps will help keep your school, college, or university on track to comply with the “new” final regulations when released. As always, never hesitate to contact me or any other member of our Title IX team with questions. We have no doubt we will make it through this significant change together, again!