Nine Things to Know About the 2022 Proposed Title IX Rules
By Jackie Gharapour Wernz
On the Fiftieth anniversary of Title IX of the Education Amendments of 1972, the U.S. Department of Education released proposed amendments to the Title IX regulations. The rules are just a proposal—don’t go throwing out your current copy of the 2020 regs just yet! The earliest they will become effective would be in time for the 2023–2024 school year. When they do, they likely will include some changes from the proposed version.
However, because the final rules that become effective likely will be similar to those proposed, it makes sense to familiarize yourself with them now. If you haven’t already, watch the Thompson & Horton free on-demand webinar, Title IX Double Take: A Side-by-Side Comparison of the Current and Proposed Title IX Rules, which provides a fast-paced and thorough side-by-side comparison between the current and proposed rules.
Keep reading here for a quick rundown of the nine top changes in the proposed rules!
1. Broader Application to “Sex Discrimination”
The current Title IX regulations include an incredibly prescriptive process that must be followed for all conduct that meets the rules’ definitions of Title IX “sexual harassment,” “in an education program or activity,” and “against a person in the United States.” The new rules require a somewhat less prescriptive set of grievance procedures that would be much more broadly applicable.
Specifically, the new rules would require the Title IX grievance procedures to be used for any information about “sex discrimination.” Sex discrimination includes sexual harassment but also things like sex-based harassment, different treatment and impact based on sex (such as in single-sex programming or discipline), failures to accommodate based on sex (including pregnancy and LGBTQI+ status), and retaliation.
Accordingly, if the rules as written become law, schools, colleges, and universities will be required to address a much larger number of complaints than currently required under the 2020 Title IX rules.
2. Spring Break Here We Come?
Another broadening that the proposed Title IX regulations would bring relates to conduct that occurs outside of the United States or off-campus and outside the education program or activity. The Title IX statute says, “No person in the United States” will be subjected to discrimination based on sex in an educational institution’s “education program or activity.” The 2020 Title IX rules interpret that language to require that conduct must occur in the United States and, if off-campus, within the school’s program or activity to be covered by the grievance process in the rules.
The proposed rule would make clear that an educational institution is on the hook to respond to alleged sex-based discrimination that occurs outside of the United States and off-campus and outside the educational program or activity if there is an alleged hostile environment back home in the educational institution’s education program or activity and the initial conduct “contributed” to that in-program hostile environment. The preamble to the proposed rules provides the following example:
For example, Student A reports that Student B sexually assaulted her while participating in the recipient’s study abroad program and both students have now returned to campus in the United States. Student A reports that Student B has been taunting her with sexually suggestive comments about the prior assault since their return to campus. Because of the sexual assault and Student B’s continuing conduct, Student A is unable to concentrate or participate fully in her classes and activities where Student B is present. In this scenario, because Student A has alleged a hostile environment based on sex within the recipient’s education program or activity within the United States, the recipient would have an obligation to take action to address those allegations.
Even under the 2020 rules, however, if the original conduct occurring outside of the United States or off-campus and outside of an education program or activity results in a hostile environment in the United States and within the program or activity, the school, college, or university would likely be on the hook for addressing the on-campus sexual hostile environment. So the Department’s example is somewhat unhelpful in understanding what the proposed rules might add to the equation.
What might it be adding? The proposed rules do not go so far as to say that the school must address every instance of sex-based misconduct occurring outside of the U.S. or off-campus and outside of the education program or activity. But the language about “contribut[ing]” to a hostile environment in the education program or activity raises the question of whether a school, college, or university must investigate the behavior that occurs outside the U.S. or off-campus and outside of the education program or activity. That would be a significant change if it is indeed what the Department of Education intends from the “contributing” language.
3. Mo’ Quid Pro Quo
Under the Title IX rules in effect today, one type of “sexual harassment” that must be addressed using the grievance process outlined in the rules is an employee of the educational institution conditioning the provision of an aid, benefit, or service of the educational institution on an individual’s participation in unwelcome sexual conduct. This conduct is commonly referred to as “quid pro quo” sexual harassment, and because it is part of what I call the “Title IX Big Five” (sexual assault, domestic violence, dating violence, stalking, and employee quid pro quo), no additional analysis of the severity, pervasiveness, objective offensiveness, or impact of the conduct is required to find that it is “Title IX sexual harassment.”
The proposed regulations would broaden the definition of quid pro quo sexual harassment. Specifically, the covered conduct is defined as an employee, agent, or other person authorized by the educational institution to provide an aid, benefit, or service under the educational institution’s education program or activity explicitly or impliedly conditioning the provision of such an aid, benefit, or service on a person’s participation in unwelcome sexual conduct.
The proposed changes recognize that some individuals who are not employees can also use their positions of authority to coerce individuals into unwelcome sexual conduct. Even a student who is granted authority over an aid, benefit, or service (such as a school newspaper editor who conditions the publication of a student photographer’s photo in the school paper on participation in unwelcome sexual conduct) would be covered by the Title IX process, whether or not the conduct is severe, pervasive, or would reasonably have any particular impact on the target.
Including the phrase “explicitly or impliedly” in the quid pro quo definition would impact the Title IX grievance process less. Even under the current rules, quid pro quo need not be explicit to be covered as quid pro quo. Adding the language “explicitly or implicitly” to the rules is one of the many examples where the proposed rules would simply codify our current understanding of the 2020 Title IX rules without adding any new responsibilities.
4. Goodbye “SPOO,” Hello “SORP”
Under the current Title IX regulations, if conduct is not part of the Title IX Big Five, it is only “sexual harassment” under Title IX if it is unwelcome conduct based on sex that is “so severe, pervasive, and objectively offensive” that it “effectively denies” equal access to the educational institution’s education program or activity. Such conduct is commonly referred to as “hostile environment sexual harassment,” sometimes shortened to “SPOO” for “severe, pervasive, and objectively offensive.”
Under the proposed rules, conduct would create a “hostile environment” if it is unwelcome conduct based on sex 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 educational institution’s education program or activity. Many are already referring to this standard as “SORP” for “severe or pervasive,” and it is undoubtedly a much lower standard than “SPOO.”
The proposed rules would also codify several factors to consider when deciding whether a hostile environment is created. Those include:
1. The degree to which the conduct affected the complainant’s ability to access the recipient’s education program or activity
2. The type, frequency, and duration of the conduct
3. The parties’ ages, roles within the recipient’s education program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the alleged unwelcome conduct
4. The location of the conduct, the context in which the conduct occurred, and the control the recipient has over the respondent, and
5. Other sex-based harassment in the recipient’s education program or activity.
These new factors and the new language about “based on the totality of the circumstances and evaluated subjectively and objectively” are not really anything new. We already use those factors and that standard when deciding whether there is a hostile environment under Title IX. These are two more examples of the proposed rules codifying our current understanding of the law.
But the change from “SPOO” to “SORP” would be big. It would take us back to a standard more like the one used before the 2020 Title IX rules. Way back in the 1997, OCR’s guidance on sexual harassment defined a hostile environment as “conduct of a sexual nature is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program, or to create a hostile or abusive educational environment.” Although the way OCR referred to this standard over the years, it generally remained the same up until the 2020 Title IX regulations and it has generally been a “SORP”-like standard. When the 2020 rules went into effect in August 2020, the Department for the first time made the Title IX administrative standard (enforced by OCR) the same as the standard used in the courts for lawsuits for money damages: “severe, pervasive, and objectively offensive.” If the proposed rules go into effect, that change will have been short-lived.
What would the change mean? It would mean that many more incidents of misconduct would fall under the Title IX process as “hostile environment” sex-based harassment.
5. Mixing Up the Methods
With all the broadening of the situations in which a complaint can be filed, school administrators may rightfully be worried about having to apply the incredibly complicated process from the 2020 Title IX rules to all of those potential new complaints. The current rules include lengthy, cumbersome processes unlike any other type of grievance or complaint in the education context.
The good news is that the processes in the proposed Title IX rules are less prescriptive than those in the current rules. There are two procedures, however, so they aren’t necessarily less confusing. In short, the rules contain one procedure (proposed 34 C.F.R. Section 106.45) for all complaints other than those involving sex-based harassment in higher education and another (proposed 34 C.F.R. Section 106.46) that applies only to those involving sex-based harassment and involving at least one postsecondary student. For our K-12 friends, the good news is you only have to think about one procedure (106.45), but higher education folks will need to wrestle with both (106.45 and 106.46). What are some of the changes we see in those procedures?
6. Bye, Bye Ten-Day Review Periods?
One of the most cumbersome parts of the investigation process in the current rules is that the investigator must allow the parties two separate ten-day review periods during the investigation process. The first period is for the “directly related evidence,” to which parties must be provided access, and a ten-day period to review and respond before the investigator finalizes the investigation report. Then the investigator must send the parties the investigation report, and the parties must be allowed another ten-day period to review and respond before any final determination can be made.
Under the proposed rules, those steps would be gone for K-12 and non-harassment higher education complaints. All that would be required for those complaints would be to “provide each party with a description of relevant/permissible evidence with a reasonable opportunity to respond.”
For higher education sex-based harassment complaints, the educational institution would be required to provide more evidence than that, but not as much as currently required. Specifically, for higher education complaints involving sex-based harassment allegations, a postsecondary institution must provide either equitable access to the relevant and not otherwise impermissible evidence or the written investigative report that accurately summarizes this evidence. If the postsecondary institution provides an investigative report, it must further provide the parties with equitable access to the relevant and not otherwise impermissible evidence upon the request of any party. A postsecondary institution must also provide the parties with a reasonable opportunity to review and respond to the evidence before determining whether sex-based harassment occurred.
Finally, suppose a postsecondary institution conducts a live hearing as part of its grievance procedure. In that case, the proposed rules would require the educational institution to give the parties an opportunity to review the evidence before the live hearing. However, it would be at the institution’s discretion whether to provide that opportunity to respond before, during, or both before and during the live hearing.
7. Different Decisionmaking Directives
Perhaps the most significant changes between the current and proposed rules relate to decisionmaking. To start with, the proposed rules would allow educational institutions to use the “single investigator/decisionmaker” model again in many cases. The current Title IX rules require the decisionmaker to be someone other than the investigator and Title IX Coordinator. The proposed rules would jettison that requirement, allowing the decisionmaker to be Title IX Coordinator, the investigator, or all three roles.
Another big change relates to hearings. The current rules require higher education institutions to have a hearing with live cross-examination by parties’ advisors for allegations of sexual harassment. The proposed rules would allow colleges and universities to decide whether to offer a hearing unless the law in their jurisdiction requires one. A college, community college, or university that does not provide a live hearing must require its decisionmaker to question the parties in one-on-one meetings instead of having live cross-examination at a hearing.
Moreover, even if a higher education institution offers a hearing, it is not required to allow live cross-examination by advisors. Instead, institutions can have the decisionmaker question the parties and witnesses at the hearing. And because hearings and live-cross examinations by advisors are not required, higher education institutions would no longer be required to provide an advisor to every party, as mandated by the current rules. Only if a higher education institution chose to provide a hearing and allow cross-examination by advisors would it be required to provide a no-cost advisor to any party that does not have one.
The requirements for what must be in the written decision in the decisionmaking process would also be loosened significantly for most cases under the proposed rules. In K-12 and non-harassment higher education cases, the proposed regulations would require the recipient only to notify the parties of the complaint’s outcome, including whether sex discrimination occurred under Title IX and the procedures and permissible bases for the complainant and respondent to appeal. That’s a far cry from the current “written determination on the merits,” which prescribes precise information that must be included in an incredibly lengthy document. Not all decisionmakers will be completely off the hook, however; the proposed rule would continue to require a written determination for higher education cases alleging sex-based harassment complaints with many of the same elements required by the current rules.
Finally, whereas the 2020 Title IX rules require appeals to be offered for several reasons, the proposed rules require appeals only for dismissals in K-12 and higher education non-sex-based harassment cases, and with no guidance for the bases for appeals. For sex-based harassment in postsecondary situations, appeals are required for dismissals and determinations that sex-discrimination occurred, but not for a determination that sex-discrimination did not occur. Like the current rules, the decisionmaker in any appeal must continue to be different from the initial decisionmaker.
8. Training, Training, Training
Right now, the Title IX rules require significant training, albeit limited to the “Title IX Team.” That team includes Title IX Coordinators, investigators, decisionmakers, and informal resolution facilitators.
The new rules would expand the training requirements. In addition to the training requirements for the “Title IX Team”—which look somewhat similar to those in the current rules, with only a few additions—the proposed rules would require training for all employees on their obligation to address sex discrimination in education programs or activities; the scope of conduct that constitutes sex discrimination, including the definition of sex-based harassment; their responsibilities when notified of a student’s pregnancy or related conditions; and their responsibilities to end any sex discrimination (reporting, responding, and grievance procedures)
Furthermore, the proposed rules would require that Title IX Coordinators and their designees be trained on their specific responsibilities under the regulations, recordkeeping requirements, and any other training necessary to coordinate compliance with T9; their responsibilities to prevent discrimination and ensure equal access for students who are pregnant or have related conditions; the Title IX Coordinator requirements under grievance procedures; and supportive measures.
The proposed training requirements would give Title IX administrators a strong justification for training opportunities for employees and Title IX Team members that we in the field know are good practices for schools, colleges, and universities. A solid training program can be your best friend if a complaint is raised with the courts or OCR about how the educational institution handled a situation. However, the proposed rules would be the first time such sweeping training requirements would be required by law.
9. Application to LGBTQI+ Discrimination
As might be expected after many steps by the Biden administration to defend the rights of LGBTQI+ individuals (including an executive order addressing education days before the release of the proposed Title IX rules), the proposed rules would be the first time the Title IX law would explicitly extend to discrimination based on sexual orientation and gender identity. That interpretation of Title IX would align with the U.S. Supreme Court’s landmark decision in Bostock v. Clayton County, Georgia. Bostock held that Title IX’s sister law, Title VII of the Civil Rights Act of 1964, prohibits discrimination because of sexual orientation or gender identity.
Although the symbolism of the codification cannot be overstated, the actual legal change for OCR complaints would be minimal even if the proposed rules become effective as written. Even the Trump administration begrudgingly acknowledged in August 2020 that:
[W]ith respect to complaints that a school’s action or policy excludes a person from participation in, denies a person the benefits of, or subjects a person to discrimination under an education program or activity, on the basis of sex, the Bostock opinion guides OCR’s understanding that discriminating against a person based on their homosexuality or identification as transgender generally involves discrimination on the basis of their biological sex.”
In that case, the Trump OCR opened a complaint for investigation in which a student alleged they were treated differently based on sexual orientation.
The same day, however, the Trump administration made clear it believed that Title IX does not require equal treatment in all circumstances based on gender identity. Specifically, the letter said that Bostock does not answer the question of whether transgender students can access “sex-segregated” sports teams based on gender identity. The Trump administration doubled down on that position right before leaving office in a January 2021 memorandum on the topic.
The Biden administration has said unofficially many times that it believes Title IX requires equal access for transgender students, including to sports teams. But its failure to take this opportunity to settle the question in law through the proposed regulations leaves schools in limbo about what the law requires. Instead of putting this argument to rest, the Department said in the Twitter announcement about the proposed rules that it will “engage in separate rulemaking in the future to address #TitleIX’s application to athletics.” Who knows how long that will take.
These are a few of the many, many changes to the Title IX regulations from the 2022 Title IX proposed rules. The comment period for the rules will be open for 60 days after the proposed rules are published in the Federal Register, which has still not happened yet. Now is your chance to make your voices heard regarding what the law should require. Once the law is on the books, OCR will no longer be listening. Thompson & Horton is working with different constituencies to prepare written comments for submission to the Department of Education regarding the proposed rules. Stakeholders include K-12 schools generally, special education interests in K-12, community colleges, colleges and universities, and charter schools. If you are interested in engaging in conversations about the rules or joining a consortium, contact us at TitleIX@thlaw.com.