Department of Education Issues Proposed Title IX Regulations and Seeks Public Comment

On June 23, 2022, the Department of Education’s Office for Civil Rights (OCR) released long-awaited proposed changes to Title IX regulations issued under the Trump Administration.¹ Before the proposed revisions are enacted into law, the OCR will consider feedback submitted during the 60-day public comment period, which ends on August 22, 2022.

As forecasted last year, the Biden Administration’s changes would reverse many of the previous administration’s rules and restore a more survivor-centered approach that was championed in the Obama Administration’s 2011 Dear Colleague letter. Most notably, the proposed regulations would rescind the requirement to provide a live hearing and cross examination in Title IX proceedings. Instead, the proposed regulations would restore the discretion previously afforded to schools to decide whether to utilize an investigation or live hearing model to respond to allegations of sex-based harassment.

Other changes under the proposed regulations include the following:

• Prohibition on All Forms of Sex Discrimination. The proposed regulations would expand Title IX’s coverage to protect against a broader set of conduct. The current regulations protect against sexual harassment but do not address other forms of sex-based harassment. The proposed regulations would define 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. Effectively, this means that in addition to protecting against sexual harassment, Title IX’s regulations would extend protections to LGBTQ+ individuals.
• Expanded Definition of Harassment. The proposed regulations would also expand the definition of harassment. The current regulations only apply to conduct that is “so severe, pervasive, and objectively offensive” that it effectively denies a student equal access to the educational institution’s programs or activities. By contrast, the proposed regulations would cover unwelcome sex-based conduct that is sufficiently “severe or pervasive” to create a hostile environment that denies or limits an individual’s ability to participate in or benefit from the school’s programs or activities.
• Expanded Coverage of Off-Campus Conduct. The proposed regulations would also expand the off-campus reach of Title IX. Specifically, the proposed regulations would require colleges and universities to address sex-based harassment that occurs outside the institution’s programs or activities (e.g., at an off-campus house) or outside the United States (e.g., in a study abroad program) if the harassment later contributes to a sex-based hostile environment within a school’s education programs or activities.
• Greater Latitude to Pursue Informal Resolutions. Under the proposed regulations, schools would be afforded more leeway in terms of initiating informal resolutions. The current regulations do not allow colleges and universities to pursue such measures unless a formal complaint is filed. The proposed regulations, however, do away with the formal complaint requirement and permit schools to offer informal resolution whenever they receive a complaint of sex discrimination or have information about conduct that may constitute sex discrimination under Title IX, except that informal resolution is still not permitted in situations in which an employee is accused of sex discrimination against a student.

While this client alert highlights some of the key provisions of the proposed regulations, the proposed regulations also include nuanced and technical requirements that call for close attention to ensure compliance if they are ultimately enacted into law.

In a fact sheet released alongside the proposed regulations, the Department of Education (the “Department”) notes that the proposed regulations “would keep as much of the current regulations as possible to ensure consistency for schools” while at the same time updating procedures and filling in gaps. The 700-page proposal includes a detailed discussion of which provisions the proposed regulations would and would not change. Notably, for now at least, the Department has “tentatively” decided not to change the regulations’ application in the employment context. In other words, the proposed regulations would generally apply the same grievance procedure requirements to matters involving students as those involving employees only. The Department has, however, expressly requested comment “on whether and how any of the proposed grievance procedures (or any proposed additions from commenters) should apply differently to various subgroups of complainants or respondents, such as students or employees, or students at varying educational levels.”

The Department also requested comment on (1) the interaction between Title IX and the Family Educational Rights and Privacy Act (“FERPA”); (2) whether there are additional requirements that should be included in, or removed from, the regulations pertaining to an institution’s obligation to provide an educational environment free from sex discrimination; (3) experiences with the single investigator model and steps to ensure adequate, reliable, and impartial investigation and resolution of complaints under the model; and (4) standard of proof issues, including whether it is appropriate to permit a different standard of proof in employee-on-employee discrimination cases. The full recitation of the Department’s directed questions is available starting at page 565 of the 700-page proposal.

¹ The Department of Education plans to address the issue of how Title IX applies to sports in a separate, forthcoming rulemaking.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Apalla U. Chopra, an O’Melveny partner licensed to practice law in California, Anton Metlitsky, an O’Melveny partner licensed to practice law in the District of Columbia and New York, Patrick D. McKegney, an O’Melveny counsel licensed to practice law in New York, Marni Barta Robinow, an O’Melveny counsel licensed to practice law in California, Anna M. Rotrosen, an O’Melveny associate licensed to practice law in California, and David Cohen, an O’Melveny associate licensed to practice law in New York, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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