This article is a client alert published by Holland & Knight on June 24, 2022.

The Biden Administration’s Department of Education issued a new Notice of Proposed Rulemaking (NPRM) on June 23, 2022 – the 50th anniversary of the day Title IX was signed into law – intended to overhaul the Trump Administration’s May 2020 Title IX regulations. A Department-prepared Fact Sheet and Chart summarize the proposed regulations.

As explained in a related press release, the Department’s comprehensive review of the May 2020 Title IX regulations began in March 2021, as directed by an executive order from President Joe Biden. The Department sought public input from stakeholders and convened a nationwide virtual public hearing in June 2021, the results of which are mentioned often in the preamble to the notice of proposed rulemaking (NPRM). Once the NPRM is published officially in the Federal Register in a few weeks, the public will have 60 days to submit comments to the Department regarding the proposed regulations. The Department will then have to summarize and respond to the comments received and issue the resulting final regulations, which will include an effective date. More than 125,000 comments were submitted regarding the May 2020 regulations, and it took the Department more than 15 months to respond to those comments and finalize the regulations. If that experience is any guide, it is fair to assume that it will be many months before the Title IX regulations become effective. Until they are, the May 2020 regulations will remain in effect.

Colleges and universities should have a basic understanding of the NPRM, because while it is possible that relatively minor details could be changed in response to public comments, experience shows that the major themes of an NPRM are likely to be carried through to final regulations. This alert summarizes, in broad strokes, some of the more noteworthy changes that would be made by the proposed regulations.

Scope and Definition Changes

The May 2020 regulations narrowed the definition of “hostile environment sexual harassment” and required schools to focus their Title IX procedures on on-campus or program-related conduct that fit within that definition. The proposed regulations in the NPRM, however, roll back that narrowing and essentially restore the definition to that used during the Obama Administration, which is more likely to require investigations of a broader category of unwelcome conduct of a sexual nature.

Not surprisingly, given recent guidance from the Biden Administration’s Department of Education, the proposed regulations also make clear that sex-based discrimination covered by Title IX includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity. For the most part, these protections are already provided in essence by a combination of case law and other statutes, though the proposed regulations’ explicit definition of discrimination on the basis of gender identity as including “different treatment or separation on the basis of sex in a way that would cause more than de minimis harm, including by adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity” will likely require some reflection and adaptation by colleges and universities (this is a complex topic beyond the scope of this alert).

The proposed regulations also emphasize, in contrast to the on-campus/program-related focus of the May 2020 regulations, that Title IX obligates a school “to respond to sex discrimination within the [school’s] education program or activity in the United States, even if it occurs off-campus,” and, significantly, to “respond to a hostile environment based on sex within its education program or activity in the United States, even if sex-based conduct contributing to the hostile environment occurred outside the recipient’s education program or activity or outside the United States.” This “colleges must address the on-campus effects of off-campus harassment” concept is similar to guidance included in the 2011 Dear Colleague Letter.

These changes would address some of the most commonly heard objections to the May 2020 regulations.

Changes to Employee Notification Requirements

The May 2020 regulations scrapped the “responsible employees must report sexual harassment” standard that the Department had used for many years and replaced it with an easier-to-administer approach that only requires colleges to initiate an investigation based on a signed, formal written complaint provided to a narrow group of college officials. The proposed regulations lean back toward a more precise, but ultimately broader, version of the previous standard, in that they require certain employees to notify the Title IX coordinator when they have information about conduct that may constitute sex discrimination, and would require other employees who have information about such conduct to either 1) notify the Title IX coordinator or 2) provide any person who gives them information about such conduct with the contact information for the Title IX coordinator and information about how to report sex discrimination.

This change will require all colleges and universities to do some training for employees so that they understand their notification obligations, but the training requirements will be relatively minor for those schools that continued, as a risk management matter, to follow broad “responsible employee” policies notwithstanding the May 2020 regulations. Relatively more training will be required at schools that narrowed reporting obligations based on the current regulations.

Procedural Changes

The proposed regulations would make dramatic changes to how institutions address reports of sex-based discrimination. The proposed regulations would set up a system whereby all complaints of sex-based discrimination must be addressed through procedures that include certain elements (historically and currently, general sex-based discrimination procedures that do not involve sexual harassment are only required to be “prompt and equitable”), and whereby sex-based harassment cases at postsecondary institutions that involve a student complainant or student respondent would include certain additional elements.

In contrast to the May 2020 regulations, the proposed sex-based harassment for college student regulations would, for example:

1. allow complaints to be based on both oral and written complaints
2. allow schools to separate respondents from the institution to the extent necessary to “protect the safety of the complainant or the [school’s] environment”
3. not require complaints to be “dismissed for Title IX purposes,” thereby eliminating a provision of the May 2020 regulations that caused many schools to adopt relatively cumbersome dual-track procedures to address forms of sexual misconduct both within and outside the narrow definition of sexual harassment stated in the current regulations
4. allow schools to provide the parties with either access to the evidence gathered in an investigation or a written investigation report (with evidence provided upon request), but would not require them to provide both
5. allow, but not require, live hearings, which could be replaced by a process that involves live questioning of parties and witnesses at individual meetings with an investigator or investigators
6. allow investigators to make decisions regarding responsibility (that is, a “single investigator” model would again be permitted)
7. replace the previously invalidated exclusionary rule with a rule providing that if a party does not respond to questions related to their credibility, the decision-maker must not rely on any statement of that party that supports that party’s position (but could rely upon statements, such as inculpatory or exculpatory text messages, that do not support that party’s position)

These changes will, of course, require an overhaul of policies rewritten in 2020 to comply with the current regulations. While the notice and comment period is running its course, institutions should reflect on their experiences under the current regulations and start to think through how they would like to change their policies within the more flexible parameters that would be established by the proposed regulations.

Informal Resolution

In guidance issued in 1997, 2001 and 2011, the Department had stated consistently that “in cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis.” While some schools used non-mediation informal resolution processes notwithstanding this guidance, many schools read this language broadly and did not use any form of informal resolution practices in sexual assault cases. The Trump Administration’s Department rescinded this guidance in 2017 and declared that informal resolution could be used in sexual assault cases if certain safeguards were implemented, and incorporated that position into the May 2020 regulations. Fortunately, the current Department did not revert to a pre-Trump Administration position on this point, in that the proposed regulations would permit the use of informal resolution processes in sexual assault and other sex-based discrimination cases. As with the current regulations, certain safeguards must be followed. Helpfully, the proposed regulations explicitly state a safety-related caveat that was implied in the current regulations, by stating “[c]ircumstances when a recipient may decline to allow informal resolution include but are not limited to when the recipient determines that the alleged conduct would present a future risk of harm to others.”

Employee-Related Issues

While not retreating completely from the area of sex-based discrimination involving employees (an area over which the Department does, technically, have jurisdiction under Title IX), the proposed regulations back away from the substantial incursion on the college-employee relationship that was made by the May 2020 regulations. For example, the most detailed procedural requirements that apply in college student sex-based harassment cases discussed above would not apply in employee-employee sex-based discrimination or harassment cases, and schools can provide a different standard of proof in employee cases than they do in student cases (a significant development for schools that had, for example, “clear and convincing evidence” standards codified in faculty handbooks or collective bargaining agreements, but wished to use the “preponderance of the evidence” standard in student cases, which can be problematic and/or prohibited under the current regulations). These changes would permit schools, with some modifications, to re-center their workplace sexual harassment prevention and response efforts in the Title VII-based model that they had used for many years prior to the May 2020 regulations and respect long-standing faculty and staff relations practices and agreements.