Biden's Notice of Proposed Rule Making
As anticipated, on June 23, 2022, the 50th anniversary of Title IX’s enactment into law, the Biden Administration’s Department of Education released a Notice of Proposed Rule Making (NPRM) in an effort to modify existing Title IX regulations.
What does this mean? In the immediate, nothing has changed. The same obligations for Institutions, Investigators, and Hearing Officers remain in place. Until a Final Rule is issued, we need to all keep doing what we have been doing since the current regulations took effect on August 12, 2020.
What happens next? The release of the NPRM is just the beginning of the process to adopt new Title IX regulations. Now that the proposed rule has been published in the Federal Register, there will be a 60-day public comment period. The Department will then be required to address each comment before publishing a Final Rule, which would be enforceable as federal law. This can be a lengthy process. For reference, it took the Trump Administration’s Department of Education over a year and a half to release a Final Rule after releasing the NPRM (November 15, 2018 – August 12, 2020).
If approved in its current form, what would the new rule change? Here are the big take-aways*:
Discrimination based on sex would extend to sexual orientation and gender identity
The regulations would provide a framework for all sex-based discrimination, with additional provisions for sex-based harassment
Live hearings and advisor-conducted cross-examination would be optional, rather than mandated (though a live-questioning process to assess credibility would still be required)
Institutions could address sexual misconduct that occurred off campus and/or outside of the United States
The definition of “sex-based harassment” would expand to include significantly more conduct
Institutions could investigate and respond to sexual misconduct without a formal complaint
Complainants would have to be participating or attempting to participate in the institution’s educational programs or activities at the time the conduct occurred, rather than at the time of reporting
Over Title IX’s 50 years of existence, the Federal Government’s response has varied from no direction, to informal direction, to rigid formal direction. The ever-changing guidance and regulations have been difficult for recipients of federal funding (which encompasses most educational institutions) to keep up with. Hopefully the new regulations will bring us closer to an equitable process for handling sex-based discrimination and provide long-standing guidance to institutions.
*Note: This provides only a small glimpse of the changes the NPRM put forth – if you missed our July webinar on the proposed changes, we plan to cover them again at the January 2023 Essentials training. For more information, please visit T9 Mastered.
