The U.S. Department of Education released a new proposed Title IX rule for public comment on the 50th anniversary of Title IX. This proposed rule has been highly anticipated, and as expected, reverses some of the changes made in 2020.
The proposed rule broadens the scope and application of the Title IX regulations. It states the scope of Title IX is “[d]iscrimination on the basis of sex. . .” Sex-based discrimination under the proposed rule expressly includes discrimination based on gender identity, sexual orientation, sex characteristics, sex stereotypes, and pregnancy or related conditions. Likewise, the proposed rule includes discrimination on those bases within the definition of “sex-based harassment.” The proposed rule places unwelcome conduct harassment under a hostile environment framework. The definition of “hostile environment” requires the unwelcome conduct to be “sufficiently severe or pervasive” to either deny or limit the person’s ability to participate in or benefit from the education program or activity. The proposed rule further expands the application of Title IX by placing an obligation on schools to address a sex-based hostile environment under the school’s education program or activity even if the harassment occurred outside the education program or activity or outside the U.S.
The proposed regulations also expand the school’s ability to use an informal resolution process to include situations where a formal complaint has not been filed.
The proposed regulations would make a number of changes to Title IX grievance procedures, removing a number of the protections respondents received under the 2020 revisions. The proposed rule includes specific requirements for complaints of sex-based harassment involving either student complainants or student respondents at postsecondary institutions. Instead of providing both parties with copies of the evidence with time to review as required under the current regulations, a postsecondary institution could instead provide the parties either access to relevant evidence not otherwise impermissible or an investigative report summarizing that evidence. If it provides an investigative report, it must also provide the parties equitable access to the relevant and not otherwise impermissible evidence on request. Under the proposed rule, schools would not be required to hold a live hearing to evaluate the evidence following a Title IX investigation, as is currently required. Schools may instead use a single investigator model. Schools would be required have a process for the decision maker to ask live questions of the parties and witnesses to assess their credibility, but this process does not have to allow cross-examination by the parties.
Schools may only use a clear and convincing evidence standard in Title IX proceedings if they use that standard in all other comparable proceedings. Otherwise, schools must use the preponderance of the evidence standard.
These and other changes in the proposed regulations would expand the scope and application of Title IX while eroding some of the due process rights afforded to respondents under the 2020 Final Rule. These changes are not final, however. Once the proposed regulations are published, there will be a sixty day comment period. The Department of Education will then likely take some time to review the comments before publishing a final rule.
Given the ongoing uncertainty in Title IX procedural requirements, it is important for a student accused of a Title IX violation seek the counsel of an experienced Washington Title IX attorney as soon as possible after learning of the allegations. Call Blair & Kim, PLLC, at (206) 622-6562 to set up a consultation. We have the knowledge and experience to guide you through the Title IX process and any related criminal case.