Top Five Things Superintendents Should Know About the Proposed Title IX Rules
By Jackie Gharapour Wernz, Partner, Thompson &
Horton LLP*
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 take effect, they likely will include some
changes from the proposed version.
However,
because the final rules likely will be similar to those proposed, it makes
sense to familiarize yourself with the proposed rules 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 in a side-by-side
format.
1. Required Grievance Procedures
for All Complaints of “Sex Discrimination”
The proposed
rules require a somewhat less prescriptive set of grievance procedures than the
current rules. But the procedures would be much more broadly applicable. Specifically, the current rules require the
grievance process to be used only for “sexual harassment” complaints. The
proposed rules, however, would require schools to use the grievance procedures
outlined in the rules for any complaint of sex discrimination.
That includes sexual harassment, but also things like:
- Sex-based harassment
- Different treatment
and different impact based on sex (such as in single-sex programs or
discipline)
- Failures to
accommodate based on sex (including based on pregnancy and LGBTQIA status), and
- Retaliation.
2. On
the Hook for Off-Campus Conduct?
Another
broadening would occur under the new regulations regarding alleged sex-based
discrimination that occurs outside of the United States or off-campus
and outside the educational program or activity. The new rules would make
clear that they would applyif such conduct contributes to an
alleged hostile environment back home in the school’s educational program or
activity. It is unclear whether this new language will require a school to
actually investigate the behavior that occurred outside the U.S. or off-campus.
But many are suggesting that is the direction the Department of Education may
be headed. Such an interpretation would be a significant change for schools,
which currently defer to law enforcement for off-campus sexual misconduct in most
cases. This is an area where schools should work to make their voices heard
during the comment process.
3. Goodbye
“SPOO,” Hello “SORP”
Under the current
Title IX regulations, if conduct is not part of the Title IX Big Five (employee
quid pro quo, sexual assault, domestic violence, dating violence, and
stalking), it can only be “sexual harassment” that must be addressed using the
Title IX grievance process 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,” and the Title IX “hostile environment” standard is sometimes
shortened to “SPOO” for “severe, pervasive, and objectively offensive.” Other
“lower level” types of sexual harassment that is not “SPOO” can be addressed using
another process, such as a school’s code of conduct for student
discipline.
The proposed
rules would apply the Title IX process to almost all of those “low level” types
of sexual misconduct, sweeping many more complaints under the Title IX
grievance process. Conduct would create a “hostile environment” subject to the
Title IX rules 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.”
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. In total, the first three
changes identified here—and other “broadening” changes in the proposed
rules—would mean that many more incidents of misconduct would fall under the
Title IX process than under the current rules.
4. Procedural
Changes
With the
broadening of the complaints that will fall under the Title IX rules, superintendents
should be understandably worried about applying the incredibly complicated
process from the 2020 Title IX rules to all these 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 much less
prescriptive than those in the current rules, especially for K-12 schools. Here
are some key takeaways from the K-12 process in the proposed rules:
- Fewer
Time-Consuming Reviews in the Investigation. 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. Parties must be allowed to review and respond to the
“directly related evidence” before the investigation report is finalized and
then to the investigation report before any decision is made. Under the
proposed rules, those steps would be gone for K-12 complaints. All that would
be required would be to “provide each party with a description of
relevant/permissible evidence with a reasonable opportunity to respond.”
- The Single
Investigator/Decisionmaker Model is Back. There are also significant
proposed changes to decision-making. The proposed rules would allow educational
institutions to use the “single investigator/decisionmaker” model for Title IX
cases. That means the proposed rules would jettison the current rules’
requirement that the decisionmaker be someone other than the investigator and
Title IX Coordinator. Indeed, under the proposed rules, the decisionmaker can
be Title IX Coordinator, the investigator, or all three roles.
- Less is More for
the Written Determination. The requirements for what must be in the written
determinationin the Title IX decision-making process would also be
loosened significantly for most cases under the proposed rules. In K-12 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.
- Barely Any Appeals.
Finally, whereas the 2020 Title IX rules require appeals to be offered for
several reasons, the proposed rules require appeals only for dismissals for K-12,
and do not identify any required bases for K-12 appeals. However, the
decisionmaker in the appeal must continue to be different from the initial
decisionmaker.
5. Application
to LGBTQI+ Discrimination
The proposed
rules would be the first time Title IX would explicitly extend to
discrimination based on sexual orientation and gender identity, aligning Title
IX 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.
While the Biden
administration has said unofficially many times that it believes Title IX requires equal access
for transgender students, including to sports teams, it will not weigh in
officially on the question under these proposed rules. Instead, it will engage
in separate rulemaking in the future to address #TitleIX’s application to
athletics as early as this fall.
These are a
few of the many, many changes to the Title IX regulations from the 2022 Title
IX proposed rules. Superintendents should use this opportunity to weigh in on
the rules before they become law; OCR will no longer be listening once the
rules are finalized. 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.
*Also authored by Emmy Edwards,
a first-year law student at Southern Methodist University, currently a legal
intern at Thompson & Horton LLP. You can reach the authors of this post at jwernz@thlaw.com.