On June 23, 2022, fifty years to the day after President Nixon signed Title IX of the Education Amendments of 1972, Dr. Miguel Cardona, President Biden’s Secretary of Education, announced the much-anticipated 2022 Title IX Regulations, the fulfillment of Biden’s March 8, 2020 Executive Order guaranteeing an educational environment free from sex discrimination for all students.
Well, the Preamble to the Final Rule says “no;” the 2020 Title IX Regulations are not retroactive for sexual harassment that occurred before the August 14, 2020 effective date of those Regulations.
The Third Circuit acknowledged that OCR guidance documents are not the applicable standard in 2022. They are superseded by the 2020 Title IX Regulations. However, the 2020 Regulations also require that for Title IX liability to attach to the institution, the institution must have substantial control over the context in which the sexual harassment occurs and substantial control over the alleged harasser, identified in the 2020 Regulations as the “respondent.”
These new rules, ACLU contends, will make it easier for colleges and universities to ignore allegations of sexual harassment and assault. The new rules to which ACLU specifically objects start with the definition of sexual harassment to which an institution must respond.
Contrary to the former Dear Colleague Letters issued by OCR, which were considered by the Office for Management and Budget to be “significant guidance,” the new rules will carry the force of law.
Dubbed the “pre-assault” claim, successful pleading would hold colleges and universities liable under Title IX for policies and practices that encourage or make more likely sexual assaults of female students on their campuses.
The Title IX claim had been brought by a woman who alleged she was raped by three Gettysburg students at an alcohol-fueled party.
In what the U.S. Government Accountability Office characterizes in its Report to Congress as a “soft-power” initiative, China has financially supported Confucius Institutes in colleges and universities in 44 states, as well as in K-12 school districts.
A growing number of court decisions in various jurisdictions that are refusing to recognize causes of action under Title IX brought by individuals sexually assaulted at colleges and universities.
Sexual assault is considered to be discrimination on the basis of sex, and individuals who experience sexual assault may bring a Title IX claim against the educational institution if the institution is deliberately indifferent to the assault.