DOE Releases New Title IX Regulations | KingSpry

Department of Education Releases New Title IX Regulations  

Posted on June 30th, 2022
by Dr. Kathleen Conn

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. 

The goal of the 2022 Regulations is to enable all schools to meet their obligations to comply fully with Title IX while providing all recipients of federal funding, K-12 through higher education, appropriate discretion and flexibility to account for their variations in sizes, populations, and administrative structures.

The new definition of Title IX now abandons the “severe, pervasive, and objectively offensive” qualification of unwelcome sexual conduct, and reverts more closely to the “unwelcome conduct” and “hostile environment” language in former OCR guidance. 

The exact language now is “unwelcome sex-based conduct 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 recipient’s education program or activity (i.e., creates a hostile environment).” Thereby, the 2022 Regulations expand the reach of Title IX sanctions to out-of-school sexual harassment, including that which occurs outside the United States. 

The new Regulations also note that they cover not only sex-based harassment, but also harassment based on “sexual stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity,” thereby strengthening protection for LGBTQI+ individuals.

“Quid pro quo,” or “this for that,” sexual harassment remains in the definition, as do sexual assault, dating violence, domestic violence, and stalking. As to pregnancy, the Regulations require reasonable modifications for students and break time for employees, as well as lactation spaces. In addition, the concept of “parent” is extended to adoptive or step-parents, or legal guardians.

With respect to the requirement in the 2020 Regulations that school must respond when it receives “actual knowledge” of possible sexual harassment, and this knowledge is provided when received by “any employee” in K-12 schools, and in postsecondary institutions must be communicated to an official with authority to correct the sexual harassment or to the Title IX Coordinator, the new regulations now would simply require the educational institution to respond promptly and effectively to end any prohibited sex discrimination that has occurred, prevent its recurrence, and remedy its effects. The concept of “actual knowledge” would seem to be abandoned.

With respect to the standard of evidence to be used in deliberations of responsibility for sex-based discrimination, the institution must use the preponderance of evidence standard unless the institution uses the clear and convincing standard of evidence in resolving other serious allegations of misconduct.

Informal resolution must also now be voluntary on the part of both parties to the alleged sexual harassment, but now does not require the prerequisite of issuance of a “formal complaint.”

Also, informal resolution is still prohibited in the case of employee-on-student sexual harassment.

The presumption of innocence of the respondent until the grievance is resolved remains in the 2022 Regulations, and live hearings are optional now for all K-12 and postsecondary institutions. 

The duties of the Title IX Coordinator in responding to a complaint of sexual harassment remain essentially the same as in the 2020 Regulations, but a one-person investigator model can now be employed, without an independent decisionmaker, depending on the known circumstances and resources of the institution. This one-person investigator/decisionmaker can be the Title IX Coordinator or a designee.

Bottom Line for Schools 

These are arguably the most significant changes in the 2022 Title IX Regulations. DOE has also noted that it plans to issue a separate notice of proposed rule-making (NPRM) addressing whether and how the Department should amend the Title IX Regulations to address participation of transgender students in athletics. The new Regulations briefly described above will be published in the Federal Register as a NPRM and will be open for public comment for sixty days. The 701 pages of the unofficial version can be found by clicking here.

If your school recently received Title IX training, be prepared for some “touch up” training on the new regulations when they become final, likely some time near the end of 2022.

If you have any questions, please consult with your legal counsel or one of the education attorneys at KingSpry.