The Department of Education has proposed to amend regulations implementing Title IX of the Education Amendments of 1972 (which prohibits discrimination based on sex in educational programs and activities that receive federal funding).  The effect of the amendments would be to roll-back certain Obama-era policies established by Federal Guidelines issued in 2011 and 2014 to address incidents and allegations of sexual harassment and assault on and in school campuses and communities. In order to be considered, comments on the proposed regulations must be received by the Department of Education (“ED”) by no later than February 15, 2019.

Basics and Bullets:
  • Title IX prohibits discrimination on the basis of sex in education programs and activities that receive federal financial assistance.
  • Current Title IX regulations were issued before the federal courts recognized sexual harassment as a form of discrimination on the basis of sex.
  • During the last 25 years, sexual harassment (including sexual assault) in the context of Title IX has been addressed through federal Guidance documents, instead of through regulatory amendments.
  • The most recent guidance from the Department of Education consisted of a 2011 “Dear Colleague Letter” to school administrators and two Question and Answer documents issued in 2011 and 2014 on the topics of Sexual Violence and Sexual Misconduct.
  • The Trump Administration Department of Education withdrew these pre-existing Guidance documents in September of 2017.
  • Compared with the 2011 and 2014 federal policy Guidance, the newly proposed regulatory amendments would redefine and narrow the scope of conduct constituting “sexual harassment” for Title IX purposes.
  • The amendments would heighten the standard of proof in school-based proceedings about alleged sexual assault, harassment, or misconduct, making it more difficult for complainants to prove their cases and gain relief, and easier for those accused of violations to avoid discipline.
  • The amendments would also diminish the range of circumstances in which schools can be held legally responsible for failing to address incidents of sexual harassment or assault.
Summary of the Proposed Regulatory Amendments:

As described by the Department of Education (“ED”), the proposed regulations would (with regard to educational institutions that are recipients of federal funds) (1) define the conduct constituting sexual harassment for Title IX purposes; (2) specify conditions that activate a recipient’s obligation to respond to allegations of sexual harassment and impose a general standard for the sufficiency of a recipient’s response; (3) specify situations that require a recipient to initiate its grievance procedures; and (4) establish procedural safeguards that must be incorporated into a recipient’s grievance procedures in connection with the recipient’s investigations and adjudications of sexual harassment and assault complaints. According to ED the proposed regulations would, in addition, clarify that in responding to any claim of sex discrimination under Title IX, recipients are not required to deprive an individual of rights that would be otherwise guaranteed under the U.S. Constitution; prohibit the Department’s Office for Civil Rights (OCR) from requiring a recipient school to pay money damages as a remedy for a violation of any Title IX regulation; and eliminate the requirement that religious institutions submit a written statement to qualify for the Title IX religious exemption.

Some of the more controversial, specific changes from previous federal rules and policy guidance would be as follows : (1) Instead of defining sexual harassment as “unwelcome conduct of a sexual nature” (as ED previously did for Title IX purposes), sexual harassment would instead be more narrowly defined as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”  (2) Instead of directing schools to discipline students accused of sexual misconduct if evidence shows that the misconduct was more likely than not to have occurred (in other words, applying a preponderance of the evidence standard to disciplinary decisions), the new regulations would allow schools to choose to apply the much higher bar of a “clear and convincing evidence” standard such as applies in criminal cases in the courts. (3)  Instead of requiring a school (in order to avoid potential liability under Title IX) to investigate allegations when the school “knows or reasonably should know”  of  an alleged sexual assault, the proposed regulations would provide for finding a school liable for a Title IX violation only where the victimized student reports the assault to a school official “with authority to institute corrective measures.” (4) Schools would be required, throughout the disciplinary process, to accord accused students a presumption that they are innocent and a right to be given all evidence collected against them; and the accused would be able to cross-examine their accusers through a lawyer or representative. (5) A school’s responsibilities under Title IX to investigate or respond to allegations and incidents of sexual harassment or assault would not extend to occurrences outside the physical bounds of the school’s campus or grounds (including where a majority of a College or University’s students may live in off-campus housing).

Additionally, the new regulations would allow schools to invoke a religious exemption from certain Title IX requirements (such as admission of certain categories of students, for example LGBT students, or provision of counseling services), without submitting a formal written request for specific exemptions, as had previously been required.  The rules prohibit schools from treating allegations of sexual harassment or assault with indifference; but provide schools with a variety of procedural steps that, if followed, constitute “safe harbors” from liability for a Title IX violation and insulate schools from being deemed to have acted with indifference in response to an alleged incident.

The Agency’s Justification for Proposing New Rules:

ED states a number of rationales in support of the proposed new regulations.  The Agency states that the new rules will provide needed clarity and “transparency” with respect to what is expected of Title IX recipients and what rights and protections can be expected by their students.  It also contends that the new rules, in comparison with the federal policy regime represented by Obama-era Guidance documents the new rules are intended to replace, will promote greater fairness in the handling of sexual harassment and assault complaints, by affording more even-handed treatment of complainants and those accused of misconduct in school grievance and disciplinary proceedings and “applying mandatory procedural checks and balances, thus producing more reliable factual outcomes.”

The Agency asserts that the new regulations will “better align the Department’s regulations with the text and purpose of Title IX and Supreme Court precedent and other case law,” and that this “will help to ensure that recipients understand their legal obligations including what conduct is actionable as sexual harassment under Title IX, the conditions that activate a mandatory response by the recipient, and particular requirements that such a response must meet so that recipients protect the rights of their students to access education free from sex discrimination.”  ED claims that  “the transparency of the proposed regulations will help empower students to hold their schools accountable for failure to meet [the schools’] obligations,” and that “complainants reporting sexual harassment will have greater control over the process.”   While critics of the new rules believe they are likely to have the directly opposite effect, ED contends that the proposed regulations would encourage more students to “turn to their schools for support in the wake of sexual harassment.”  ED also estimates that there would be total monetary cost savings over ten years in the range of $286.4 million to $367.7 million under the new rules.

Additional Information and Resources:

On the whole, the new rules seem more  protective than previous federal policy of the interests and rights of schools and of persons accused of misconduct; and are arguably less protective of victims of sexual harassment or assault.  For that reason, the proposed rules have been roundly condemned by advocates for victims of sexual misconduct, but applauded by those whose concerns focus more on possible unfairness to individuals accused of perpetrating harassment or assault on others, and who regarded the Obama-era policies to be skewed too far in support of complainants and victims.  The provisions of the new rules — many of which can credibly be understood as designed to give schools better clarity in regard to what Title IX demands of them, rather than necessarily to realign the balance of protections for sexual assault and harassment victims in comparison with other involved parties — are too numerous to fully summarize here. You may wish, therefore, to gain a more comprehensive understanding of the proposed rules by reading the full Notice of Proposed Rulemaking, and comparing what has been proposed with the “Dear Colleague Letter” on Sexual Violence  issued April 4, 2011 by the Obama Administration ED Office of Civil Rights (and withdrawn by the Trump Administration ED on September 22, 2017), as well as Questions and Answers on Title IX and Sexual Violence issued April 29, 2014 (and withdrawn September 22, 2017). ED has also published a one-page Fact Sheet to summarize the new regulatory proposals, as well as a more detailed Background and Summary document that includes the Government’s Section-by-Section description of the proposed new rules. A Press Release issued by ED in advance of formal publication of the proposed rules also provides a brief summary of their contents, along with the positive perspective on the rules advanced by ED Secretary Betsy DeVos.

Articles presenting a more balanced — or in some instances more critical — perspective on the proposed regulations can be found on various websites. Both the Washington Post and NBC published articles highlighting some of the controversial aspects of the proposed rules. Two additional resources that explain the prospective regulatory changes without seeming to “take sides” on the inherent controversies are The Chronicle of Higher Education and the Association of Governing Boards of Universities and Colleges. Other publications and organizations that have presented views and perspectives more critical of the proposed rules and their likely consequences include Vox and the Center for American Progress, as well as Think Progress.

If you are ready to comment on the Department of Education’s proposed new regulations, you can go to the Comment Page for this topic on the Government’s eRulemaking website, type your comments into the box provided for that purpose, and follow the other instructions for submission.  The Agency prefers comments to be submitted electronically; but if you wish instead to send your comments in hard-copy letter form, mail or hand-delivery submissions should be addressed to Brittany Bull, U.S. Department of Education, 400 Maryland Avenue SW, Room 6E310, Washington, DC 20202. Telephone: (202) 453-7100.  The Docket ID Number ED-2018-OCR-0064-0001 should appear at the beginning of any comment submission, however transmitted. In order to be considered, comments must be received by ED on or before February 15, 2019.