On the 50th anniversary of Title IX, the U.S. Department of Education (“DOE”) released its long-awaited proposed revisions to its Title IX regulations.
The 700-page proposed regulations are largely a response to the 2020 regulations that created an onerous grievance/investigation procedure. The proposed regulations would replace the procedure required by the 2020 regulations with a general obligation to conduct a “prompt and equitable” process. The proposed regulations would also expand the informal resolution process to be available at any point during the grievance/investigation process, rather than only before the grievance/investigation process begins. Further, rather than dictating the manner in which a school shares evidence, the proposed regulations would require that all parties have an equal opportunity to present and respond to evidence from other parties.
The proposed regulations would also enhance training and policy requirements. In particular, the proposed regulations would require all employees to refer information that may constitute sex discrimination to the Title IX Coordinator or provide information about how to file a complaint to the potential complainant. If adopted, this will be an important point on which schools must train all staff on a regular basis.
In additional to proposed changes to the grievance/investigation procedure, the proposed regulations clarify that Title IX applies to all sex discrimination, including sexual orientation and gender identity discrimination. Although potentially important nationally, this change is unlikely to have a material impact in Massachusetts, which already prohibits discrimination on these bases.
The proposed regulations also clarify that retaliation includes retaliation against students by other students.
The proposed regulations will be open for comment for at least 60 days after the DOE formally publishes them in early-July. The DOE will then evaluate the comments and determine whether to make revisions to the proposed regulations. Only after the DOE formally adopts the proposed regulations, or a variation thereof, will schools be able to rely upon them in addressing their Title IX obligations.
We will continue to evaluate the proposed regulations, and provide further updates as appropriate. In the meantime, please feel free to contact any member of our Public Education Law Group.
