50th anniversary of Title IX brings proposed key changes
Title IX of the Education Amendments of 1972 (Title IX) was signed into law on June 23, 1972. The legislation declared, “No person in the United States shall, on the basis of sex, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” In the last fifty years, Title IX has expanded access to educational programs, including athletics, and provided students protections from sexual harassment.
On the 50th anniversary of the landmark civil rights legislation, the Department of Education (ED) released proposed amendments to the regulations implementing Title IX, changing certain aspects of the regulations issued in May 2020 and effective August 2020. The proposed regulations will be open for public comment for sixty (60) days following publication in the Federal Register. ED will then address all substantive comments before it publishes the Final Rule.
There are no immediate required actions for higher education institutions in the short-term. The current Title IX regulations took almost two years from the proposed rulemaking notice date (November 2018) to when the rule took effect in August 2020. Institutions should proactively consider their existing policies and procedures relative to the latest proposed guidance and regulations as well as continue to identify opportunities to improve compliance and streamline processes relative to the existing guidance they are required to follow.
The current regulations
Do not expressly prohibit discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.
The proposed rules
Expressly prohibit all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.
The current regulations
Prohibit unwelcome sex-based conduct that is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”
The proposed rules
Prohibit unwelcome sex-based conduct that is sufficiently severe or pervasive that, based on the totality of the circumstances and evaluated subjectively and objectively, it denies or limits a person’s ability to participate in or benefit from the recipient’s education program or activity.
The current regulations
Do not require a recipient to address a sex-based hostile environment if the hostile environment results from sex-based harassment that happened outside of the institution’s education program or activity, or outside of the United States.
The proposed rules
Require institutions to address a sex-based hostile environment in its education program or activity, including when sex-based harassment contributing to the hostile environment occurred outside the institution’s education program or activity or outside the United States.
The current regulations
Allow postsecondary institutions to decide which of their employees (aside from the Title IX Coordinator, and officials with authority) are mandated to report awareness of a sexual harassment incident to the Title IX Coordinator.
The proposed rules
Require that institutions mandate certain employees to notify the recipient’s Title IX Coordinator of conduct that may constitute sex discrimination under Title IX. An employee at a postsecondary institution who has authority to take corrective action or, for incidents involving students, has responsibility for administrative leadership, teaching, or advising in the institution’s education program or activity, would be obligated to notify the Title IX Coordinator.
The current regulations
Require institutions treat a complainant and respondent equitably by providing remedies to a complainant when it has determined that sexual harassment has occurred and by following a grievance process before imposing disciplinary sanctions or other actions on a respondent.
The proposed rules
Require institutions treat a complainant and respondent equitably at every stage of the institution’s response, including prior to the initiation of a formal grievance process.
The current regulations
Only require institutions to respond to formal complaints.
The proposed rules
Require institutions to conduct an impartial investigation of all sex discrimination complaints (i.e., no requirement for a formal complaint).
The current regulations
Require a live hearing with cross-examination conducted by the parties' advisors at postsecondary institutions.
The proposed rules
Enable institutions to provide an option to conduct live hearings with cross-examination or have the parties meet separately with the decision-maker and answer questions submitted by the other party when a credibility assessment is necessary.
The current regulations
Prohibit retaliation but do not include definitions of either “retaliation” or “peer retaliation.”
The proposed rules
Clarify that Title IX protects a person from retaliation, including peer retaliation. The proposed regulations provide definitions for both terms.
Baker Tilly can help
Our experienced higher education team can help your institution take a proactive approach to evaluate the current state of your Title IX policies, processes and internal controls to identify opportunities to ensure compliance with Title IX regulations and improve Title IX administration processes. We are also equipped to assist your institution in preparing for the upcoming new guidance.
For more information, or to learn more about how Baker Tilly’s higher education specialists can help your institution comply with Title IX and other regulatory requirements, contact our team.
