To commemorate the 50th Anniversary of Title IX of the Education Amendments Act of 1972, the U.S. Department of Education’s Office for Civil Rights released proposed amendments to its Title IX regulations for public comment on June 23, 2022.

According to OCR, “The proposed regulations reflect the Department’s commitment to give full effect to Title IX, ensuring that no person experiences sex discrimination in education, and that school procedures for addressing complaints of sex discrimination, including sexual violence and other forms of sex-based harassment, are clear, effective, and fair to all involved.” Specifically, the proposed regulations serve to ensure that all students receive support as needed to access educational opportunities, and to enhance school procedures for investigating and resolving complaints of sex discrimination. 

The proposed Title IX regulations would:

• Prohibit all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity;
• Prohibit harassment that creates a hostile environment, in addition to quid pro quo harassment, which is already covered under the current regulations;
• Require federally funded schools to address all sex discrimination in education programs and activities, including when sex-based harassment occurs outside education programs or activities or the United States;
• Require schools to adapt grievance procedure requirements to the age, maturity, needs, and level of independence of students in various educational settings;
• Permit complaints under Title IX by former students or employees who are not participating or attempting to participate in a school’s education program or activity;
• Allow schools to offer an informal resolution process to address complaints of sex-based discrimination, even in the absence of a formal complaint;
• Require schools to adapt grievance procedures to apply to all complaints of sex-based discrimination;
• Add further requirements to grievance procedures for sex-based harassment complaints involving postsecondary students; and
• Define “retaliation” and clarifying the protective action required to prevent it.

The proposed amendments will be open for public comment for 60 days from the date of publication in the Federal Register. Interested individuals may submit comments via the Federal e-Rulemaking Portal at https://link.edgepilot.com/s/dd759ad3/kKlJdGu7OUq6AntrAt3rSw?u=http://www.regulations.gov/. At the end of the comment period, the Department of Education will conclude whether its proposed rule will help accomplish the goals or solve the problems identified, and whether any alternate solutions would be more effective or economical. 

In light of the proposed amendments, school districts should review their Title IX sex-based discrimination policies and complaint procedures and anticipate the need for changes if the proposed amendments are accepted. Additionally, school districts should expect proposed changes to Title IX regulations concerning athletics, as OCR has indicated that it will be engaging in a separate rulemaking process therefor. 

To discuss enforcement issues regarding these proposed regulations and/or other questions that arise relating to this Legal Update, please contact your Buelow Vetter attorney, or any member of the Buelow Vetter School Law team.