Department of Education Releases 2022 Proposed Title IX Regulations

The proposed Title IX regulations the Department of Education (ED) published July 12, 2022, are in “draft” form and not yet effective. But K-12 schools, colleges, and universities subject to Title IX should review them carefully, consult with legal counsel, and consider possible future changes to their sexual misconduct policies and procedures.

For now, institutions should continue complying with the 2020 regulations.

After the public notice and comment period ends on Sept. 12, 2022, ED will review the comments and consider revising the proposed regulations. Any new Title IX regulations only would take effect after final publication in the Federal Register. Given the expected high volume of comments and possible court challenges, a long wait may be in store.

United Educators (UE) will review and update our Title IX resources once the final regulations are published.

Highlights of the 2022 Proposed Regulations

This summary isn’t a comprehensive review, but it highlights certain significant provisions of the proposed regulations regarding:

• The expansion of Title IX’s scope
• The broadening of certain definitions
• Discrimination based on sexual orientation, gender identity, or sex characteristics
• Discrimination based on pregnancy or pregnancy-related conditions
• Schools’ responses to sex discrimination
• Differences for K-12 schools

Expanding Title IX’s Scope

The proposed regulations would require schools to address off-campus conduct if the respondent represents the school or engages in conduct “under the [school’s] disciplinary authority.” Alleged sex-based harassment occurring outside the United States (for example, in an institution’s study abroad program) would be subject to Title IX if that harassment “contributes” to a hostile environment within the institution’s education programs or activities in the U.S. (for example, after students return from abroad).

By contrast, the 2020 regulations don’t apply to a hostile environment resulting from sexual harassment that occurred outside a school’s education program or activity or outside the U.S.

Broadening Definitions of Prohibited Sex Discrimination and Harassment

Sex discrimination. Under the proposed regulations, Title IX would explicitly prohibit all forms of sex discrimination, including discrimination based on:

• Sex stereotypes (“fixed or generalized expectations regarding a person’s aptitudes, behavior, self-presentation, or other attributes based on sex”)
• Pregnancy or pregnancy-related conditions
• Sexual orientation, gender identity, or sex characteristics

Sex-based harassment. While the current regulations only ban “sexual harassment,” the proposed regulations would forbid “sex-based harassment,” meaning:

• Sexual assault, dating violence, domestic violence, and stalking as defined by the Clery Act (including amendments by the 2022 Violence Against Women Act’s (VAWA’s) reauthorization)
• Quid pro quo harassment, which would be expanded to cover conduct not only by employees but also by “agents or other persons authorized by the institution to provide an aid, benefit, or service” (such as volunteer coaches)
• Hostile environment harassment, meaning unwelcome sex-based conduct that’s 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 an education program or activity. (The current regulations apply only to unwelcome sex-based conduct that is so “severe, pervasive, and objectively offensive that it effectively denies a person equal access” to an education program or activity.) Whether a hostile environment exists would be a fact-specific inquiry dependent on multiple factors.

Discrimination Based on Sexual Orientation, Gender Identity, or Sex Characteristics

The proposed regulations explicitly include sexual orientation, gender identity, and sex characteristics in Title IX’s prohibition against discrimination “on the basis of sex.” In particular, the regulations would forbid schools from treating a person differently in a way that causes more than minimal harm, including through a policy or practice that prevents the person from participating in an education program or activity “consistent with their gender identity.”

This wouldn’t apply to practices Title IX otherwise allows, such as separate locker room or shower facilities, nor would it affect the exemption for religious schools.

Note: The proposed regulations don’t address athletics issues, including participation of transgender students on sports teams, for which ED plans to conduct a separate future rulemaking process.

Discrimination Based on Pregnancy or Pregnancy-Related Conditions

For both students and employees, the proposed regulations would reiterate that schools must not discriminate based on pregnancy or pregnancy-related conditions (childbirth, pregnancy termination and lactation, as well as medical conditions related to, or recovery from, any of these). Schools would have to provide:

• Individualized, reasonable modifications and voluntary leaves of absence for students
• Reasonable break times for employees
• Clean, private lactation spaces (not bathrooms) for students and employees

Employee training would be necessary, since any school employee who becomes aware of a student’s pregnancy would have to advise the student how to contact the Title IX Coordinator.

Moreover, schools couldn’t require students who are pregnant or have related conditions to provide medical certification of physical ability to participate unless the certified level is necessary for participation and the school requires similar certification from other students.

School Response to Sex Discrimination

The proposed regulations would significantly alter how schools currently respond to alleged sex discrimination. Rather than requiring that schools have “actual knowledge” of alleged discrimination and respond to formal complaints in a manner that isn’t “deliberately indifferent,” schools would be required to take “prompt and effective action” to end sex discrimination in their education programs or activities, prevent its recurrence, and remedy its effects.

Notification Rules. So that schools receive information about possible discrimination, the proposed regulations would impose specific notification (or reporting) rules on most school employees.

K-12 schools would have to require all non-confidential employees to notify the Title IX Coordinator if a non-confidential employee “has information” about conduct that may constitute sex discrimination. The proposed regulations would create different notification obligations for three categories of non-confidential higher education employees.

The proposed regulations generally define “confidential employees” as employees whose communications are privileged under federal or state law (such as licensed counselors) or those whom the school designates as confidential resources for the purpose of providing services related to sex discrimination. These employees would need to explain their confidential status to anyone who informs them about possible Title IX sex discrimination and explain how to contact the Title IX Coordinator.

In addition, schools would have to mandate that Title IX coordinators “monitor” programs and activities for “barriers to reporting information” about potential Title IX violations and take steps reasonably calculated to address these barriers. Appropriate monitoring methods could include campus climate surveys or public awareness events.

Complaints. Whereas the current regulations require Title IX complaints to be in writing, the proposed regulations would permit either written or oral complaints, which could be brought by:

• Students or employees alleging they were subjected to conduct that could constitute Title IX sex discrimination (removing the current regulations’ requirement that a complainant be participating in or attempting to participate in the school’s education program or activity at the time of bringing a complaint)
• Third parties (such as visiting athletes or prospective students) alleging they were subjected to Title IX discrimination who were participating or attempting to participate in an education program or activity when the alleged discrimination occurred
• The Title IX Coordinator

Supportive Measures. The Title IX Coordinator would be required to offer supportive measures to parties upon learning of conduct that might constitute sex discrimination under Title IX. If necessary for safety reasons, supportive measures could temporarily “burden” a respondent (for example, by suspension) while a grievance procedure is pending, although schools would have to give respondents an advance opportunity to seek their modification or reversal. No school could impose disciplinary sanctions before determining that Title IX was violated.

Grievance Procedures. The proposed regulations continue stressing the importance of fair and equitable treatment of the parties and avoiding any conflict of interest or bias on the part of officials involved in administering grievances. They also require two grievance procedures: one for general complaints of Title IX violations involving students, employees, or third parties, and the second for complaints of sex-based harassment with a higher education student as a party.

For all grievance procedures, the proposed regulations would:

• Allow — but not require — a school to dismiss complaints in various circumstances (such as when it can’t identify a respondent despite reasonable attempts to do so).
• Permit use of the single investigator model, with the investigator or Title IX Coordinator also serving as decision-maker.
• Mandate the preponderance of evidence standard to determine whether discrimination under Title IX occurred (but if a school uses the clear and convincing standard in “all other comparable proceedings,” it also could use that standard under Title IX).
• Require providing each party with a description of evidence that is relevant to the allegations of sex discrimination and a reasonable opportunity to respond.
• Allow — but not require — live hearings (which would be virtual in the school’s discretion or at a party’s request).
• Require schools to provide a “process” enabling the decision-maker to adequately assess parties’ and witnesses’ credibility.

For grievance procedures addressing sex-based harassment allegations involving a higher education student, the proposed regulations would impose additional requirements. For example, institutions must:

• Provide written notice of the allegations potentially constituting sex-based harassment to the parties whose identities are known (by contrast, the general grievance procedures state that institutions must provide “notice of the allegations” and don’t specify they must be in writing).
• Include the range of available supportive measures for both parties and the range (or a list) of the potential disciplinary sanctions and remedies a school may impose following a final determination.
• Allow each party an advisor of the party’s choice, although the institution could limit advisors’ ability to participate in the process.
• For the mandatory credibility assessment process, allow the decision-maker to question parties and witnesses either during individual meetings or at a live hearing.
• For the mandatory credibility assessment process, allow each party’s advisor to question parties and witnesses at any live hearing.
• State that if a party doesn’t respond to questions related to credibility, the decision-maker must not rely on any statement of that party supporting the party’s position, but the decision-maker can’t draw an inference about whether sex-based harassment occurred based solely on a refusal to answer credibility questions.
• Provide a written determination regarding whether sex-based harassment occurred (although written determinations wouldn’t be required for other Title IX discrimination grievance procedures).

Informal Resolution. The proposed regulations would continue allowing institutions to provide informal resolution, with a key difference: Internal resolution could be offered at any point in the Title IX process, regardless of whether a complaint is filed. Neither the school nor a party could use information obtained solely through the internal resolution process in a subsequent grievance procedure. The proposed regulations would let parties agree to restrictions on a respondent’s participation in school activities, programs, or events, including restrictions the school could have imposed as disciplinary sanctions had a grievance procedure resulted in a finding of responsibility. Internal resolution would remain unavailable in cases of alleged employee discrimination against a student.

Differences for K-12 Schools

The proposed regulations would treat K-12 schools differently from higher education institutions in various ways. For example, they wouldn’t be required to provide a written notice of allegations, a written complaint determination, or a right to appeal in any Title IX matters.

The proposed regulations would mandate that if either party to a K-12 matter is a student with a disability, the Title IX Coordinator “must” consult with the student’s Individualized Education Program (IEP) team or Section 504 team to help ensure compliance with the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973. (For higher education students with disabilities, the proposed regulations state that the Title IX Coordinator “may” consult with an official the school designates to support students with disabilities under Section 504.)

UE Recommendations

• All institutions should refrain from revising their sexual misconduct policies and procedures (for both Title IX and non-Title IX matters) based on the proposed regulations. Until and unless the proposed regulations become final, the 2020 regulations remain effective, and schools must comply with them.
• Higher education institutions should continue complying with VAWA requirements, which are separate from, and unaffected by, Title IX and its regulations.
• Higher education and K-12 schools must comply with relevant state laws, including laws in many states (including California, Illinois, New York, and Texas) governing obligations of colleges and universities to address campus sexual misconduct. Institutions also must comply with state laws regarding mandatory reporting of possible child abuse, including sexual molestation.
• Institutions should consult legal counsel about federal and state case law in their jurisdictions regarding schools’ handling of student sexual misconduct allegations. For public institutions, these cases usually focus on whether an accused student’s due process rights were violated. For private schools, courts typically consider whether a school’s disciplinary process breached an express or implied contract with an accused student.

Additional Resources

ED: Fact Sheet — U.S. Department of Education's 2022 Proposed Amendments to its Title IX Regulations