U.S. Department Of Education Proposes New Title IX Regulations

• Published date: 28 June 2022
• Subject Matter: Employment and HR, Consumer Protection, Discrimination, Disability & Sexual Harassment, Education
• Law Firm: Holland & Knight
• Author: Mr Jeffrey J. Nolan

Highlights

• The U.S. Department of Education issued new proposed Title IX regulations on June 23, 2022.
• When finalized, the new regulations will make sweeping changes to the current regulations' definitions of sexual harassment scope of coverage and procedural requirements.
• In general, the proposed regulations are a positive development because they will allow colleges and universities much more procedural flexibility than the current regulations, without adding too many additional compliance obligations.

The Biden Administration's Department of Education issued a new Notice of Proposed Rulemaking (NPRM) on June 23, 2022 - the 50th anniversary of the day Title IX was signed into law - intended to overhaul the Trump Administration's May 2020 Title IX regulations. A Department-prepared Fact Sheet and Chart summarize the proposed regulations.

As explained in a related press release, the Department's comprehensive review of the May 2020 Title IX regulations began in March 2021, as directed by an executive order from President Joe Biden. The Department sought public input from stakeholders and convened a nationwide virtual public hearing in June 2021, the results of which are mentioned often in the preamble to the notice of proposed rulemaking (NPRM). Once the NPRM is published officially in the Federal Register in a few weeks, the public will have 60 days to submit comments to the Department regarding the proposed regulations. The Department will then have to summarize and respond to the comments received and issue the resulting final regulations, which will include an effective date. More than 125,000 comments were submitted regarding the May 2020 regulations, and it took the Department more than 15 months to respond to those comments and finalize the regulations. If that experience is any guide, it is fair to assume that it will be many months before the Title IX regulations become effective. Until they are, the May 2020 regulations will remain in effect.

Colleges and universities should have a basic understanding of the NPRM, because while it is possible that relatively minor details could be changed in response to public comments, experience shows that the major themes of an NPRM are likely to be carried through to final regulations. This alert summarizes, in broad strokes, some of the more noteworthy changes that would be made by the proposed regulations.

Scope and Definition Changes

The May 2020 regulations narrowed the definition of "hostile...