You may have noticed while skimming through the new Title IX proposed regulations that there are now seemingly two grievance procedures to address Title IX complaints instead of one. You’ll recall that the current 2020 regulations—which, it should be noted, are still in effect—outline the grievance process for formal complaints of sexual harassment in § 106.45. In the proposed regulations, however, there are now two sections—§ 106.45 and § 106.46—governing grievance procedures for Title IX complaints. Why the split, and what’s the difference between the two processes, if any?
Today, the Biden administration released its highly anticipated proposed Title IX regulations on the 50th anniversary of the passage of Title IX. The unofficial draft of the proposed rule can be found here. The Department also released a fact sheet on the draft rule as well as the Department’s summary of the draft rule’s major provisions.
As expected, the proposed Title IX rule marks a significant departure from the Trump administration’s Title IX regulations regarding sex discrimination and how institutions should respond to complaints of sex-based harassment. Some of the major changes in the new proposed regulations include:
- Clarifying that Title IX’s protections against discrimination based on sex apply to sexual orientation, gender identity, and sex characteristics.
- Replacing the 2020 standard of sex-based harassment (“severe, pervasive, and objectively offensive”) with the broader Title VII standard (“severe or pervasive”).
- Requiring institutions to address conduct that occurs off-campus when the respondent is a representative of the institution or otherwise engaged in conduct under the institution’s control.
- Making the live hearing and cross-examination requirement optional.
- Requiring institutions to provide supportive measures to students and employees affected by any type of sex discrimination, including but not limited to sexual harassment.
- Expanding the rights of parents and guardians to act on behalf of a student, including seeking assistance under Title IX and participating in a grievance procedure.
- Expanding the rights of students and employees who are pregnant or have pregnancy-related conditions.
In its press release, the Department also stated that it plans to engage in a separate rulemaking process to address Title IX’s application to athletics.
As this is just a proposed rule, educational institutions will not need to start updating policies and procedures just yet. Once the Biden administration’s proposed rule is officially published in the Federal Register, a 60-day public comment period will follow. OCR will respond to all public comments, finalize the rule, and publish the final rule and preamble in the Federal Register. As many of you may recall, the Trump/DeVos draft rule was released in November 2018, and the final rule was published in May 2020 with an implementation deadline of August 2020. Thus, while the exact timeline may vary, given the multiple steps required by the rulemaking process, we anticipate that the current 2020 regulations will continue to be in effect for the time being.
Our Title IX team is holding a webinar next week on Thursday, June 30 at noon, where we will provide a deeper dive into the new proposed Title IX regulations and their anticipated impact on K-12 schools, colleges and universities. Please join us then and feel free to send us any questions you’d like us to address. You can sign up for the webinar at this link here. In the meantime, feel free to reach out to us at TitleIX@franczek.com or any of our Title IX attorneys if you have questions.
*Also authored by Jenny Lee, a third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.
This week, we celebrate the 50th anniversary of Title IX, the landmark legislation signed into law on June 23 as part of the Education Amendments of 1972. Consisting of a mere 37 words—“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”—Title IX transformed the landscape of gender equity in education, expanding opportunities and ensuring fairness for women. We first saw Title IX make substantial changes in the realm of athletics, but it has since made significant strides in addressing sexual harassment on campuses across the country.
As we mark this important milestone, the Title IX team at Franczek remains committed to supporting educational institutions in their commitment to gender equity, an educational environment free from discrimination and sexual harassment, and continued compliance with Title IX. While there is still a long way to go, we want to honor those—including Dr. Bernice “Bunny” Sandler; Representatives Patsy Mink, Shirley Chisholm, and Edith Green; and Senator Birch Bayh—who advocated for and shepherded the passage of this law that has immeasurably improved the lives of millions of young women and girls. We also want to acknowledge the hard, often thankless work that educational institutions do every day to reverse and address the effects of discrimination based on sex and gender.
As we anticipate the release of the Biden administration’s proposed Title IX rules, our team will be here every step of the way to help you comply with Title IX as you prepare for the upcoming academic year and beyond. We will be announcing new opportunities for Title IX training later this summer targeted towards new administrators and those of you who are looking for a refresher. In the meantime, if you already know your training needs or want to discuss additional support options for your Title IX team, feel free to reach out to us anytime at TitleIX@franczek.com.
*Also authored by Jenny Lee, a third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.
Earlier this year, we launched a multi-part series where we provide a refresher on the key players on the Title IX team under the current 2020 regulations. While we wait for the Biden administration to release their proposed regulations soon, remember that the 2020 regulations are still in effect and will be for some time to come. With that in mind, we want to ensure that everyone is up to speed on the current roles and responsibilities of the members of their team. Now is a great time to identify who will serve in these roles for the upcoming school year and ensure those individuals have the necessary training.
For our final post in this series, we’re focusing our spotlight on the Title IX Advisor. Unlike the other Title IX roles that we’ve discussed in previous blog posts, there are no training requirements for advisors under the 2020 regulations. In fact, as we will discuss below, the advisor role can be filled by virtually anyone, including non-employees. However, we highly recommend that your school or college maintain a roster of trusted individuals who can fill in as advisors when needed and receive at least basic training in your Title IX policy and procedures.
The 7th Circuit Court of Appeals confirmed that school districts may only be liable for employee sexual misconduct when a school official has actual notice of the conduct. In C.S. v. Madison Metropolitan School District, the Court held that the Title IX obligations of a school district are limited in this regard. While various state laws impose additional requirements beyond Title IX for Illinois schools to respond to reported sexual misconduct by a school employee, this case provides important guideposts for when school districts may be subject to liability for monetary damages under Title IX.
In this case, a middle school student alleged a school security assistant sexually abused her throughout her eighth-grade year. There was no evidence that anyone witnessed the misconduct, and the student did not report the abuse until August 2014, when she was in high school. The Court noted that “if eighth grade were the whole story, it is clear that [the security assistant’s] alleged abuse, even if proven, could not give rise to liability for the school district” because the school had no knowledge, actual or otherwise, of the abuse.
In March, the U.S. District Court of the Western District of Washington ruled against a school district in favor of a student with intellectual disabilities, who was awarded $500,000 by a jury based on the district’s failure to address repeated acts of peer sexual harassment against the student. In the lawsuit, the plaintiff alleged that the school district violated the student’s due process and equal protection rights, violated Title IX, violated the Washington Law against Discrimination, and was negligent. The jury returned a verdict in favor of the plaintiff on her due process, equal protection, and negligence claims, and the court denied the district’s motion to set the verdict aside.
The case, Berg v. Bethel School District, is instructive on a range of issues relating to sexual misconduct involving students with disabilities, including a school district’s duty to protect a student with disabilities from sexual harassment even when the student does not explicitly object to the misconduct.
In February, we launched a multi-part series in which we provide a refresher on the key players on the Title IX team under the current 2020 regulations. While we wait for the Biden administration to release their proposed regulations, remember that the 2020 regulations are still in effect and will be for some time. With that in mind, we want to ensure that everyone is up to speed on the current roles and responsibilities of the members of their team.
Today, we focus our spotlight on the Title IX Informal Resolution Facilitator. The 2020 regulations permit institutions to facilitate an informal resolution process between parties involved in a Title IX grievance. The regulations briefly define the informal resolution as a “process, such as mediation, that does not involve a full investigation and adjudication.” There are several key timelines and requirements for the informal process, including the following:
- An informal resolution process can only take place after a formal complaint is filed.
- An institution may facilitate the informal process at any time prior to reaching a determination regarding responsibility. After a final determination, however, the institution is not permitted to conduct an informal resolution with the parties.
- The institution must provide the parties a written notice that relays 1) the allegations, 2) the requirements of the informal resolution process, and 3) any consequences resulting from participation in the informal process, including any records that will be maintained or shared.
- Both parties must consent to the informal resolution through voluntary, written consent.
- At any time, any party has the right to withdraw from the informal process and resume the grievance process with respect to the formal complaint.
- The informal process should take place within a reasonably prompt time frame.
- The informal process is not permitted to resolve allegations in which an employee sexually harassed a student.
- An institution may not require a party to undergo the informal resolution process and waive their right to a formal Title IX investigation and adjudication as a condition of enrollment, employment, or any other right.
In March, President Biden signed into law the Violence against Women Act Reauthorization Act of 2022 (VAWA), which Congress passed as part of the FY22 Omnibus appropriations bill. First passed in 1994 and reauthorized in 2000, 2005, 2013, and now 2022, VAWA is aimed at addressing sexual assault and other forms of gender-based violence by expanding access to safety and support for survivors and increasing community-wide prevention efforts. This latest reauthorization of VAWA contains several new measures and revised or new definitions that schools and colleges should be aware of and, if needed, be prepared to implement into their policies and procedures. In this post, we will provide an in-depth overview of VAWA updates that may be relevant to your institution.
Broadly, the 2022 VAWA reauthorizes all current VAWA grant programs until 2027; expands services and support for survivors of gender-based violence from underserved and marginalized communities, including LGBTQ+ survivors and those in rural communities; expands the criminal jurisdiction of tribal courts over non-Native perpetrators; establishes a federal civil cause of action for victims of cybercrimes; and—crucially for educational institutions—expands prevention education programs and grants for students in K-12 and higher ed. All provisions in the reauthorized VAWA are effective October 1, 2022, unless otherwise provided.
We recently launched a multi-part series where we are providing a refresher on the key players on the Title IX team under the current 2020 regulations. While we wait for the Biden administration to release their proposed regulations soon, remember that the 2020 regulations are still in effect and will be for some time. With that in mind, we want to ensure that everyone is up to speed on the current roles and responsibilities of the members of their team.
Today, we’re focusing our spotlight on the Title IX Decision-Maker. With the live hearing requirement for colleges and universities under the 2020 regulations, Decision-Makers play key roles in the formal grievance and appeals processes. The regulations outline three stages in which Decision-Makers play a primary role: the live hearing, the written determination, and the appeal. (Decision-Makers have slightly different responsibilities in the K-12 process, which we will also cover below.)
We recently launched a multi-part series where we are providing a refresher on the key players on the Title IX team under the current 2020 regulations. While we wait for the Biden administration to publicly release their proposed regulations, remember that the 2020 regulations are still in effect and will be for some time to come. With that in mind, we want to ensure that everyone is up to speed on the current roles and responsibilities of the members of their team.
In a previous post, we covered the roles and responsibilities of the Title IX Coordinator. Today, we’re focusing our spotlight on the Title IX Investigator. As you know, Title IX Investigators play a crucial role in your institution’s formal grievance process. Investigators are responsible for conducting fair and unbiased investigations and creating thorough investigation reports summarizing all relevant evidence that will help Decision-Makers make final determinations.