In December, the Biden Administration announced that it plans to release new Title IX draft rules to the public by April 2022. (See our previous post on the announcement here.) Last week, the Department of Education Office for Civil Rights (OCR) provided an update on the latest step in this process.  

On Friday, OCR reported on its blog that the Department of Education sent the draft of the proposed Title IX amendments to the Office of Information and Regulatory Affairs (OIRA). At this stage, the draft amendments—known as a Notice of Proposed Rulemaking (NPRM)—are not yet available for public viewing. An internal review will be conducted by OIRA and the Department of Justice to analyze the costs and benefits of the proposed rules. Following the internal review process, the Department of Education will publish the draft rules in the Federal Register, where members of the public will have the opportunity to submit their comments on the proposed regulations. While the FAQs on the OIRA review process state that the process may take up to 90 days, the Department of Education may still be on track to issue the proposed amendments in April depending on how long the OIRA review takes.  Continue Reading OCR Provides Update on Rulemaking Process for Title IX

As a presidential candidate, now-President Biden promised that he would put a “quick end” to the Trump administration’s 2020 Title IX rules. Aiming to keep that promise, the Department of Education announced  its intention to release proposed amendments to Title IX’s implementing regulations by April 2022, a month earlier than initially expected. While the April 2022 date is not binding, it signals the Biden administration’s intent to start the lengthy rulemaking process as soon as possible.  
Continue Reading Biden Administration to Propose New Title IX Rules by April 2022

Governor Pritzker recently signed into law Public Act 102-0466 (House Bill 3223), which makes changes and additions to the School Code to support students who are parents, expectant parents, or victims of domestic or sexual violence. The new law goes into effect on July 1, 2025, except that several provisions noted below must be in place a year earlier. With changes to the Title IX regulations expected before 2025, how this new law will align with schools’ obligations under Title IX – or if additional amendments to this State law will be made prior to 2024 – remains to be seen. We will monitor developments to assist schools with implementation as we get closer to the effective date. We have outlined some of the highlights of the new law, including changes related to disciplinary hearings, home instruction, excused absences, and new policies, procedures, and trainings. 
Continue Reading Illinois Passes New Legislation to Support Students Who Are Parents, Expectant Parents, or Victims of Domestic or Sexual Violence

Tuesday, the U.S. Department of Education’s Office for Civil Rights (OCR) issued new, anticipated guidance concerning the Department’s current regulations related to sexual harassment. The guidance, titled Questions and Answers on the Title IX Regulations on Sexual Harassmentclarifies how OCR interprets schools’ existing obligations under the 2020 amendments. The Q&A addresses 67 questions covering a variety of topics ranging from general obligations under Title IX, sexual harassment, formal complaints, and participation in the grievance process to supportive measures, time frames, live hearings, informal resolution, and retaliation. The Q&A also includes an appendix containing example policy provisions addressing particular regulatory requirements.  
Continue Reading OCR Issues Q&A on Title IX Regulations on Sexual Harassment

The U.S. Department of Education’s Office for Civil Rights, or OCR, recently issued a Notice of Interpretation stating that Title IX of the Education Amendments of 1972 prohibits discrimination against LGBTQ+ students and employees in public schools, colleges, universities, and other recipients of Department funds. This would not necessarily be big news, because the United States Supreme Court recently recognized similar rights for employees under Title IX’s sister statute, Title VII of the Civil Rights Act of 1964. But it is news for schools. It’s the next chapter in OCR’s ever-changing position on this important question (from vigorous enforcement under the Obama administration to the Trump administration’s flip-flop in 2017 and subsequent clarification after Bostock in 2020). And although the information ED released answered some questions, many important questions remain.
Continue Reading Unanswered Questions on OCR’s About-Face on Transgender Rights

Paper tear background with word Complaints.

It’s an all-too-common scenario these days: Students  report sexual misconduct perpetrated against other, often unnamed students. They post anonymously on Instagram. They hang letters on walls or post complaints on bulletin boards. They hold protests and speak out at board meetings. Often, the allegations are nothing more than vague references to harassment and mishandling of reports by the institution. Our Title IX Decision Tree walks you through various decision steps of the Title IX process, including those related to bystander and anonymous complaints. We also have a free flowchart that addresses responding to bystander and anonymous complaints; email us at titleix@franczek.com to request a copy. For more on how to respond to bystander and anonymous sexual harassment reports under Title IX, keep reading here.
Continue Reading Responding to Bystander and Anonymous Sexual Harassment Complaints

Today, President Joe Biden issued an executive order addressing Title IX, entitled Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity. Unfortunately, the order sheds little light on how the Biden administration intends to change Title IX and, as a result, warrants little practical change for schools, colleges, and universities. The order directs the new Secretary of Education, Miguel Cardona, to “consider” suspending, revising, or rescinding the 2020 Title IX rule, but does not actually take any action with respect to the Trump-era rule. Similarly, it directs Cardona to issue “new guidance” interpreting the rules, but does not provide any actual guidance now. Perhaps the most interesting part of the order is language directing Cardona to consider “additional enforcement actions” to enforce the new administration’s position on Title IX. Does that mean that the Office for Civil Rights will begin taking a different position when investigating Title IX complaints, even before new guidance or rules are issued? As we have discussed before, the most reasonable approach for educational institutions now is to stay the course, implementing the 2020 Title IX rules as written, unless and until the Department says otherwise. Even then, schools, colleges, and universities will need to assess whether new guidance or direction from the Department will adequately protect institutions from legal challenges from those who may prefer the 2020 rules. Because of the statement in the order, however, schools, colleges, and universities should work closely with counsel when they receive a request or internal complaint involving sex-based issues. This is particularly true with respect to LGBTQ+ issues, upon which the Department has taken more concrete policy actions to date.
Continue Reading Biden’s Executive Order on Title IX Warrants Little Practical Change for Schools

wish listIn recent weeks, I have been lucky enough to be involved in the conversation about what changes the Biden administration should make under Title IX. In addition to informal discussions with colleagues, administrators, and associations, Real Clear Investigations interviewed me for a recent piece. I discussed the pressure that many schools felt under the Obama administration as one reason the Biden team should not simply return us to the Title IX guidance of that era.

Most conversations, including the Real Clear Investigations interview and article, focus primarily on Title IX and higher education. To some extent, that makes sense. There are more Title IX incidents in higher ed. Colleges and universities have and dedicate more resources toward the process. The highest-profile cases of mishandled complaints are from the higher ed space.

But K-12 administrators have been working hard since May 6, 2020, to implement the new Title IX regulations. They are already feeling the real impacts of the new rules in the schoolhouse (whether in-person, hybrid, or virtual). I have trained thousands of administrators during the summer and fall and helped countless others write policies and respond to complaints under the new rules. I have heard time and again how much in the 2020 rules are not workable for K-12 schools. If K-12 administrators had a wish list for the Biden transition team regarding their genuine and unique concerns, what might it be? Here are the top three considerations as I see them.Continue Reading A K-12 Holiday Wish List for The Next “New” Title IX