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High Number of Comments on Proposed New Title IX Regs Cause Biden Administration to Delay Release of Final Rules

Last summer, at about the time Title IX proponents were celebrating the 50th anniversary of the landmark legislation, the Biden Administration released their eagerly-anticipated proposals for revising Title IX regulations that had been sharply adjusted during the Trump Administration in 2020. During the next three months, the Department of Education accepted comments on the proposals. The plan was to review the comments, make changes, and issue the new regs in May.

Now the Department has pushed back the release until October. That means the current regulations will remain in force for five months longer than many people wanted. But it may also signal other changes could be on the way.

Reasons for the Delay

During the comment period, the Department of Education received more than 240,000 submissions. By contrast, during the last revision, the Department only needed to consider 124,000 comments. To allow ample time to review and consider all the input and create regulations that will be “enduring,” the Department decided to delay the release from May until October.

In the announcement, the Department reported that it would be updating its Spring Unified Agenda with an anticipated release date of October 2023 for the proposed new regulations addressing athletics. During the comment period from April 12 through May 15, 2023, the Department received over 150,000 comments on these regulations. Administrators reaffirmed their commitment to protection against sex discrimination for all students, thanked the public for their comments, and assured everyone that amending the regulations remains a top priority.

Longer Wait for Expanded Application of Definition of Sex Discrimination 

Anyone looking forward to expanded application of Title IX grievance procedures to additional forms of sex-based harassment will now have to wait longer to bring a complaint. The proposed new rules define sex-based harassment to include not only sexual harassment but also harassment based on the following:

  • Sex stereotypes
  • Sex characteristics
  • Pregnancy or conditions related to pregnancy
  • Sexual orientation
  • Gender identity
  • Other sex-based conduct

In addition, the proposed regulations also expand the conditions that constitute an actionable hostile environment under Title IX. Under current rules, a complaint is justified only if sex-based conduct is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” When the new rules take effect, assuming the adopted rules are equivalent to the proposal released last year, then a respondent can be held responsible for conduct unwelcome sex-based conduct if it is 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 the recipient’s education program or activity. The loss of the objective offensiveness requirement is expected to allow complaints in many more circumstances, but these will have to wait for now.

Existing Procedures Remain in Place for a While Longer

The current requirements schools must follow in Title IX investigations, and the decision-making process will remain in effect for at least five months longer now. This means schools will continue to be required to hold hearings with cross-examination. Many believe that this requirement deters potential complainants from formally filing a complaint because they don’t want the pressure and trauma of facing the respondent in a court-like setting or the pressure of examination by an attorney.   

The continued duration of the current procedural requirements means that schools will not be able to use a single investigator/decision-maker model. Instead, the decisions must be made by someone other than the Title IX Coordinator or the individual who investigated the complaint.

Wait to Implement Additional Expansions of Title IX Rules  

The proposed new regulations expanded the application of Title IX in other ways, and it will be interesting to see whether the response to comments will reign in any of these expansions or add to them. For instance, quid pro quo sexual harassment would be expanded to include the conduct of not only employees but also agents or others authorized by the institution to provide aid, benefit, or service under the educational institution’s education program or activity when that individual explicitly or impliedly conditions the benefit on participation in unwelcome sexual conduct.  

The expansion acknowledges that some people who are not employees can still use their authority to coerce others into unwelcome sexual conduct. Even a student in a position of authority would be covered by the quid pro quo standard.

Another expansion in Title IX application involves off-campus conduct. The changes proposed last year would require educational institutions to respond to allegations of sex-based discrimination in programs held outside the U.S. and in off-campus activities when an alleged hostile environment exists back home in the educational institution’s education program and the initial conduct “contributed” to that hostile environment. But for now, the application of the Title IX standards is limited to actions in the U.S. and in the school’s program.

History on Hold 

The Department of Education proudly announced that the regulations proposed last July and now delayed until at least October are “historic” in the way that they strengthen protections for students experiencing harassment and for the protections that provide for LGBTQIA+ students. But for now, history has to wait.

The reasoning in the vast number of comments could persuade the Department to expand its proposals even further or to dial back on some changes. For now, however, anyone wanting to bring a Title IX complaint must work within the existing rule framework.

If you are considering an action, the experienced team at Duffy Law could review your situation and determine your best course of action taking the new delays into account. We are dedicated to upholding the ideals of Title IX and ensuring that students and staff receive the justice they deserve, whether they need to file a complaint or respond to allegations. For a confidential consultation to discuss your options, contact us today.

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.