By Alisha Carter Harris, M.S., Consultant, TNG
On Title IX’s 50th Anniversary (June 23, 2022), the U.S. Department of Education released proposed changes to the regulations (“proposed rule”) that govern Title IX compliance. The proposed rule substantially alters the required recipient[1] response to sex-based discrimination, including pregnancy and related conditions as well as sexual harassment, sexual assault, stalking, dating violence, and domestic violence. The proposed rule also clarifies that “on the basis of sex” includes sexual orientation and gender identity, strengthening protections for LGBTQIA+ individuals who face discrimination on these bases. To effectively comply with the proposed rule once it is finalized, recipients (schools and colleges, for the most part) will need to make substantial adjustments to their nondiscrimination program, including updating the institutional policies and procedures that govern sex discrimination. As with the last regulatory changes that went into effect in August of 2020, recipients will likely only have 60 days to make the required changes to policies and procedures. To ensure an expedient revision process, Title IX coordinators will want to begin the planning process now to prepare stakeholders for the coming changes and the need to revise policies and procedures, accordingly.
While many of the policy and procedure requirements outlined in the proposed rule remain consistent with the current regulations, recipients must understand how the proposed rule will alter their current nondiscrimination program and begin to discuss how the institution or district will effectuate the necessary policy and procedure changes in a timely manner. Recipients should note that their policies and procedures must remain compliant with the 2020 Title IX regulations until the proposed rule is finalized and the Department of Education communicates an implementation date, likely sometime in late 2022 or early 2023.
Actions Recipients Can Take Now
Recipients can take several actions now to prepare for the changes that will be required once the proposed rule is finalized.
- Understand what changes will be required by the proposed rule. The proposed rule is lengthy (50+ pages of regulation and 650 pages of preamble) and will require updates to all facets of the recipient’s nondiscrimination program as it relates to sex discrimination. Recipients should understand the provisions of the proposed rule and start internal discussions with their legal counsel and key stakeholders to develop a strategic implementation plan for the final regulations. Key areas recipients will want to pay attention to are: (1) the proposed definition of sexual harassment, (2) the requirements to adhere to the pregnancy and related conditions provisions, and (3) how their nondiscrimination program may be expanded to incorporate the scope of the proposed rule (i.e., discrimination on the basis of sex includes discrimination the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity).
- Understand the recipient’s policy revision process. Many recipients have a layered approach to adopting new or changing existing policies. Recipients should ensure they understand how to effectively navigate the policy/procedure approval process, work efficiently within shared governance structures, and notify key stakeholders that updated policies and procedures will be required once the proposed rule is finalized. While there is only a short turnaround time once the final rule is published, policy committees can begin to look at the proposed rule now to anticipate what it coming, and what changes will be necessary. Will you incorporate student stakeholders in the revision process? Parents? Faculty? How will you strategically include groups to enhance buy-in without bogging down the revisions in the typically slow approval process?
- Review current policies and practices. Because many of the changes that recipients will need to make involve pregnancy and related conditions and LGBTQIA+ protections, recipients should understand the policies and practices that are currently in effect at their institutions, determine if any changes can be made now that will not conflict with the 2020 regulations, and begin planning to update or develop others once the proposed rule is finalized.
- Review existing publications and website. Recipients are already required to broadly publish their nondiscrimination statements, so they should know where it is published and work with those constituencies to ensure that the language can be easily updated in all places it is published once the recipient adopts new language. For printed handbooks or other materials, recipients should identify what the revision timeline is to ensure that changes will be communicated in a timely manner prior to printing. Recipients will also want to take inventory of all the places the current policy and procedures live on their website to ensure outdated versions are effectively removed (and archived) once the new policies and procedures are implemented.
Additionally, the proposed rule and a recent OCR Resolution Agreement with Salt Lake Community College demonstrate this OCR administration’s focus on Title IX’s applicability to pregnancy and related conditions. Although pregnancy and related conditions falling within the scope of Title IX is not new, many recipients do not have web-accessible material available regarding rights and resources for pregnancy and related conditions, including a published grievance process. ATIXA expects OCR to keep these expectations in the final rule and encourages recipients to establish and publish their policies and procedures for requesting support for pregnancy or related conditions, available resources, and how to file a grievance if alleged sex-based discrimination occurs on the basis of pregnancy or related conditions.
- Notify the community of the proposed rule. Recipients may want to notify their community of the proposed rule and proposed implementation date, so that when policy and procedure changes are implemented, the community will already know how the changes will impact the recipient’s response to sex-based discrimination.
- Review collective bargaining agreements. Recipients in union environments will want to ensure union leaders are aware that the recipient will adopt updated policies and procedures and work with union leaders to ensure a smooth transition to the new regulatory requirements.
- Identify lactation spaces. Because the proposed rule will require recipients to ensure the availability of lactation space(s), recipients should be proactive in identifying spaces that can satisfy this requirement. The proposed rule will require lactation spaces to be a space, other than a restroom, that is clean, shielded from view, free from the intrusion of others, and accessible to both students and employees. Also be mindful that if the recipient operates during evening or weekend hours, lactation space must also be available during those times of operation.
- Understand the proposed rule’s training and mandated reporter requirements. The proposed rule will require recipients to train all employees on the recipient’s obligation to address sex discrimination in its education program or activity, a requirement that goes well beyond the training mandates of the existing Title IX regulations; the recipient’s nondiscrimination policy; the scope of conduct that constitutes sex discrimination; and all applicable notification and information requirements. Recipients will want to develop a training plan to ensure a smooth transition once this proposed requirement is implemented. Under the proposed rule, K-12 recipients will still be required to designate all employees as mandated reporters but will be permitted to designate employees as confidential resources. K-12 recipients will want to identify employees who may be designated as confidential and work with relevant stakeholders to develop an implementation and communication plan. Postsecondary recipients who do not designate all non-confidential employees as mandated reporters will want to review the mandated reporter requirements under the proposed rule because they are vastly different from the current regulations and vary depending on who receives a report. This variance will create complexity for training mandated reporters. These postsecondary recipients will want to develop an implementation plan to comply with the proposed rule once it becomes final.
- Understand jurisdictional requirements (postsecondary schools only). The requirements of § 106.46 vary by jurisdiction. For example, recipients in the First Circuit may adjudicate complaints without the need for a live hearing, while recipients in the Sixth Circuit will need to maintain live hearings with cross-examination. Recipients should understand how the proposed rule will impact the procedures they are required to adopt within their jurisdiction to ensure a smooth transition for complying with the proposed rule and any jurisdictional requirements.
- Follow ATIXA’s website for policy language. ATIXA is the best resource for Title IX compliance. Recipients should closely monitor ATIXA’s website for policy updates that comply with the proposed rule. ATIXA’s current model policy is open-sourced and may be accessed at: https://www.atixa.org/atixas-policy-and-procedure-tools/.
Read more ATIXA Tip of the Week blogs here.
[1] Recipient means an entity that operates an education program or activity and receives Federal financial assistance.