By John Shields, PhD, MSW | July 1, 2022
Senior Research Scientist, ETR
The US Department of Education released new proposed Title IX regulations on June 23rd, 2022 to coincide with the 50th anniversary of Title IX, the landmark civil rights law that prohibits discrimination based on sex in K12 and post-secondary schools.
The Department’s “Notice of Proposed Rule Making (NPRM)” initiates the same process as in the previous federal administration – a 60-day public comment period once the rules are officially posted in the Federal Register, then an unknown number of months-long revision process, and then the ultimate issuance of the final rule. The prospect of legal and political challenges and resulting delays looms large over these new proposed rules, so it’s unclear exactly when they will become law. And remember: the current regulations are still in effect until the NPRM process is complete and the new regulations take effect.
Without having a clear timeline to follow, our best advice is to think about the next 12 months as a planning period and get ready for the new rules to take effect in the summer before the 2023-24 school year.
At ETR’s K12T9 Initiative, our first impression is that the proposed rules achieve a more appropriate balance of the rights of complainants and respondents in sex discrimination cases at the K12 level. The proposed rules also provide more flexibility and discretion for Title IX personnel at the K12 level. This is a welcomed change given the complexity of the cases we see in K12, but it also represents a shift in expectations that will require new levels of proactivity and coordination in a time when K12 districts and schools are already stretched to the breaking point.
ETR is also gratified to see several other changes in the regulations that align with our values as an organization. For example, we believe everyone should have the same access and opportunities in life, so the codification of Title IX protections for transgender students, for pregnant and parenting students, and for students studying abroad is warmly welcomed. All students deserve full and equal access to educational programs, activities, and opportunities.
Like you, we’ll be looking to our partners in the legal industry to help us understand the full legal implications of the new regulations. And like many of you, we’ve poured through the proposed regulations and are seeing several important changes that all K12 stakeholders should understand as we prepare for their arrival.
The changes in the proposed rules will undoubtedly: require significant adjustments to current K12 policies, procedures, and practices; require updated and more expansive training; necessitate the modification of case management workflows, data collection systems, and program evaluation indicators; require close attention to navigating new complexities around the provision of supportive measures; and require deeper engagement and coordination with Special Education providers. Similar to the last revision of the regulations in 2020, these revisions will require significant effort in K12 districts and schools to achieve compliance with the pending regulations — and we wonder what future federal administrations might bring.
What Stays the Same and What Changes in the New Title IX Regulations
From our perspective as researchers and practitioners in the K12 Title IX space, here are some of the most notable things we are seeing as we begin to analyze the material. For example, the proposed rules would:
- Revise the definition of “sex-based harassment,” lowering the bar on what may constitute harassment compared to the current regulations. A wider range of conduct would be explicitly prohibited under Title IX.
- Clearly underscore that transgender students are protected under Title IX without ambiguity, as well as clarify protections against harassment based on “sex stereotypes and gender identity.”
- Provide more accessible pathways for the initiation of complaints and informal resolutions in K12. The proposed rules clarify that oral or written requests are sufficient to initiate investigation and remediation procedures, whereas current regulations require a written and signed complaint form only, sent only to the Title IX Coordinator.
- Underscore the responsibility of all “non-confidential” K12 employees to notify their Title IX Coordinator when they have information about conduct that may constitute a violation of Title IX or provide the Title IX Coordinator’s contact information to the person providing the information.
- “Confidential employees,” including those who provide services to K12 students related to sex-based discrimination, would be required to (a) explain their confidential status, (b) provide the Title IX Coordinator’s contact information, and (c) explain how to report information about conduct under Title IX to a person who provides information that may constitute a violation of Title IX.
- Clarify that persons other than students and employees are protected under Title IX if they were participating or attempting to participate in a school’s program or activities (e.g., like a volunteer, guest, or vendor).
- Clearly delineate the rights of pregnant and parenting students – under Title IX, districts cannot discriminate against “any student based on the student’s current, potential, or past pregnancy or related conditions.” Schools must now also provide lactation spaces.
- Provide new guidance and responsibilities regarding students in special education – Title IX staff must coordinate and plan with the student’s Individualized Education Plan (IEP) or Section 504 team to ensure the implementation of supportive measures in Title IX cases complies with the Individuals with Disabilities Education Act (IDEA).
- Provide additional guidance related to supportive measures. For example, K12 schools would have the discretion to discontinue supportive measures at the conclusion of the grievance or informal resolution processes and require an appeals process if services are discontinued.
- Provide much more discretion to K12 around the use of informal resolutions in Title IX cases. A voluntary informal resolution process would be allowable unless the allegations include conduct by an employee toward a student. The proposed rules provide more detailed guidelines around the use and misuse of informal resolution processes, including the fact that the initiation of informal resolution would not require a pre-existing formal complaint.
- State that the decision-maker may be the same person as the Title IX Coordinator or investigator, removing a significant administrative burden in K12.
- Retain language around the presumption that the respondent is not responsible for the alleged conduct until a determination is made through a compliant grievance process and retain language around preventing bias and/or conflicts of interest.
- Restore study abroad protections - students participating in educational programs or activities outside of the United States would be protected under Title IX.
- Replace the required “10-day” review periods linked to specific stages in the grievance process (e.g., access to all evidence, upon the issuance of the investigation report, findings of responsibility) with a “reasonable opportunity to respond”. Districts would be required to provide access to all relevant evidence – whether inculpatory or exculpatory.
- Clarifies the use of evidence related to or asking questions about a complainant’s “sexual interests or prior sexual conduct” by adding the following critical language - “The fact of prior consensual sexual conduct between the complainant and respondent does not demonstrate or imply the complainant’s consent to the alleged sex-based harassment or preclude determination that sex-based harassment occurred.”
- The “advisors of choice” provision would be removed from the K12 grievance process, but the proposed rules would also clarify and empower the role of parents and caregivers in the grievance process.
- Provide greater discretion to schools around case dismissals using one or more of three criteria (1) the school is unable to identify the respondent as taking reasonable steps to do so, (2) the complainant voluntarily withdraws any or all of the allegations in the complaint and any remaining allegations would not constitute sex discrimination, and (3) if the school determines that the conduct alleged in the complaint, even if proven, would not constitutes sex discrimination. Under the proposed rules, appeals of dismissal decisions would be required.
- Requires a process whereby the decision-maker can “adequately assess the credibility of the parties and witnesses.”
- Requires the use of the preponderance of the evidence standard of proof in Title IX cases, unless the school uses the clear and convincing evidence standard in “all other comparable proceedings.” This means that a school would be able to use two different standards of proof for students and employees as long as they are consistent within those population groups (that is, that one standard is used in all student cases and another standard is used in all employee cases). The proposed rules would also require the preponderance standard in all sex discrimination cases involving an employee respondent and a student complainant.
- Would significantly reduce the administrative burden associated with written reports and notifications in Title IX cases. The proposed rules appear to not require a written investigation report, for example, and notifications could be done verbally.
What Comes Next for the New Title IX Regulations
As more details emerge, ETR will continue to analyze the proposed rules, participate actively in the public comment period, and plan ahead for these and other significant changes to policy, procedure, and practice. We strongly encourage you to also contribute your comments and perspectives to the NRPM process – make your voice heard!
ETR will keep you informed going forward. We’re focused on the practical implications for all stakeholders in the school community, while especially centering on students and their parents/caregivers and supporting professionals in Title IX and District offices, in schools, and in the community-based organizations that support those schools.
We’ll reaffirm our commitment to support all school-community stakeholders with our science-based resources, services, and products designed to support K12 efforts to eliminate, prevent, and address sexual and gender-based harassment and sexual assault in our nation’s schools. Join ETR in the fight for health equity – so all youth, families, and communities have the access to the information, skills, and opportunities they need to lead healthy lives.
John Shields, PhD, MSW, (he/him/his) is a Senior Research Scientist and Director of the K12T9 Initiative at ETR. He leads ETR’s School-Based Health & Wellness program, which includes a wide range of research, evaluation and information technology projects within K-12 school districts. He can be reached at firstname.lastname@example.org.