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By: Candice Jackson
The U.S. Department of Education (ED) has updated its plans to issue amendments to Title IX regulations. In a statement by ED’s Assistant Secretary for Civil Rights, Catherine Lhamon, ED announced that the Department intends to publish proposed regulatory amendments in April 2022.
Under the previous Administration, Title IX regulations effective in August 2020 addressed sexual harassment for the first time. Those 2020 regulations currently govern what constitutes sexual harassment, what schools must do in response to alleged sexual harassment, and what rights to supportive measures and a fair fact-finding process complainants and respondents have in any school-level investigation into sexual harassment. ED’s press release last week described the purpose of Title IX regulatory amendments as:
…ensuring that schools have grievance procedures that provide for the fair, prompt, and equitable resolution of reports of sexual harassment and other sex discrimination; and to addressing discrimination based on sex, including sexual orientation and gender identity, in educational environments.
One of the most criticized aspects of the 2020 regulations was use of a definition of “harassment’ that requires unwelcome, sex-based verbal conduct to meet elements of severity, pervasiveness, and objective offensiveness in order to be actionable under Title IX. The prior Administration’s rationale for this definition of sexual harassment in an educational context (which mirrors the definition applied by the Supreme Court in private rights of action under Title IX) focused heavily on ensuring that enforcement of a non-discrimination statute does not infringe upon or chill the academic freedom and freedom of speech uniquely critical to educational environments. With the growing controversy and public discussion over “sex versus gender,” lowering speech and academic freedom protections could result in increased legal claims faced by schools who punish speech or writing about sex or “gender identity” as sexual harassment.
The other contentious aspect of the 2020 Title IX regulations were the specific procedural rights that schools must give to both parties involved in a sexual harassment allegation, including written notice of the charges, opportunity to review the school investigator’s evidence about the allegations, presumption that an alleged perpetrator is “not responsible” until proven otherwise, the option for the school to apply either the “preponderance of the evidence” standard of evidence or the “clear and convincing evidence” standard of evidence, and (in postsecondary institutions) the right for party advisors to cross-examine parties and witnesses at live hearings in front of unbiased decision-makers (who cannot be the same person(s) as the school investigator or Title IX Coordinator). The 2020 regulations also allow a school to facilitate “information resolution” of sexual harassment allegations, if both parties voluntarily want to forego the formal investigation and determination process and reach a resolution via mediation, restorative justice, or similar process.
The definition of actionable sexual harassment, and the procedural safeguards that schools must apply when deciding whether remedies and punishment are warranted when sexual harassment is reported, are two areas of the 2020 Regulations most likely to be proposed for amendment by ED in 2022.
ED’s plan to expressly codify “gender identity” as a basis for discrimination under Title IX ventures into uncharted territory. Despite the Supreme Court’s Bostock decision in June 2020, neither Congress nor the Supreme Court has yet required that Title IX apply to “gender identity” nor explained what constitutes discrimination on the basis of “gender identity” especially in situations where both sex and gender identity cannot simultaneously be the criterion for providing separate, comparable education programs or activities.
Title IX contains numerous exceptions in the statute, and in existing regulations, that expressly allow schools to provide certain educational “programs or activities” separately (but comparably) to each sex. Some of these exceptions include providing sex-separated student housing, human sexuality and physical education classes, sports teams, and “intimate facilities” (bathrooms, locker rooms). ED’s Notice of Interpretation of Title IX published this summer, and guidance ED and DOJ issued contemporaneously, indicate that there is no statutory or regulatory category of sex-separated programs, activities, spaces, or services that the Federal government any longer permits under Title IX. The rationale is that Title IX prohibits both sex and gender identity discrimination; however, ED has not yet proffered analysis explaining why providing a program or activity on the basis of sex (such as school sports or bathrooms) constitutes illegal discrimination on the basis of gender identity, when under statute and existing regulations it does not constitute illegal discrimination on the basis of sex.
When ED last proposed Title IX regulations, near the end of 2018, the Department received over 124,000 public comments – to date the highest number of comments on an ED regulatory proposal. Now that proposed regulations (planned for April 2022) involve amendments to the 2020 regulations defining sexual harassment and due process protections for Title IX grievance proceedings, as well directives about how schools must honor gender identity, public input to ED’s proposed regulatory amendments is likely to be at least as robust as it was in 2018-2019, and probably more so.
In the meantime, schools must design and implement policies on sexual harassment that are consistent with the 2020 regulations. As to policies on gender identity, schools are, for now, in a precarious position, risking claims by various groups of students or faculty regardless of how school policy addresses gender identity. Some constituencies view the lack of female spaces as discriminatory based on sex, and compelled “preferred pronoun” policies as violations of First Amendment rights, while other constituencies view lack of allowing eligibility into sex-separated spaces on the basis of gender identity (as well as refusal to honor “preferred pronouns”) as harassing or discriminatory based on gender identity.
ED’s near-future efforts to amend Title IX regulations are unlikely to stem the tide of lawsuits and administrative claims against schools arising out of intersections of sex, gender identity, sexual harassment, free speech, and due process. With Congress unlikely to wade into these controversies by undertaking amendment of the Title IX statute, the most likely source of reconciliation of these intersecting topics in a manner that may provide schools with legal compliance stability and baseline risk assessment is the U.S. Supreme Court. While there are cases touching upon these issues winding their way through the lower courts, the pathway to clarification by the Supreme Court is a long road, leaving schools for the foreseeable future pulled in seemingly opposite directions when navigating the competing legal risks inherent with school policies that touch upon sex, gender, and sexual harassment.
Freeman Mathis & Gary’s Education Practice Team advises educational institutions in risk identification and mitigation strategies and represents institutions facing Title IX claims. For more information about this topic, please contact Candice Jackson at [email protected]