Education Department Proposes New Title IX Regulations: Responding to Sex Discrimination and Harassment at School

Education Department Proposes New Title IX Regulations: Responding to Sex Discrimination and Harassment at School

Legal Sidebari

Education Department Proposes New Title IX
Regulations: Responding to Sex
Discrimination and Harassment at School
August 10, 2022
The Department of Education (ED) recently issued a Notice of Proposed Rulemaking (NPRM) to amend
its current regulations that implement Title IX of the Education Amendments Act of 1972 (Title IX). Title
IX prohibits discrimination on the basis of sex in education programs or activities that receive federal
financial assistance. As explained in more depth in an earlier Legal Sidebar, ED previously overhauled its
Title IX regulations in 2020. The changes ED made in 2020 focused in large part on delineating how
schools must respond to allegations of sexual harassment. The new NPRM, if adopted, would change a
school’s responsibilities with respect to such responses in several ways. In addition, the proposal would
define Title IX’s prohibition of sex discrimination to extend to “sex stereotypes, sex characteristics,
pregnancy or related conditions, sexual orientation, and gender identity.”
This Legal Sidebar focuses on the changes the NPRM would make regarding a school’s response to
allegations of sex discrimination. It begins with an examination of the NPRM’s provisions for a school’s
responsibilities under the statute, including training and monitoring requirements, as well as what conduct
counts as sex-based harassment for purposes of Title IX. The Sidebar then focuses on the NPRM’s
requirements for recipient schools’ grievance procedures when responding to allegations of sex
discrimination generally and concludes by addressing the NPRM’s more specific grievance procedures
proposed for postsecondary institutions when investigating and adjudicating allegations of sex-based
harassment. (A future Sidebar will focus on the NPRM’s proposed change to interpret the scope of Title
IX’s ban on sex discrimination to include discrimination based on sexual orientation and gender identity.)
Given the complex background of Title IX, including ED guidance documents, prior rulemaking activity,
and various judicial decisions, this Sidebar builds on previous CRS reports and Sidebars that discuss such
materials in more depth.
General School Responsibilities
Like various other civil rights statutes, Title IX makes compliance with its discrimination ban a condition
for receiving federal financial assistance, although its scope is limited to educational programs. While the
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statute does not explicitly mention sexual harassment, the Supreme Court has ruled that a “deliberately
indifferent” response of a recipient educational institution to incidents of sexual harassment—both by
teachers against students and between students—can constitute discrimination based on sex in violation of
Title IX.
In addition to enforcement by courts, the statute is also enforced administratively. For instance, ED has
adopted various Title IX regulations that predate the 2020 rulemaking that impose obligations on recipient
schools, such as directing the appointment of a Title IX coordinator and the adoption of grievance
procedures to resolve complaints under the law. The agency has also issued guidance documents that
further elaborate expectations for schools. The 2020 Title IX regulations defined what conduct constitutes
sexual harassment under Title IX and established a number of procedural requirements that schools must
use when responding to allegations of sexual harassment.
Conduct That Can Constitute Sex-Based Harassment
The NPRM, if adopted, would retain certain aspects of ED’s current definition of what conduct counts as
sexual harassment under its Title IX regulations. Before adoption of the 2020 regulations, ED guidance
described sexual harassment as generally falling into two categories: (1) quid pro quo harassment by a
teacher or employee, described as conditioning of an educational decision or benefit on a student’s
acquiescence to unwelcome sexual conduct; and (2) hostile environment harassment, which was
described as unwelcome conduct that is “sufficiently serious” to limit or deny a student’s ability to benefit
from or participate in a school's program.
The 2020 regulations altered this approach and currently define sexual harassment for purposes of Title
IX as conduct on the basis of sex that meets at least one of three prongs. The first prong is when an
employee conditions the provision of an aid, benefit, or service on an individual’s participation in
unwelcome sexual conduct (quid pro quo harassment). Another prong is when a student or employee
commits sexual assault, dating violence, domestic violence, or stalking. Finally, “[u]nwelcome conduct
determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively
denies a person equal access to the recipient’s education program or activity” constitutes sexual
harassment. This standard draws from the Supreme Court’s decision in Davis v. Monroe County Board of
Education, which crafted a standard applicable to private suits for damages liability against schools for a
“deliberately indifferent” response to student-to-student harassment.
The NPRM proposes a modified approach. It would establish a definition of prohibited “sex-based
harassment” as including sexual harassment; harassment based on sex stereotypes, sex characteristics,
sexual orientation, gender identity, and pregnancy or related conditions; as well as conduct that meets the
requirements of one of the three prongs identified in the 2020 regulations, subject to certain changes. The
proposal would largely retain the first two prongs of conduct—quid pro quo harassment (although it
expands the definition to include a school’s agent or other person authorized to provide services), as well
as sexual assault, dating violence, domestic violence, and stalking.
For the third prong, harassment that creates a hostile environment, the NRPM would define this as
“[u]nwelcome sex-based conduct that is sufficiently severe or pervasive, that, based on the totality of the
circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate
in or benefit from the recipient’s education program or activity” (emphases added). The threshold to
establish harassment under this prong would thus appear to be somewhat easier to meet than the standard
in the current regulations. According to ED, the new standard would more effectively protect against sex
discrimination because it covers a broader range of misconduct than the current regulations do.

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Standard of Response for Schools
ED also proposes to change the standard expected of schools when responding to certain conduct. Before
ED’s 2020 regulations, ED guidance provided that in cases of sexual harassment, schools were
responsible for taking prompt and effective action to stop the harassment and prevent its recurrence. In
some cases, a school might also be required to remedy the effects of the harassment.
The 2020 regulations, drawing again from the Supreme Court’s decision in Davis, which concerned
damages liability against recipient schools in cases of student-on-student harassment (as well as Gebser v.
Lago Vista Independent School District, which focused on a teacher’s harassment of a student), provide
that recipient schools with actual knowledge of sexual harassment “must respond promptly in a manner
that is not deliberately indifferent.” According to Davis and the 2020 regulations, deliberate indifference
means a clearly unreasonable response in light of known circumstances.
The NPRM would eliminate the deliberate indifference standard and instead establish more specific
requirements for schools when responding to sex discrimination claims generally, obligating schools to
“take prompt and effective action to end any sex discrimination … prevent its recurrence, and remedy its
effects.” Under the NPRM, a school’s Title IX coordinator must affirmatively monitor for “barriers to
reporting information about conduct that may constitute sex discrimination” and take steps to address
them.
Training Requirements
The NPRM would expand training requirements as well. The 2020 regulations require schools to provide
training for Title IX coordinators, investigators, and the individual(s) rendering decisions (decisionmaker)
under the grievance procedures (addressed below), as well as anyone who facilitates informal resolution
procedures. The NPRM would require Title IX training for all of a school’s employees, with more
specific requirements for investigators, decisionmakers, facilitators of informal resolution procedures, as
well as Title IX coordinators.
Procedures Required in Response to Allegations of
Discrimination
Before adoption of the 2020 regulations, ED’s Title IX regulations already required schools to establish
grievance procedures to address complaints of sex discrimination in educational programs but did not
specify in detail what those procedures needed to include. ED’s 2020 regulations establish more specific
standards and requirements for schools in responding to allegations of sexual harassment. The regulations
require schools to follow a grievance process in response to formal complaints of sexual harassment that
includes procedures for investigations and determinations of responsibility; before a decision is made,
schools may also offer a voluntary informal resolution process.
Grievance Provisions for Recipients Generally In Response to Sex
Discrimination
The NPRM proposes to require certain baseline procedures for schools when responding to sex
discrimination claims generally for all recipients, rather than being limited to sexual harassment in
particular (as the 2020 regulations are). The proposal would also provide that an informal resolution may
be offered even if no complaint has been made.

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Decisionmaker: The 2020 regulations provide that when making a determination of responsibility in cases
of allegations of sexual harassment, the decisionmaker(s) cannot be the same person as the Title IX
coordinator or the investigator of the allegations. According to ED, this separation prohibits the “single
investigator model” that was used by some schools to adjudicate Title IX complaints prior to the 2020
regulations. The NPRM, by contrast, proposes to allow the decisionmaker in a case of alleged
discrimination to be the Title IX coordinator or the investigator. This would authorize the single
investigator model for adjudicating allegations of discrimination.
Access to Evidence: The proposal also appears to alter requirements concerning access to evidence used
in proceedings. The 2020 regulations require a school’s grievance procedures in cases of sexual
harassment to provide both parties an equal opportunity to inspect and review any evidence “directly
related” to allegations raised in a formal complaint (including evidence a school does not intend to rely
on). The NPRM instead proposes to require schools in cases of alleged discrimination to provide each
party with a description of “relevant” evidence that is not otherwise impermissible (with an exception for
postsecondary institutions in cases of sexual harassment discussed below).
Determining Whether Sex Discrimination Occurred: The 2020 regulations provide that schools may apply
the preponderance of the evidence standard (greater than 50% chance), or the more demanding clear and
convincing standard for determining responsibility in cases of sexual harassment, but must apply the same
standard to formal complaints against students as it does against employees, including faculty. Thus, if a
school uses the clear and convincing standard for complaints against faculty (which might be required
under a collective bargaining agreement), it must use that standard for complaints between students.
The NPRM proposes to remove the requirement that schools use the same standard of proof for students
and employees. It would require schools to apply the preponderance of the evidence standard in sex
discrimination cases, but permit a school to apply the clear and convincing standard if it does so in all
comparable proceedings, including proceedings regarding other discrimination complaints such as race,
color, national origin, and disability. According to ED, allegations of sex discrimination by a student are
comparable to allegations of other types of discrimination by a student; in contrast, allegations of sex
discrimination by an employee are comparable to other kinds of discrimination by an employee. Thus, the
NPRM would, for example, allow schools to use the clear and convincing standard of proof in
proceedings concerning employee misconduct, and the preponderance of the evidence standard for
student misconduct.
Postsecondary Institutions: Sex-Based Harassment
For allegations of sex-based harassment at postsecondary institutions, the NPRM would require schools
to generally follow the procedures described above, as well as another set of measures (sometimes
different) specific to the higher education context.
Background Appellate Decisions
In recent years, various individuals have challenged in federal courts the procedures used by
postsecondary institutions to investigate and adjudicate allegations of sexual harassment. ED’s 2020
regulations and its new NPRM as to postsecondary institutions are perhaps best understood within that
context. While schools have a responsibility under Title IX to respond appropriately with respect to an
alleged victim of harassment, constitutional requirements may constrain a public university’s
investigation and determination of responsibility as to an alleged perpetrator under the Due Process
Clause, although courts have taken different approaches to what is required. For instance, the U.S. Court
of Appeals for the Sixth Circuit has ruled that the Due Process Clause requires that when a student is
accused of misconduct, a public university must provide some type of hearing before imposing a sanction
such as expulsion or suspension. In addition, when a decision turns on a credibility determination, the

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university “must give the accused student or his agent an opportunity to cross-examine the accuser and
adverse witnesses in the presence of a neutral fact-finder.” By contrast, the First Circuit has concluded
that while the Due Process Clause does require public universities to conduct “real-time cross
examination,” this requirement can be satisfied through an inquisitorial system, such as questioning by a
hearing panel, rather than a party or party’s representative. The Fifth Circuit has also agreed with the First
Circuit’s reasoning.
Postsecondary Grievance Procedures for Sex-Based Harassment
The NPRM would establish specific procedures for postsecondary institutions when responding to
allegations of sex-based harassment.
Access to Evidence: As noted above, the 2020 regulations require certain grievance procedures when
responding to a formal complaint of sexual harassment. Schools must allow both parties to inspect and
review evidence “directly related” to the allegations. The NPRM would require postsecondary institutions
responding to allegations of sex-based harassment to allow the parties access to “relevant” and not
otherwise impermissible evidence upon request.
Hearings and Credibility Assessments: The 2020 regulations require a postsecondary institution’s
grievance procedures to provide for a live hearing. Each party’s advisor must “directly, orally, and in real
time” ask the other party and any witness relevant questions, including ones challenging credibility. Upon
request, this questioning can occur in separate rooms with the aid of technology. Before answering
questions, decisionmakers must determine whether they are relevant and may exclude nonrelevant
questions.
The NPRM proposes to eliminate the requirement for a live hearing for postsecondary institutions,
although schools may conduct them if they choose. (ED acknowledges the possibility that some schools
may have to conduct a hearing consistent with applicable judicial decisions.) The proposal would instead
require schools to establish a process to assess credibility of parties and witnesses if credibility is in
dispute and relevant. Schools can either allow the decisionmaker to question parties during an individual
meeting or allow a party adviser to ask questions during a live hearing.
Conclusion
The expectations of what recipient schools must do when responding to allegations of sexual harassment
have shifted through successive presidential administrations; at the same time, courts have imposed their
own requirements in cases challenging the procedures schools have used to adjudicate these issues. ED’s
NPRM, if adopted, would once again alter the responsibilities of recipient schools when responding to
allegations of sexual harassment; and establish new procedures for responding to complaints of sex
discrimination generally.
Given these shifting expectations and requirements for recipient schools, if Congress decides that a
school’s responsibilities under Title IX should be made explicit in statutory text, options include
amending Title IX to provide a definition of sexual harassment or delineating more specifically
obligations under the statute. Alternatively, were the NPRM adopted, pursuant to the Congressional
Review Act, Congress could pass a joint resolution of disapproval within the time limits that statute
requires. Finally, Congress may also seek to limit enforcement of those aspects of a regulation it might
disagree with through appropriations riders, though these provisions generally expire at the end of the
relevant appropriations cycle.
An upcoming Sidebar will examine another significant shift the NPRM would make: a proposal to define
the scope of Title IX’s prohibition on sex discrimination to include gender identity and sexual orientation.

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Author Information

Jared P. Cole

Legislative Attorney

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