The release by the Department of Education of preliminary proposed new rules regulating the implementation of Title IX requirements on campuses across the country has received extensive attention. The proposed new rules are broad in scope and dense. The Notice of Proposed Rulemaking (NPRM) consists of some 700 pages, including a 650-page preamble of explanatory materials and 50 pages of proposed new regulations.
Yet the release of the NPRM is only the beginning of an extended comment and review process that will take months to complete. While the final rules may end up looking much like current proposed rules, there are likely to be some substantive changes made based on comments received. Nevertheless, as the higher education community awaits the final new regulations, institutions can begin meaningful preparations for this new era in Title IX application.
To be in the best position when final regulations are published, institutions should take inventory of their current practices now. In particular, the proposed rules signal likely shifts in several key areas. Of these, several may warrant preparatory reviews of existing institutional policies. These include:
1 – Assessing the Adequacy of Your Title IX Staff Size
The proposed rules would significantly expand the scope of the types of conduct and the types of individuals covered by Title IX, codifying the act’s application to situations involving alleged discrimination based on sexual orientation as well as claims based on “current, potential, or past parental, family or marital status,” language that implicates the rights of pregnant students and others, with a focus on the provision of various types of accommodations. The proposed rules would also expand an institution’s ability to impose emergency removal and other supportive measures in regard to a respondent where an “immediate or serious” threat may be posed to the health or safety of others. Thus, the number of claims made on individual campuses is likely to grow under the new regulations.
2 – Reviewing the Scope of Current Campus Training
The proposed rules would significantly expand the category of individuals considered to be mandatory reporters. In addition, virtually all employees of an institution may have reporting responsibilities of varying degrees when they become aware of conduct which may constitute sex discrimination under Title IX. Thus, campuses may wish to consider expanding their audiences and resources for training.
3 – Weighing the Impact That Current Hearing Requirements Have Had on Your Campus
The proposed rules would permit institutions of higher education to choose whether to continue utilizing live hearing processes or employ processes that do not include a live hearing but incorporate various safeguards for complainants as the institution evaluates the allegations and assesses the credibility of the allegation of sex-based harassment. Thus, institutions may want to reconsider the effectiveness of processes they currently employ at Title IX hearings.
4 – Evaluating Your Institution’s Use of Informal Resolution
The proposed regulations expand the scope of situations within which informal resolution may be used to resolve a matter by extending this option to include instances where no formal complaint has been filed.
Since this release represents a preliminary stage in the formal issuance of new regulations, immediate changes in institutional policies are not likely necessary for most institutions. However, advance preparation and analysis of existing policies may ensure that institutions are able to adapt more efficiently once final regulations are released.
If your institution needs assistance in evaluating its current Title IX policies or in planning for looming changes, contact the Steptoe & Johnson Higher Education Team.