As early as this month, the Biden Administration is expected to release new guidance regarding compliance under the Title IX educational equality law. Jenelle Beavers of Alvarez & Marsal explores what covered institutions need to know to mitigate risk.
Title IX of the Education Amendments of 1972 is the most important federal law dedicated to gender equality in programs offered at schools, colleges and universities that receive federal money. The U.S. Department of Education’s Office of Civil Rights (OCR) is the principal enforcer of the law, and priorities for enforcement have varied between presidential administrations.
These priorities may include access to higher education, athletics, career training and education, education for pregnant and parenting students, employment, the learning environment, math and science education, sexual harassment, standardized testing and technology. Between 2011 and 2020, competing interpretations of the law issued by the Obama and Trump administrations resulted in federal requirements to invest in internal infrastructure and personnel to prevent, detect and report harassment and sexual assault and to adjudicate sexual harassment and sexual assault claims fairly. Since 2011, the conceptual and tangible requirements for comprehensive and inclusive approaches to equal educational environments have evolved.
In May, OCR is expected to release a new proposed rule aimed at some of the changes to Title IX requirements adopted as recently as August 2020 as well as introduce requirements arising from evidence adduced about safe and equal educational facilities, institutions and environments since 2011. Those changes include, broadly, approaches to addressing sex-based harassment, providing inclusive environments for those pregnant and parenting in educational settings, and related changes in personnel and procedures to ensure that the aforementioned changes are effectively implemented.
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Read moreDetailsSex-based harassment
Over time, the legal acknowledgment of conduct that arises to sexual harassment — itself a concept anchored in civil rights law that predated Title IX — has expanded, and the proposed rule sets forth a reformulation of that conduct and corresponding requirements for addressing it. In addition to sexual harassment as it was codified under the Obama and Trump administrations, the proposed rule covers harassment on the basis of sex, sex stereotypes, sex characteristics, sexual orientation, gender identity, pregnancy or parenting status and any related conditions whether or not the harassment is sexual in nature. The proposed rule addressing “sex-based harassment” therefore includes but is not limited to sexual harassment. It further elaborates on what conduct is, or is tantamount to, retaliation for bringing claims of sex-based harassment and what constitutes a hostile environment.
The proposed rule clarifies definitions of various terms related to obligations to address sex discrimination, including sex-based harassment. For example, the 2020 rule defined a complainant as “an individual who is alleged to be the victim of conduct that could constitute sexual harassment.” The proposed rule substitutes “sex discrimination,” as it is more comprehensively defined, for “sexual harassment” and removes the word “victim” as stigmatizing. Covered institutions must also adopt more extensive measures to take action to end any sex discrimination that has occurred in their education program or activity, prevent its recurrence and remedy its effects.
The proposed rule further expands the obligations related to the grievance procedures and other necessary steps when it receives a complaint of sex discrimination. The number of parties who may commence an action for sex discrimination is expanded, the places where obligations attach is expanded, and the evidentiary burden is amended from “clear and convincing” to “preponderance of the evidence” in most circumstances, to name three significant changes.
Pregnancy and parenting
With regard to discrimination against individuals who are pregnant or parenting, the proposed regulations define the term “pregnancy or related conditions” and the term “parental status” and prohibit discrimination against students and applicants for admission or employment on the basis of current, potential or past pregnancy or related conditions.
The proposed rule further details new policies and related training that accompany pregnancy and learning while parenting. Aspects of these characteristics, such as leave for childbirth and recovery or intermittent absences for lactation, represent important policy updates that institutions need to implement if they have not already; other important policy updates involve related exclusions from education and a loss of future economic stability that may result when those conditions are not addressed. The proposed rule emphasizes that discrimination related to parental status, “which is a particular issue at the postsecondary and graduate level,” is of particular concern where education involves the provision of research projects, teaching assistance opportunities and professional development opportunities that may be limited for parents generally and mothers specifically.
Personnel, procedures, training and recordkeeping
For recipients of federal financial assistance, and therefore covered under Title IX, the changes required as to personnel, procedures, training and recordkeeping are among the most important policies that should be reviewed. The proposed rule consolidates requirements for findings of fact, rationales for action and determination as to allegations and expands the notice and disclosure requirements when allegations of sex-based discrimination are made.
Title IX coordinators are enabled to designate others to oversee Title IX compliance across specific geographic spaces, classes of students and other discrete subgroups as long as the Title IX coordinator retains ultimate authority. The proposed rule also re-enables the unification of the Title IX coordinator as the investigator and adjudicator of claims arising under Title IX but retains the 2020 rule’s prohibitions on bias and conflict of interest. This combination of requirements allows greater efficiency in the operations of the office but raises additional risks that require careful assessment.
The proposed rule enumerates additional training programs that must be deployed by federal funds recipients pursuant to revisions in definitions, processes and notices. The revised training requirements include the expanded definition of sex-based harassment. It covers investigators, decision-makers and other individuals who are responsible for implementing the recipient’s grievance procedures (including training on the substance of the grievance procedures themselves) or who have the authority to modify or terminate supportive measures, as well as specific adjudication steps that include how to serve impartially. This includes avoidance of prejudgment of the facts at issue, conflicts of interest and bias, the meaning and application of the term “relevant” in relation to questions and evidence and the types of evidence that are impermissible regardless of relevance. The proposed rule imposes the broadest training requirement for the Title IX coordinator because “the person in that role should understand all aspects of the recipient’s Title IX compliance program, including their own roles and responsibilities and the roles and responsibilities of all other employees.”
Books and records provisions of federal law often represent not only an important aspect of enforcement and implementation but a key area of risk for institutions. The proposed rule broadens recordkeeping requirements to cover records related to a recipient’s actions “in response to all forms of sex discrimination, not only sexual harassment, and maintaining the seven-year retention period for records and the general types of records described in the current regulations.” Recordkeeping requirements are expanded with respect to those policies and procedures adopted pursuant to the enhanced duties to prevent discrimination and ensure equal access for students and employees in connection with pregnancy or related conditions. The proposed rule makes clear that modification of existing recordkeeping systems will be necessary and will require additional personnel time.
Conclusion
Keeping current with the law and practice of safety, inclusiveness and equality in schools, universities and other institutions that receive federal assistance is an essential part of the management and stewardship of the educational mission in the United States. The coming changes to Title IX represent an important update in these laws and practices that decision-makers, managers and others should comprehensively assess and implement.
Jenelle Beavers is a managing director with Alvarez & Marsal Disputes and Investigations in Denver and Washington, D.C. She specializes in investigating allegations of fraud, false claims and conflicts of interest and advising clients on compliance and strategic preventive management in regulated industries. With more than 17 years of litigation and investigations experience, Beavers has advised clients on legal, governance and strategic aspects of federal and state investigations across the private sector and government, including for the business software solutions, healthcare delivery, life sciences innovation and higher education industries. 
