The Department of Education (ED) last week issued an “unofficial version of the proposed rule" revising the Trump-era Title IX regulations, another major overhaul to how colleges must respond to sexual assault and harassment. The proposal would expand the scope of Title IX's protections, including enhanced protections for LGBTQ+ students.
The administration released the text of the rule on the 50th anniversary of the landmark legislation that banned sex discrimination in colleges and universities, as well as K-12 schools. It is complicated—some 700 pages long—and not yet published in the Federal Register. It is likely to be many months before colleges know the exact scope of the regulations and how they will need to change their current processes.
"When it comes to government regulations, the specific wording and details are everything," ACE Senior Vice President Terry Hartle told Inside Higher Ed on Friday. “One thing we can say for certain is that, like when the current regulations were first proposed, this will attract tens of thousands of comments, pro and con."
Among the most significant of the provisions in the proposed rule, ED would eliminate the requirement for live hearings with cross-examination. And for the first time, Title IX regulations would define discrimination based on sex to include discrimination based on sexual orientation and gender identity.
In addition, the proposed rule includes the following provisions:
- Requires campuses to address sex-based harassment that occurs off campus, including harassment occurring outside the United States;
- Expands the circumstances for when employees will be required to report sex-based discrimination of which they are aware to the institution;
- Broadens the definition of what constitutes sex-based harassment to include conduct that is either severe or pervasive (current rules require the harassment to be severe and pervasive);
- Permits institutions to reinstitute the so-called “single-investigator model;"
- Allows a student to voluntarily choose an informal resolution process offered by their institution to address a Title IX complaint against a fellow student, but without first requiring the student to file a formal complaint; and
- Outlines new, more detailed requirements for an institution's obligations toward pregnant students and employees, including providing spaces and break time for lactation; reasonable accommodations for modifications to a student's class schedule; and allowing students to take a voluntary leave of absence for medical reasons and reinstatement upon return.
There will be a 60-day comment period after formal publication. The administration also announced they will hold a separate rulemaking process related to the criteria for student participation on men's and women's athletics teams, but it is unknown when that process will begin.
The Trump administration's regulations resulted in more than 120,000 comments in 2019, and it took more than three years from initial public hearings to the final rule taking effect.
The current Title IX regulations are the most complex and controversial in ED's history. These rules have been problematic both for institutions and for survivors of sexual assault. They've turned campus disciplinary hearings into adversarial, court-like tribunals that often subject students to vigorous cross-examination by highly paid outside attorneys. We hope that these proposed regulations will help address these and other concerns and move us in a more positive direction so that campuses can better prevent and address sex discrimination and provide greater equity for all students.