On Monday, September 12, 2022, the U.S. Department of Education closed the two-month comment period for the public to voice their opinions on the proposed changes to Title IX, the federal law that governs how schools supported by federal funding respond to forms of sex discrimination. Over 200,000 comments flooded the U.S. Department of Education during the 60-day period. Education Secretary Miguel Cardona’s draft rule would revisit the current mandate requiring live hearings to determine responsibility following a report of sexual violence. Instead, institutions could determine whether to hold a hearing or pursue a “single-investigator” model, which would allow one official to conduct interviews then render a determination. The new draft rule would also offer LGBTQ and pregnant students new protections under Title IX, and expand the definition of sexual harassment.
Who submitted comments?
Various associations, advocacy organizations, school boards, parents, students, and members of the public drafted comments to voice their opinions on the proposed regulations. Supporters praised the draft rule preserving informal resolutions to Title IX cases in lieu of formal hearings. On the other hand, critics panned the draft rule, arguing it is inconsistent with current law. They also argued that, by allowing institutions flexibility to choose the disciplinary model they deem most appropriate and thereby bypass a formal hearing process, the draft does not confer due process and will increase disparities amongst institutions. This proposed rule had almost twice as many comments submitted as compared to the regulations proposed by the Trump administration in 2018. Although widely criticized during its public comment period, the regulations largely went unchanged.
What happens next?
The Department of Education must address all comments in some form before releasing final regulations for Title IX. The Department will likely not respond to every individual comment, but watchers expect that the final regulations will address concerns that the public has raised. Currently, there is no timeline on when the Department is set to release its final Title IX regulations. However, the Trump administration needed nearly a year and a half to review the comments before finalizing the Title IX regulations that were implemented by the administration in August of 2020.
LCW will continue to monitor status of the new proposed Title IX regulations. If your institution needs assistance in complying with federal and state laws, please contact trusted legal counsel.