Title IX: Celebrating 50 Years in the Changing Landscape of Education

TITLE IX:

50 YEARS IN THE CHANGING LANDSCAPE OF EDUCATION

This year marks the 50th anniversary of Title IX of the Educational Amendments of 1972. Through case law and federal regulation, the nature of Title IX has expanded over these last fifty years, reshaping to fit the needs of the ever-changing landscape of education. Most significantly, Title IX has come to govern how recipients of federal funding respond to sexual misconduct in education. In 2020, the Trump-era Department of Education implemented one of the most significant changes through extensive federal regulation.1 This article explores the changes made to Title IX under these regulations as well as the response of the current administration and predictions for the future.

The 2020 regulations redefined sexual harassment.2 This overarching definition of sexual harassment includes: quid pro quo committed by an employee of the recipient of federal funding; unwelcome conduct that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to an educational program or activity; domestic violence; dating violence; sexual assault; and stalking.3 Institutions may create their own definition of consent for the purposes of sexual assault.4 These definitions should be clearly detailed in institution policy.

In addition to the new definition of sexual harassment, the regulations narrowed the scope of Title IX. In order to file a formal complaint under Title IX, a complainant must be participating in or attempting to participate in the recipient’s educational programs or activities, which are defined as situations under which the recipient exercises substantial control over the respondent and the context in which the alleged harassment occurs.5 These locations may differ from the institution’s Clery Act geography.6 Significantly, these regulations also do not cover instances of alleged sexual misconduct that occur outside the United States.7 Institutions which provide study-abroad or foreign exchange opportunities for their students should examine how they will address allegations of misconduct arising out of their international programs.

Allegations which fall under this new definition and within the scope of Title IX must be adjudicated through a prescriptive process outlined in the regulations.8 This process includes many procedural details which are not enumerated here, including but not limited to the requirement of a formal complaint, notice requirements, and the opportunity for informal resolution in some circumstances.9 The opportunity for a live hearing constitutes one of the most impactful requirements.10 While many public institutions have required hearings since Doe v. Baum, 11 many institutions face their first live hearings under these new regulations. These hearings must include the opportunity for parties to have an advisor question other parties and witnesses.12 Hearing officers must make their determinations starting with the presumption that the Respondent is not responsible for a violation.13 Institutions may choose whether the hearing officers will use the preponderance of the evidence or the clear and convincing standard when weighing the evidence.14 These decision-makers cannot be the Title IX Coordinator or whoever investigated the allegations.15 These roles, and the role of the appellate officer(s), must be filled by different people, and parties still must be given the right to identify a conflict of interest or bias from any of the people in these roles.16 As a result, many institutions find themselves expanding their Title IX teams with paid employees or volunteers, who must receive specific training detailed under the regulations.17 Institutions should be prepared to find adequate training and to post the training materials on their websites for review.18 Institutions must also be prepared to find a way to share evidence directly related to the allegations with the parties.19 For many institutions, this may mean finding new secure forms of data sharing. For many institutions, these regulations have resulted in new policies which are much narrower than their previous sexual harassment and misconduct provisions. While the scope of Title IX and the definition of sexual harassment are narrowed under the current regulations, institutions still have obligations under such laws as the Clery Act and the Violence Against Women Act. Institutions should be prepared to address alleged violations beyond those defined in the regulations in accordance with their obligations under these laws as well. The regulations have also changed the role of Title IX in K-12 institutions. The 2020 regulations require K-12 schools, like their higher ed counterparts, to designate a Title IX Coordinator.20 In higher education the institution is considered to have actual knowledge of sexual harassment when the Title IX Coordinator, or other designated employees with authority, has knowledge of harassment; at the K-12 level, the school district is put on notice when any employee has

COVER STORY By: Kelly Hawk, JD, MSC

Title IX Coordinator/Institutional Compliance Officer Lincoln Memorial University

knowledge of the harassment.21 Educating employees on reporting duties will help ensure school can respond to allegations properly. Much of the prescriptive grievance process also applies to K-12 schools. While K-12 schools are not required to have live hearings, they must still provide parties with the opportunity to ask questions of other parties and witnesses.22 The decision-maker can be a principal, but the separation of roles described above is still required.23 For schools used to their principals handling all discipline, this may present a significant change in process and a need to train more staff to handle these situations. Further, for K-12 schools, which tend to have smaller communities than institutions of higher education, it may be difficult to ensure that the decision-maker does not have bias or conflict of interest with the parties due to previous interactions. Although these may or may not prove to be actual conflicts based on the specific circumstances, schools should be prepared to address concerns from parties about bias and conflict of interest.

The 2020 Bostock decision looked at discrimination based on sexual orientation in the employment setting under Title VII of the Civil Rights Act of 1964.24 The Supreme Court in that decision found that Title VII prohibition on discrimination “because of sex” included sexual orientation and gender identity.25 Shortly after assuming office, President Biden issued an executive order instructing administrative agencies to examine how the Bostock decision applied to their rules and regulations.26 The Department of Justice and the Department of Education, which both enforce Title IX, issued guidance on the subject. In March 2021, the DOJ issued a memorandum, in which it declared that, as Title VII law has often informed Title IX and as the language of the laws is similar, the Bostock decision applied to Title IX as well.27 Later that summer, in June 2021, the Department of Education released a Notice of Public Interpretation.28 This notice indicated the Department’s intent to interpret Title IX and the federal regulations to include discrimination on the basis of sexual orientation and gender identity; the document also notified the public of the Department’s intent to enforce Title IX as if it were so written.29 The expansion of this definition has not been codified, and several State Attorneys General, including the Tennessee State Attorney General, have taken the stance that the Notice of Public Interpretation is outside the legal authority of an administrative agency.30

Shortly after this Notice, the Departments jointly released a Fact Sheet on the issue. This Fact Sheet included scenarios that the Office of Civil Rights would investigate. These scenarios included bullying on the basis of sexual orientation or gender identity, requiring students to go by their legal names and genders, and refusing to allow transgender athletes to participate in sports that align with their gender identity.31 In contrast, a recent Tennessee law prohibits transgender athletes from participating in sports that do not align with the athlete’s assigned-atbirth sex.32 Another Tennessee law prohibits K-12 schools from allowing transgender students to use communal school restrooms that align with their gender identity.33 Compliance with state law, if not carefully done, may put a school afoul of federal guidance. When crafting policies to address the concerns of transgender students in Tennessee, schools should work closely with counsel.

Although Tennessee state law regarding transgender athletes currently focuses on students in the K-12 environment, institutions should be mindful on the role of transgender athletes in collegiate sports. The NCAA has issued its own policy regarding transgender athletes, which allows the athlete to compete with the team that aligns with their gender identity, under certain conditions.34 While it does not enforce Title IX, the NCAA expects member institutions to comply with Title IX.35

The landscape of Title IX has changed immensely over the past fifty years, and it is certainly not finished changing. The Department of Education announced that it anticipates introducing a new notice of proposed rulemaking in April 2022.36 Based on guidance from this current administration, changes to the definition of sexual harassment and scope of Title IX are likely to be included. The announcement and the Notice of Public Interpretation lend themselves well to predicting the codification of sex discrimination including gender identity and sexual orientation. With new changes once again on the horizon, institutions of learning will likely find themselves leaning more and more on counsel and JD-preferred staffers.

1 85 Fed. Reg. 30026 (May 19, 2020); 34 CFR §106. 2 See 34 C.F.R. §106.30(a) for the full definition. This article is not intended as legal advice nor as a comprehensive guide to complying with Title IX. 3 34 C.F.R. § 106.30 (a). See also 85 Fed. Reg. 30143 4 See 85 Fed. Reg. 30026, 30174 (May 19, 2020). 5 34 CFR § 106.44(a). 6 See 85 Fed. Reg. at 30197. 7 34 CFR § 106.44(a). 8 34 CFR § 106.45. 9 34 CFR § 106.45; 34 CFR §106.30. 10 34 CFR § 106.45(b)(6)(i). 11 See Doe v. Baum, 903 F.3d 575 (2018). 12 34 CFR §106.45(b)(6)(i). 13 34 CFR §106.45 (b)(1) (iv). 14 34 CFR §106.45(b)(1)(vii). 15 34 CFR §106.45(b)(7)(i). 16 34 CFR § 106.45(b)(1)(iii). 17 Id. 18 Id.; 34 CFR §106.45(b)(10). 19 34 CFR §106.45(b)(5)(vi); 85 Fed. Reg. 30026, 30307. 20 34 CFR §106.8. 21 85 Fed. Reg. 30,026, 30,039. 22 34 CFR §106.45(b)(6)(ii). 23 34 CFR §106.45(b)(7)(i). 24 Bostock v. Clayton County, 140 S. Ct. 1731, 1740-43 (2020). 25 Id. 26 Exec. Order No. 13,588, 86 Fed. Reg. 7023. 27 See Memorandum from Dep’t of Justice to Fed. Agency Civil Rights. Directors and General Counsels, Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972, (March 26, 2021). 28 Enforcement of Title IX of the Education Amendments of 1972 with Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, 86 Fed. Reg. 32,637 (June 22, 2021). 29 Id. at 32,639. 30 See Letter from Atty Gen. Herbert Slatery III, et al., to President Joseph Biden, Administrative Action Related to Bostock v. Clayton County (July 7, 2021). 31 Dep’t. of Justice & Dep’t of Education, Confronting Anti-LGBTQI+ Harassment in Schools: A Resource for Students and Families, (June 2021). 32 2021 Tenn. Pub. Law Ch. 40 33 Tennessee Accommodations for All Children Act, 2021 Tenn. Pub. Law ch. 453. 34 NCAA, Transgender Student-Athlete Eligibility Review Procedures (Jan, 28, 2022), www.ncaa.org/sports/2022/1/28/transgender-studen-athlete-eligibility-reviewprocedures.aspx 35 NCAA, Gender Equity Planning: Best Practices, www.ncaaorg.s3.amazonaws.com/ inclusion/bestprac/NCAAInc_BestPracticeGenderEquity.pdf 36 Statement by U.S. Department of Education Assistant Secretary for Civil Rights Catherine Lhamon on Title IX Update in Fall 2021 Unified Agenda and Regulator Plan, US Dep’t of eDUc. (Dec. 10, 2021), https://www.ed.gov/news/press-releases/ statement-us-department-education-assistant-secretary-office-civil-rightscatherine-lhamon-title-ix-update-fall-2021-unified-agenda-and-regulatory-plan?fb clid=IwAR1Fdz7TnNd1t5Idb0-NRe-9DUQk1xA4tqxP1bMzqC-CmzE6NdmTX8dlWH8.