What now?
While the rule does not go into effect until August 1, 2024, there are many actions institutions will need to take starting today. This rule will require an overhaul of Title IX policies, including a new definition of sexual harassment and new procedures for investigating Title IX violations, which will require review and sign off at many levels.
Immediately, there will also be questions from students and campus communities that require sensitivity and a thoughtful response. Many stakeholders have been pushing for the new Title IX rules to take effect much sooner than August. There are others that will be pushing to keep the Trump-era policies in place. Campus leaders will need to communicate intentionally with their communities about what can be done before August 1, 2024, and what will be done thereafter.
It’s especially important to communicate that these policies are not retroactive on most campuses—or for Department of Education enforcement—meaning that the rule or policy in place when the alleged Title IX violation occurred (not when the report was made) is most often the rule or policy that any investigation will proceed under. As the new rule makes clear, “the Department will not—and does not have the authority to—enforce these final regulations retroactively; they apply only to sex discrimination that allegedly occurred on or after August 1, 2024.” Most institutions also enforce policies on a prospective basis, particularly regarding the definitions of prohibited conduct (i.e., investigating misconduct as it was defined at the time of the alleged incident). This is an important consideration for messaging to campus communities and for training your employees that are tasked with enforcing these policies.
What are the biggest changes?
As expected and proposed, the rule’s updated definitions of sexual harassment and updated investigation procedures are reminiscent of the Obama-era. Significantly, the rule expands the definition of sexual harassment from behavior that is “severe, pervasive, and objectively offensive” to “unwelcome sex-based conduct.” The rule also allows a return to a single-investigator model, where a single individual can serve as both the decision-maker and investigator. In that same vein, the rule explicitly allows an institution to tailor its Title IX processes to its size, the age of its students, and the resources available to it. The rule also allows a return to the “more likely than not” or preponderance of evidence standard, used in the Obama-era and in most civil lawsuits, instead of the “clear and convincing” standard of evidence used in the Trump-era rule.
New to the Biden-era, the rule adds significant protections for LGBTQI+ students and employees. The rule also requires protections for students and employees with need for accommodations related to pregnancy, breastfeeding, or the termination of pregnancy. While many of these protections are already in place in compliance with state law, institutions, with the advice of counsel, should carefully parse these rules in comparison with existing state law compliance efforts to ensure compliance.
What stayed the same?
As is often the case, the discussion surrounding the new rule focuses heavily on the changes. The consistencies through the Obama, Trump, and Biden eras, however, are incredibly important to note—not only as a lifeline for Title IX administrators that have experienced whiplash over the past decade from shifting political tides on the state and federal level, but for all of us who care about making our communities safe and welcoming places for students and employees of all backgrounds.
One such consistency is that every rule has included a requirement that schools assume an accused student is innocent at the outset of a Title IX investigation. This requirement has important implications for the kinds of remedial measures that can be taken when, due to the request of the complainant or other circumstances, no investigation is pursued. No remedial measures or actions taken by the institution to support a student who may have experienced sexual misconduct can take the form of sanctions on the accused without an investigation and a finding of a policy violation.
The rules also all include the option for an informal resolution process to varying degrees.
Why did this take so long?
While “bureaucratic red tape” is the answer most often given in response to this question, there are important protections that come with the process this Biden-era rule went through. The process, Notice of Proposed Rule Making (“NPRM”), is a formal process of administrative law that allows an executive branch agency to promulgate rules with more staying power than other types of guidance. Importantly, the Obama-era Dear Colleague Letters were not published through the NPRM, meaning that when Trump took office the Trump administration could repeal the Obama-era guidance with very minimal process. The Trump-era rules followed NPRM, meaning they required another NPRM from the Biden administration to overturn them. This also means that, come August 1, 2024, we will be governed by the Biden-era Title IX rule and likely will continue to be no matter what happens in the November 2024 election, unless and until a new administration goes through the NPRM.
Newsflash 2024-081
