November 22, 2018

Amendments proposed to Title IX of Education Amendments of 1972: US


On November 16, United States Secretary of Education Betsy DeVos proposed amendments to Title IX of the Education Amendments of 1972, which is a comprehensive federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity. The principal objective of Title IX is to avoid the use of federal money to support sex discrimination in education programs and to provide individual citizens effective protection against those practices.

The proposed regulations would:

• Clarify and modify Title IX regulatory requirements pertaining to the availability of remedies for violations, the effect of Constitutional protections, the designation of a coordinator to address sex discrimination issues, the dissemination of a nondiscrimination policy, the adoption of grievance procedures, and the process to claim religious exemption.

• Specify how recipient schools and institutions covered by Title IX (hereinafter collectively referred to as recipients or schools) must respond to incidents of sexual harassment consistent with Title IX’s prohibition against sex discrimination.

• Promote the purpose of Title IX by requiring recipients to address sexual harassment, assisting and protecting victims of sexual harassment and ensuring that due process protections are in place for individuals accused of sexual harassment.

As the current regulations and guidance do not provide appropriate standards for how recipients must respond to incidents of sexual harassment, the proposed amendments have been introduced with a view to address sexual harassment under Title IX to better align the Department’s regulations with the text and purpose of Title IX and Supreme Court precedent and other case law, thus ensuring that recipients understand their legal obligations including what conduct is actionable as sexual harassment under Title IX, the conditions that activate a mandatory response by the recipient, and particular requirements that such a response must meet so that recipients protect the rights of their students to access education free from sex discrimination.

Moreover, the transparency of the proposed regulations will help empower students to hold their schools accountable for failure to meet those obligations. The proposed regulations will provide complainants reporting sexual harassment greater control over the process and will help ensure that schools provide complainants with clear options and honor the wishes of the reporting individual about how to respond to the situation, including increased access to supportive measures.

A summary of the Major Provisions of This Regulatory Action is as follows:

With regard to sexual harassment, the proposed regulations would:

• Define the conduct constituting sexual harassment for Title IX purposes;

• Specify the conditions that activate a recipient’s obligation to respond to allegations of sexual

• harassment and impose a general standard for the sufficiency of a recipient’s response;

• Specify situations that require a recipient to initiate its grievance procedures;

• Establish procedural safeguards that must be incorporated into a recipient’s grievance procedures to ensure a fair and reliable factual determination when a recipient investigates and adjudicates a sexual harassment complaint;

• Clarify that in responding to any claim of sex discrimination under Title IX, recipients are not required to deprive an individual of rights that would be otherwise guaranteed under the U.S. Constitution;

• Prohibit the Department’s Office for Civil Rights (OCR) from requiring a recipient to pay money damages as a remedy for a violation of any Title IX regulation; and

• Eliminate the requirement that religious institutions submit a written statement to qualify for the Title IX religious exemption.

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