Top Five Things Superintendents Should Know About the Proposed Title IX Rules

By Jackie Gharapour Wernz, Partner, Thompson & Horton LLP* 

On the Fiftieth anniversary of Title IX of the Education Amendments of 1972, the U.S. Department of Education released proposed amendments to the Title IX regulations. The rules are just a proposal—don’t go throwing out your current copy of the 2020 regs just yet! The earliest they will become effective would be in time for the 2023–2024 school year. When they take effect, they likely will include some changes from the proposed version.     

However, because the final rules likely will be similar to those proposed, it makes sense to familiarize yourself with the proposed rules now. If you haven’t already, watch the Thompson & Horton free on-demand webinar, Title IX Double Take: A Side-by-Side Comparison of the Current and Proposed Title IX Rules, which provides a fast-paced and thorough side-by-side comparison between the current and proposed rules in a side-by-side format.  

1. Required Grievance Procedures for All Complaints of “Sex Discrimination”  

The proposed rules require a somewhat less prescriptive set of grievance procedures than the current rules. But the procedures would be much more broadly applicable.  Specifically, the current rules require the grievance process to be used only for “sexual harassment” complaints. The proposed rules, however, would require schools to use the grievance procedures outlined in the rules for any complaint of sex discrimination. That includes sexual harassment, but also things like: 

• Sex-based harassment 
• Different treatment and different impact based on sex (such as in single-sex programs or discipline) 
• Failures to accommodate based on sex (including based on pregnancy and LGBTQIA status), and 
• Retaliation.  

2. On the Hook for Off-Campus Conduct?  

Another broadening would occur under the new regulations regarding alleged sex-based discrimination that occurs outside of the United States or off-campus and outside the educational program or activity. The new rules would make clear that they would applyif such conduct contributes to an alleged hostile environment back home in the school’s educational program or activity. It is unclear whether this new language will require a school to actually investigate the behavior that occurred outside the U.S. or off-campus. But many are suggesting that is the direction the Department of Education may be headed. Such an interpretation would be a significant change for schools, which currently defer to law enforcement for off-campus sexual misconduct in most cases. This is an area where schools should work to make their voices heard during the comment process. 

3. Goodbye “SPOO,” Hello “SORP” 

Under the current Title IX regulations, if conduct is not part of the Title IX Big Five (employee quid pro quo, sexual assault, domestic violence, dating violence, and stalking), it can only be “sexual harassment” that must be addressed using the Title IX grievance process if it is unwelcome conduct based on sex that is “so severe, pervasive, and objectively offensive” that it “effectively denies” equal access to the educational institution’s education program or activity. Such conduct is commonly referred to as “hostile environment sexual harassment,” and the Title IX “hostile environment” standard is sometimes shortened to “SPOO” for “severe, pervasive, and objectively offensive.” Other “lower level” types of sexual harassment that is not “SPOO” can be addressed using another process, such as a school’s code of conduct for student discipline.  

The proposed rules would apply the Title IX process to almost all of those “low level” types of sexual misconduct, sweeping many more complaints under the Title IX grievance process. Conduct would create a “hostile environment” subject to the Title IX rules if it is unwelcome conduct based on sex that is “sufficiently severe or pervasive” that, “based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits” a person’s “ability to participate in or benefit from” the educational institution’s education program or activity. Many are already referring to this standard as “SORP” for “severe or pervasive.”  

The change from “SPOO” to “SORP” would be big. It would take us back to a standard more like the one used before the 2020 Title IX rules. In total, the first three changes identified here—and other “broadening” changes in the proposed rules—would mean that many more incidents of misconduct would fall under the Title IX process than under the current rules.    

4. Procedural Changes 

With the broadening of the complaints that will fall under the Title IX rules, superintendents should be understandably worried about applying the incredibly complicated process from the 2020 Title IX rules to all these new complaints. The current rules include lengthy, cumbersome processes unlike any other type of grievance or complaint in the education context. 

The good news is that the processes in the proposed Title IX rules are much less prescriptive than those in the current rules, especially for K-12 schools. Here are some key takeaways from the K-12 process in the proposed rules:  

• Fewer Time-Consuming Reviews in the Investigation. One of the most cumbersome parts of the investigation process in the current rules is that the investigator must allow the parties two separate ten-day review periods during the investigation process. Parties must be allowed to review and respond to the “directly related evidence” before the investigation report is finalized and then to the investigation report before any decision is made. Under the proposed rules, those steps would be gone for K-12 complaints. All that would be required would be to “provide each party with a description of relevant/permissible evidence with a reasonable opportunity to respond.”  
• The Single Investigator/Decisionmaker Model is Back. There are also significant proposed changes to decision-making. The proposed rules would allow educational institutions to use the “single investigator/decisionmaker” model for Title IX cases. That means the proposed rules would jettison the current rules’ requirement that the decisionmaker be someone other than the investigator and Title IX Coordinator. Indeed, under the proposed rules, the decisionmaker can be Title IX Coordinator, the investigator, or all three roles. 
• Less is More for the Written Determination. The requirements for what must be in the written determinationin the Title IX decision-making process would also be loosened significantly for most cases under the proposed rules. In K-12 cases, the proposed regulations would require the recipient only to notify the parties of the complaint’s outcome, including whether sex discrimination occurred under Title IX and the procedures and permissible bases for the complainant and respondent to appeal. That’s a far cry from the current “written determination on the merits,” which prescribes precise information that must be included in an incredibly lengthy document.  
• Barely Any Appeals. Finally, whereas the 2020 Title IX rules require appeals to be offered for several reasons, the proposed rules require appeals only for dismissals for K-12, and do not identify any required bases for K-12 appeals. However, the decisionmaker in the appeal must continue to be different from the initial decisionmaker. 

5. Application to LGBTQI+ Discrimination  

The proposed rules would be the first time Title IX would explicitly extend to discrimination based on sexual orientation and gender identity, aligning Title IX with the U.S. Supreme Court’s landmark decision in Bostock v. Clayton County, Georgia. Bostock held that Title IX’s sister law, Title VII of the Civil Rights Act of 1964, prohibits discrimination because of sexual orientation or gender identity. 

While the Biden administration has said unofficially many times that it believes Title IX requires equal access for transgender students, including to sports teams, it will not weigh in officially on the question under these proposed rules. Instead, it will engage in separate rulemaking in the future to address #TitleIX’s application to athletics as early as this fall.  

These are a few of the many, many changes to the Title IX regulations from the 2022 Title IX proposed rules. Superintendents should use this opportunity to weigh in on the rules before they become law; OCR will no longer be listening once the rules are finalized. The comment period for the rules will be open for 60 days after the proposed rules are published in the Federal Register, which has still not happened yet.  

*Also authored by Emmy Edwards, a first-year law student at Southern Methodist University, currently a legal intern at Thompson & Horton LLP. You can reach the authors of this post at jwernz@thlaw.com.