INSIGHT: Schools, Colleges, Universities Get New Title IX Sex Discrimination Rules

The global Covid-19 pandemic has forced educational institutions to address, daily, the challenge of meeting students’ instructional needs while protecting the health of their entire community, including faculty and staff. Into this fraught environment—about 18 months after Education Secretary Besty DeVos published the notice of proposed rulemaking on Nov. 29, 2018, generating over 124,000 comments—the Department of Education issued its long-awaited revisions to Title IX.

The critical questions educational entities from K-12 schools to institutions of higher education are now asking themselves are: “What do we need to do now, and how much will it cost?”

The Path Toward Compliance

Each school, college, and university has much to do and little time to do it. While the department acknowledged the impact of the Covid-19 pandemic in the introduction to its final rules, it did not hold them in abeyance, simply extending their effective date from 30 days after issuance to August 14. That gives schools less than 100 days to digest a litany of directives, comments and analysis in this 2,033-page document.

The final regulations direct institutions to provide a prompt and supportive response to reported violations of Title IX that is compliant and transparent. Institutions must have conspicuous policies that incorporate the final regulations and provide training to Title IX personnel tasked with implementation and to the entire school community.

For local education agencies (LEAs) and institutions of higher education (IHEs) that have little to no existing Title IX policy and procedures, the work ahead looms large. Even for those with comprehensive policies in place, the work of revising them may be daunting.

In a diverse educational system, the ability to ensure equity and consistency will require vigilant adherence to training that promotes awareness and education on preventing discrimination on the basis of sex. Training will require instruction by skilled, knowledgeable individuals with Title IX expertise.

Identifying people with existing expertise or the ability to quickly learn the large volume of information contained in the final regulations should be a top priority, and is an efficient way to start the compliance process. Call on those who know or have past experience to identify and train those who need to know.

The Directives Yield Changes at a Cost

The department’s summary of the changes can provide for schools a road map of what they need to outline in their policy and procedures. However, there are many other questions to answer and decisions to be made:

• What are the costs associated with implementing the final regulations?
• Who are the necessary Title IX personnel to implement policy and procedures?
• What is the need for board review and approval of a new institutional policy that is compliant?
• How do we effectively publish the new information to the school community?
• What standard of proof will each LEA or IHE use?
• How can we best cultivate and maintain all Title IX related data?

Students, parents and teachers will ask what the changes really mean for their schools, campuses, and daily learning environments. And while the department offered its own best estimate of the net financial cost, it is difficult to predict in a vacuum without accounting for the unique nuances and challenges educators and students face at each institution.

Addressing sexual assault or sexual harassment is emotional and difficult anywhere, but especially in schools. The department stated that it issued the new regulations because it wanted to: “[B]etter align the Department’s Title IX regulations with the text and purpose of Title IX, the U.S. Constitution, Supreme Court precedent and other case law, and to address the practical challenges facing students, employees, and recipients with respect to sexual harassment allegations in education programs and activities.”

It is the practical challenges students, employees, and schools encounter that will present the greatest difficulty in implementing the regulations.

The Goal: Eliminating Discrimination in Education

While Title IX and the formal grievance or informal resolution processes are intended to provide consistency and clarity, the final regulations outline a quasi-judicial administrative process that requires Title IX personnel and others such as decision-makers, to have extensive knowledge and continued training to preserve the department’s expectations.

Title IX remains necessary and significant federal legislation that has been woven into our education system. It will continue to be, as it has been historically, debated and litigated. The rule-making process could not account for every variable and situation, and unforeseen situations will arise that schools, colleges, and universities will need to address equitably and promptly.

The department believes it has written the right prescription to heal was has been described as a broken system. The purpose of Title IX is to preserve equity and eliminate discrimination in education. The need to ensure a safe and nurturing educational setting for students across the U.S. is paramount.

How to best achieve that goal is the task at hand and will remain a continual work in progress that now is incumbent upon schools to address through their enforcement of Title IX.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Kelley B. Hodge is a partner in Labor and Employment at Fox Rothschild LLP in the firm’s Philadelphia office and advises corporations, governmental entities on workplace harassment, discrimination, HR policies and risk compliance. She also advises, investigates and adjudicates Title IX and related matters at elementary, secondary and post-secondary institutions. She previously was the first Independent Title IX coordinator at the University of Virginia and was the 25^th District Attorney of Philadelphia.