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Title IX Regulations Update: How it may affects you

On June 23, 2022, the 50th anniversary of Title IX, the U.S. Department of Education began the process of revising the Title IX regulations that were adopted in 2020.* The move followed a series of hearings and listening sessions during which school and districts told the Department that “they have found the current regulations to be onerous, protracted and unworkable in practice.” Many of our clients, especially K-12 school districts, have been telling us the same thing. The good news is that the proposed revisions focus more clearly on the obligations of schools at all levels to end discrimination, including sex-based harassment, in their programs, to prevent its recurrence, and to remedy its effects. Once the new regulations are implemented, they should eliminate many of the procedural barriers to swift action and give schools more discretion to fulfill their obligations promptly and effectively.

Here are some of changes the Department is proposing:

  • The definition of sexual harassment would include conduct that is severe or pervasive enough to create a hostile environment – comparable to California state law and the Office for Civil Right’s prior standard. This should eliminate the need to have separate procedures for allegations of conduct that would be sexual harassment under state law and district policy, but not under Title IX
  • A complaint could be initiated orally or in writing by a complainant or their representative asking that the grievance process begin. The Title IX coordinator could also begin the grievance process if he/she believes it is necessary to prevent or respond to sex discrimination
  • An informal resolution process could begin even without a complaint, as long as both parties agreed to participate.
  • The decision maker could be the same person as the Title IX Coordinator or investigator. While the current procedures require the participation of up to four trained administrators in the grievance process (the Title IX coordinator, and investigator, a decision-maker, and an appeal decision-maker) the new regulations would not require this strict separation of functions.
  • At the K-12 level, the process would be significantly streamlined, making a prompt and effective response to sex discrimination much more feasible:
    • The extensive paperwork required in the current regulations would be largely eliminated. Districts would need to inform the parties of the allegations, provide them with a description of the relevant evidence they collected, and notify them of the outcome of the complaint, but could do so orally or in writing.  They would no longer need to provide copies of evidence, a written investigation report, or a written decision with an analysis of the evidence.
    • K-12 districts would no longer be required to offer an appeal process except to the dismissal of a complaint.
  • At the post-secondary level, more extensive written notice would be required, and the parties would be entitled to an investigation report or access to copies of the evidence, as well as an appeal procedure. Significantly, however, the proposed regulations eliminate the requirement of a live hearing.
  • All staff would need to be trained on sex discrimination and their obligation to report it

Under both the current regulations and the proposed changes, schools may not discipline a student until the investigation process is completed.  But under the proposed regulations, temporary non-disciplinary supportive measures would be allowed while the investigation is in progress, even if they impose a burden on the respondent, if they are necessary to protect the safety of the complainant or the school, or to deter the respondent from engaging in sexual harassment.  In addition, a respondent could be removed from a program or activity if the school or district conducts an individual review and finds that he/she presents an immediate and serious threat to the safety (no longer limited to physical safety) of student, employees, or other persons.

The proposed regulations would also make it clear that sex-based harassment includes harassment based on sex stereotypes, sex characteristics, sexual orientation, and gender identify.  They would also expand and update protections for pregnant students.  Separate regulations will address athletics and will likely address the question of student athletes’ participation on teams that are consistent with their gender identity.

What’s next?

The proposed regulations have been submitted for publication in the Federal Register.  Once they are published, the public has 60 days to comment on them.  The Department of Education must then review the comments and respond to them before the regulations can be finalized.  For context, the current regulations took about eighteen months to finalize, and took effect three months after that.  Until then, the 2020 regulations are still in force.  We will keep you updated!

If you have any questions about the proposed regulations or the current regulations, please contact the GHS LLP lawyer with whom you usually work, or contact the author, Katherine Riggs at +1 (619) 564-8400 or at kriggs@ghslaw.com.

* Click here to review our Note on the May 2020 changes.

Garcia Hernández Sawhney, LLP provides this information as a service to our clients and other friends for resource and educational purposes only. The contents herein are not intended as legal advice, should not be construed or relied upon as such and should not be construed to create a lawyer-client relationship. Furthermore, the contents constitute expression of opinion of the authors or transmit information from other sources, as of their date only. Readers should not act upon this information without seeking advice from their legal or other professional advisers. Attorney Advertising — Garcia Hernández Sawhney, LLP, San Diego, California 92101. +1 619 564 8400. © Garcia Hernández Sawhney, LLP

Posted By:
Katherine Riggs

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On June 23, 2022, the 50th anniversary of Title IX, the U.S. Department of Education began the process of revising the Title IX regulations that were adopted in 2020.* The move followed a series of hearings and listening sessions during which school and districts told the Department that “they have found the current regulations to be onerous, protracted and unworkable in practice.” Many of our clients, especially K-12 school districts, have been telling us the same thing. The good news is that the proposed revisions focus more clearly on the obligations of schools at all levels to end discrimination, including sex-based harassment, in their programs, to prevent its recurrence, and to remedy its effects. Once the new regulations are implemented, they should eliminate many of the procedural barriers to swift action and give schools more discretion to fulfill their obligations promptly and effectively.

Here are some of changes the Department is proposing:

  • The definition of sexual harassment would include conduct that is severe or pervasive enough to create a hostile environment – comparable to California state law and the Office for Civil Right’s prior standard. This should eliminate the need to have separate procedures for allegations of conduct that would be sexual harassment under state law and district policy, but not under Title IX
  • A complaint could be initiated orally or in writing by a complainant or their representative asking that the grievance process begin. The Title IX coordinator could also begin the grievance process if he/she believes it is necessary to prevent or respond to sex discrimination
  • An informal resolution process could begin even without a complaint, as long as both parties agreed to participate.
  • The decision maker could be the same person as the Title IX Coordinator or investigator. While the current procedures require the participation of up to four trained administrators in the grievance process (the Title IX coordinator, and investigator, a decision-maker, and an appeal decision-maker) the new regulations would not require this strict separation of functions.
  • At the K-12 level, the process would be significantly streamlined, making a prompt and effective response to sex discrimination much more feasible:
    • The extensive paperwork required in the current regulations would be largely eliminated. Districts would need to inform the parties of the allegations, provide them with a description of the relevant evidence they collected, and notify them of the outcome of the complaint, but could do so orally or in writing.  They would no longer need to provide copies of evidence, a written investigation report, or a written decision with an analysis of the evidence.
    • K-12 districts would no longer be required to offer an appeal process except to the dismissal of a complaint.
  • At the post-secondary level, more extensive written notice would be required, and the parties would be entitled to an investigation report or access to copies of the evidence, as well as an appeal procedure. Significantly, however, the proposed regulations eliminate the requirement of a live hearing.
  • All staff would need to be trained on sex discrimination and their obligation to report it

Under both the current regulations and the proposed changes, schools may not discipline a student until the investigation process is completed.  But under the proposed regulations, temporary non-disciplinary supportive measures would be allowed while the investigation is in progress, even if they impose a burden on the respondent, if they are necessary to protect the safety of the complainant or the school, or to deter the respondent from engaging in sexual harassment.  In addition, a respondent could be removed from a program or activity if the school or district conducts an individual review and finds that he/she presents an immediate and serious threat to the safety (no longer limited to physical safety) of student, employees, or other persons.

The proposed regulations would also make it clear that sex-based harassment includes harassment based on sex stereotypes, sex characteristics, sexual orientation, and gender identify.  They would also expand and update protections for pregnant students.  Separate regulations will address athletics and will likely address the question of student athletes’ participation on teams that are consistent with their gender identity.

What’s next?

The proposed regulations have been submitted for publication in the Federal Register.  Once they are published, the public has 60 days to comment on them.  The Department of Education must then review the comments and respond to them before the regulations can be finalized.  For context, the current regulations took about eighteen months to finalize, and took effect three months after that.  Until then, the 2020 regulations are still in force.  We will keep you updated!

If you have any questions about the proposed regulations or the current regulations, please contact the GHS LLP lawyer with whom you usually work, or contact the author, Katherine Riggs at +1 (619) 564-8400 or at kriggs@ghslaw.com.

* Click here to review our Note on the May 2020 changes.

Garcia Hernández Sawhney, LLP provides this information as a service to our clients and other friends for resource and educational purposes only. The contents herein are not intended as legal advice, should not be construed or relied upon as such and should not be construed to create a lawyer-client relationship. Furthermore, the contents constitute expression of opinion of the authors or transmit information from other sources, as of their date only. Readers should not act upon this information without seeking advice from their legal or other professional advisers. Attorney Advertising — Garcia Hernández Sawhney, LLP, San Diego, California 92101. +1 619 564 8400. © Garcia Hernández Sawhney, LLP

Posted By:
Katherine Riggs
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Title IX Regulations Update: How it may affects you

On June 23, 2022, the 50th anniversary of Title IX, the U.S. Department of Education began the process of revising the Title IX regulations that were adopted in 2020.* The move followed a series of hearings and listening sessions during which school and districts told the Department that “they have found the current regulations to be onerous, protracted and unworkable in practice.” Many of our clients, especially K-12 school districts, have been telling us the same thing. The good news is that the proposed revisions focus more clearly on the obligations of schools at all levels to end discrimination, including sex-based harassment, in their programs, to prevent its recurrence, and to remedy its effects. Once the new regulations are implemented, they should eliminate many of the procedural barriers to swift action and give schools more discretion to fulfill their obligations promptly and effectively.

Here are some of changes the Department is proposing:

  • The definition of sexual harassment would include conduct that is severe or pervasive enough to create a hostile environment – comparable to California state law and the Office for Civil Right’s prior standard. This should eliminate the need to have separate procedures for allegations of conduct that would be sexual harassment under state law and district policy, but not under Title IX
  • A complaint could be initiated orally or in writing by a complainant or their representative asking that the grievance process begin. The Title IX coordinator could also begin the grievance process if he/she believes it is necessary to prevent or respond to sex discrimination
  • An informal resolution process could begin even without a complaint, as long as both parties agreed to participate.
  • The decision maker could be the same person as the Title IX Coordinator or investigator. While the current procedures require the participation of up to four trained administrators in the grievance process (the Title IX coordinator, and investigator, a decision-maker, and an appeal decision-maker) the new regulations would not require this strict separation of functions.
  • At the K-12 level, the process would be significantly streamlined, making a prompt and effective response to sex discrimination much more feasible:
    • The extensive paperwork required in the current regulations would be largely eliminated. Districts would need to inform the parties of the allegations, provide them with a description of the relevant evidence they collected, and notify them of the outcome of the complaint, but could do so orally or in writing.  They would no longer need to provide copies of evidence, a written investigation report, or a written decision with an analysis of the evidence.
    • K-12 districts would no longer be required to offer an appeal process except to the dismissal of a complaint.
  • At the post-secondary level, more extensive written notice would be required, and the parties would be entitled to an investigation report or access to copies of the evidence, as well as an appeal procedure. Significantly, however, the proposed regulations eliminate the requirement of a live hearing.
  • All staff would need to be trained on sex discrimination and their obligation to report it

Under both the current regulations and the proposed changes, schools may not discipline a student until the investigation process is completed.  But under the proposed regulations, temporary non-disciplinary supportive measures would be allowed while the investigation is in progress, even if they impose a burden on the respondent, if they are necessary to protect the safety of the complainant or the school, or to deter the respondent from engaging in sexual harassment.  In addition, a respondent could be removed from a program or activity if the school or district conducts an individual review and finds that he/she presents an immediate and serious threat to the safety (no longer limited to physical safety) of student, employees, or other persons.

The proposed regulations would also make it clear that sex-based harassment includes harassment based on sex stereotypes, sex characteristics, sexual orientation, and gender identify.  They would also expand and update protections for pregnant students.  Separate regulations will address athletics and will likely address the question of student athletes’ participation on teams that are consistent with their gender identity.

What’s next?

The proposed regulations have been submitted for publication in the Federal Register.  Once they are published, the public has 60 days to comment on them.  The Department of Education must then review the comments and respond to them before the regulations can be finalized.  For context, the current regulations took about eighteen months to finalize, and took effect three months after that.  Until then, the 2020 regulations are still in force.  We will keep you updated!

If you have any questions about the proposed regulations or the current regulations, please contact the GHS LLP lawyer with whom you usually work, or contact the author, Katherine Riggs at +1 (619) 564-8400 or at kriggs@ghslaw.com.

* Click here to review our Note on the May 2020 changes.

Garcia Hernández Sawhney, LLP provides this information as a service to our clients and other friends for resource and educational purposes only. The contents herein are not intended as legal advice, should not be construed or relied upon as such and should not be construed to create a lawyer-client relationship. Furthermore, the contents constitute expression of opinion of the authors or transmit information from other sources, as of their date only. Readers should not act upon this information without seeking advice from their legal or other professional advisers. Attorney Advertising — Garcia Hernández Sawhney, LLP, San Diego, California 92101. +1 619 564 8400. © Garcia Hernández Sawhney, LLP

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