Title IX Live: A Conversation with Suzanne Goldberg, Deputy Assistant Secretary for Strategic Operations and Outreach and former Acting Assistant Secretary for Office for Civil Rights
Passed in 1972, Title IX is a law enacted to ensure the following: “No person in the United States shall, based on sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any education program or activity receiving Federal financial assistance.”
Rather than follow the rulemaking procedure under the Administrative Procedure Act (APA), in April 2011, the Office for Civil Rights (OCR) released a “Dear Colleague Letter” (DCL) stating OCR’s view of the obligations of school districts (K-12), colleges, and universities, in their implementation of Title IX, to provide all students with an education environment free from discrimination. This “significant guidance document” stated that acts of sexual assault are a form of sexual harassment and, as such, are a form of sex discrimination prohibited by Title IX and enforceable by schools. In addition, the DCL detailed OCR’s view of the specific requirements of how colleges and universities receiving federal funds must respond to allegations of sexual assault. In 2014, OCR released a Q&A on Title IX and Sexual Violence to offer additional views of OCR on schools’ obligations.
In the years following the release of the 2011 DCL, many hundreds of lawsuits (possibly over 1000) were filed against colleges and universities by students claiming the processes used by their schools to respond to and adjudicate cases of sexual assault were unfair and lacked due process protections for both the accuser and accused parties.
In September 2017, OCR rescinded the 2011 DCL and related 2014 Q&A and announced plans to release a new regulation in accordance with the Administrative Procedure Act (APA). In November 2018, as required under the APA, OCR published in the Federal Register a proposed Title IX regulation to replace the rescinded documents and formally invited the public to comment via a Notice of Proposed Rulemaking (NPRM).
By January 2019, when OCR closed the 60-day public comment period, it had received over 120,000 public comments. After considering the numerous public comments, OCR finalized the new regulation in May 2020, and on August 14, 2020, the new Title IX regulation went into effect. The new regulation substantially enhanced due process protections for accuser and accused parties. Five separate litigations attacked the new regulation, but except for one subparagraph in the regulation, all of the regulation remains in place and in force.
On March 8, 2021, President Biden issued an Executive Order (EO) directing OCR to review the existing regulations. The position of the Biden Administration is that the existing regulation unfairly favors accused students. OCR announced in April 2021 an immediate action to carry out the requirements of the EO, including a comprehensive review of the Title IX regulation.
Unlike the informal guidance letters issued in 2011 and 2014, the 2020 regulation went through a formal rulemaking process, which disallows simple rescission of the existing regulation by the Biden Administration. To begin the comprehensive review in anticipation of amendments to the current regulation, OCR held a virtual public hearing from June 7 to June 11, 2021 to gather information for improving enforcement of Title IX. A transcript of these public comments was released in July 2021.
In accordance with the APA, on December 10, 2021, the Department of Education issued a statement that the Department anticipates proposing amendments to the Title IX regulation with an NPRM by April 2022 to give the public an opportunity to comment on the proposed amendments.
The Title IX regulation governs all school districts (K-12), colleges, and universities that receive Federal funding. The regulation includes many definitions such as what constitutes sexual harassment, what defines a school’s education program or activity, and how a school must respond to reports of sexual harassment. Step-by-step policies and procedures mandate the resolution process of both formal and informal complaints.
There is fierce debate regarding the definition of sexual harassment, how schools should respond to complaints of sexual harassment that occur outside of their education program or activity, and what procedures should be mandated to allow for a fair resolution with due process protections for all parties involved in allegations of sexual harassment. Hundreds of court decisions have now addressed concerns about whether schools have been providing fair procedures and any new regulation will need to conform to the standards set by the courts. Trial courts and Courts of Appeal throughout the nation have opined on their interpretation on the Title IX regulation and related requirements for schools.
The NPRM allows individuals to voice concerns and to propose improvements to the draft that OCR will circulate. You can learn more about how to participate in the administrative process by joining our conversation with Suzanne Goldberg on Wednesday, January 19, 2022, at 1:00 p.m. Eastern Time.
The Administrative Procedure Act (APA): Enacted June 11, 1946, the APA governs how administrative agencies of the United States federal government may propose and establish regulations and grants.
The Federal Register: The official journal of the United States federal government that contains government agency rules, proposed rules, and public notices.
A Notice of Proposed Rulemaking (NPRM): A public notice issued by law when an independent agency of the U.S. government wishes to add, remove, or change a rule or regulation as part of the rulemaking process. The notice is an integral part of U.S. administrative law, which facilitates government by typically creating a process of taking of public comment.
The Office for Civil Rights (OCR): An administrative agency within the U.S. Department of Education (ED). In May 1980, the ED began oversight of Title IX through OCR.
