Unpacking the New Proposed Title IX Rule: Five Key Takeaways

Today, on Title IX’s 50th birthday, the U.S. Department of Education released for public comment proposed changes to the Title IX regulations. Our Investigations & Resolutions team is still unpacking the 701-page notice of proposed rulemaking and looks forward to analyzing the proposed changes with our clients in the coming weeks. In the meantime, here are five things that caught our eye in the proposed regulations:

1. Institutions have more discretion to respond to reports of sexual misconduct. Rather than a one-size-fits-all mandated resolution process, the proposed regulations return many decisions to schools, allowing administrators to propose policies and procedures to fit their communities.
2. There’s a new proposed definition of sexual harassment. The Title VII standard now applies, and hostile environment harassment is defined as “unwelcome sex-based conduct 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 recipient’s education program or activity.”
3. The single decisionmaker model is permitted again…as long as the decisionmaker is free of bias.
4. Hearings are not required. If hearings are permitted, party advisors may ask questions of witnesses during the hearing. 
5. Parties must respond to questions regarding credibility. If a party fails to respond to credibility questions, in reaching a determination regarding responsibility, the decisionmaker may not rely on a statement of that party that supports the party’s position.