The U.S. Department of Education’s Office for Civil Rights (OCR) released a “Fact Resource” on Oct. 4, 2022 reaffirming legal authority that Title IX protects both students and employees from discrimination based upon pregnancy and related conditions. While the new resource is broadly worded, the timing and presentation suggests that it is intended to signal an enforcement agenda targeted toward the protection of abortion rights for students and employees of educational institutions.
Announcing it as a commemoration of the 50th Anniversary of the enactment of Title IX (though anticipated for the past 18 months), the U.S. Department of Education (DOE) announced sweeping proposed amendments to the Title IX regulatory scheme that went into effect less than two years ago.
A recent finding by the U.S. Department of Education, Office for Civil Rights (OCR) that a college failed to accommodate a pregnant student is a pointed reminder of the obligation of colleges and universities to fully and carefully address accommodation requests from pregnant students.
In its Bostock v. Clayton County, Georgia ruling in June 2020, the U.S. Supreme Court ruled that the prohibition on “sex” discrimination under Title VII of the Civil Rights Act of 1964 encompasses discrimination on the basis of sexual orientation and/or gender identity. The Bostock ruling raised, but did not decide, the question of whether or not other federal sex discrimination laws, such as Title IX of the Education Amendments of 1972 and the Fair Housing Act, might also inherently prohibit LGBTQ+ discrimination. While the Bostock ruling applies only to Title VII claims, the Biden administration has announced that federal agencies will apply Bostock’s definition of “sex” to other federal civil rights laws. On the day he was inaugurated, Jan. 20, 2021, President Biden issued an executive order stating that federal sex discrimination laws besides Title VII – including Title IX and the Fair Housing Act – should be interpreted as prohibiting gender identity and sexual orientation discrimination. Subsequently, in June 2021, the U.S. Department of Education (ED) issued guidance that Title IX prohibits LGBTQ+ discrimination. In addition, in February 2021, the U.S. Department of Housing and Urban Development (HUD) announced that it would enforce the sex discrimination provisions of the Fair Housing Act as encompassing LGBTQ+ discrimination.
It has been over two months since the federal District Court’s July 28, 2021 decision in Victim Rights Law Center et al v. Cardona vacating the section of the United States Department of Education’s 2020 Title IX Final Rule that precluded postsecondary institutions from considering any statement made by a party or witness who does not submit to cross examination at a live adjudicatory hearing. Since the decision, institutions have sought to assess its impact on their processes for adjudicating allegations of sexual harassment, including the possibility of changes to eliminate this preclusion requirement from their procedures.
On May 6, 2020, the U.S. Department of Education (DOE) issued new Title IX regulations which imposed significant changes in the way in which colleges and universities must investigate and adjudicate sexual assault cases. The revised Title IX regulations have an effective date of August 14, 2020. On August 5, 2020, the DOE’s Office for Civil Rights (OCR) announced that the new regulations do not apply to institutional responses to sexual assaults that allegedly occurred prior to August 14 relying on the preamble to the regulations. Despite OCR’s seemingly clear position on retroactivity, a recent federal court case out of the Northern District of New York raises new questions as to whether and when the new Title IX rules must be applied retroactively to cases preceding their effective date.
The new Title IX rule, which became effective August 14, 2020, has garnered much attention in the higher education community over the summer. Many schools have scrambled to put new policies in place and to adequately resource and train staff for new responsibilities. For New York institutions, it is important to remember that schools also have requirements under the New York’s Enough is Enough law.
Importantly, Enough is Enough (New York Education Law Article 129-B) requires colleges and universities to submit annually aggregate data on reported incidents of sexual violence and their adjudication and handling.
In 2017, the New York State Board of Regents adopted regulations for reporting this information. A link to those regulations is provided below. Reports were due last year for calendar year 2018 so institutions should have familiarity with compiling and filing this Aggregate Data Report.
The October 1, 2020 deadline for calendar year 2019 reports is fast approaching. Any institution of higher education who has not yet submitted its 2019 Aggregate Data Report should attend to finalizing it and submitting the Report by the October 1 deadline. The Report should be submitted electronically.
If you have any questions about the information presented here, please contact any attorney in Bond’s Higher Education practice, or the attorney in the firm with whom you are regularly in contact.
Sexual assaults on college campuses are an issue to be taken seriously. Colleges and universities are well aware of their responsibility under Title IX to address and remediate sexual abuse; but with that responsibility comes an obligation to identify unsubstantiated claims. To fulfill these obligations, colleges have enacted comprehensive anti-harassment and sexual misconduct policies, conducted training and promulgated adjudicatory procedures that serve to provide protection and redress for victims of sexual assault, while ensuring that those accused of sexual assault are provided with fair protections from unsubstantiated allegations.
On May 6, the U.S. Department of Education (Department) released final regulations under Title IX. These regulations significantly change how higher education institutions, and to a lesser extent, school districts, must respond to sexual assault and harassment on campus.
On Wednesday, May 6, the U.S. Department of Education (USDOE) released final regulations under Title IX. These regulations come after the USDOE sifted through over 124,000 comments during the public comment period. The new regulations focus on how colleges and universities must investigate and adjudicate sexual misconduct cases under Title IX.
The ongoing COVID-19 pandemic has presented new challenges for college administrators as they evaluate whether to continue Title IX investigations through telephone and video conferences or postpone interviews and hearings until “stay at home” orders are withdrawn by state and local governments.
If Title IX investigations are postponed, victims of alleged sexual misconduct on campuses may sustain prolonged trauma. On the other hand, students accused of wrongdoing may be at a disadvantage if cases proceed through telephone or videoconferences. The mounting uncertainty created by the coronavirus pandemic poses unique scenarios for institutions committed to prompt and equitable resolution of complaints.
On November 16, 2018, more than a year after rescinding Obama administration era Title IX subregulatory guidance on colleges’ and universities’ obligations under Title IX, the United States Department of Education published its long-awaited proposed Title IX regulations. The proposed regulations will likely be viewed by institutions as a mixed bag. On the one hand, the regulations promise a narrower scope of enforcement and greater deference to institutional decisions. On the other hand, notwithstanding Secretary of Education Betsy DeVos’s assertions that the prior administration had inappropriately imposed highly technical and overly-stringent compliance obligations on colleges and universities, the proposed regulations would legislate significantly in this area, mandating detailed new processes, many of which are arguably beyond the Department’s discretion to require and some of which may create conflicts with the requirements of state laws such as New York Education Law Article 129-B. The following are some of the most noteworthy provisions.
