Almost six months ago the Biden administration released its proposed revisions to the Title IX regulations for public comment. Looking to reverse the changes made by the Trump administration, the proposed amendments broaden the definition of sexual harassment, eliminate the requirements for a live-hearing and cross-examination and allow for a single individual to both investigate sexual misconduct complaints and determine guilt or innocence .
The US Department of Education has been collecting and reviewing public comments on the proposed amendments prior to the issuance of the final regulations. For context, the previous Title IX rulemaking process, which occurred during the Trump administration, took almost 18 months to complete. During that process almost 124,000 comments were submitted during the 60-day comment period. The current public comment period ended September 12, 2022 and over 200,000 comments were received by the Education Department. Now that the public comment period has closed, the Education Department will begin reviewing comments and drafting final changes. There has been no indication of a timeline for the release of the final rule.
Until there is a final rule, the current Title IX regulations remain in effect. This means that institutions must continue to comply with the current Title IX rules and an independent investigation is required under those rules. As there continues to be scrutiny on educational institutions for their handling of Title IX complaints, administrators within school settings should be focused on ensuring quality investigations and procedures. Hiring an experienced, outside Title IX investigator not only protects the school and builds trust in the process, but can also shed light on issues that often need an independent perspective.
Schools should continue to ensure Title IX compliance according to the language of the 2020 regulations.
©2022 Strassburger McKenna Gutnick & GefskyNational Law Review, Volume XII, Number 354