In this post, we continue our recap of recent Title IX-related news that you might have missed and noteworthy items to keep an eye on in 2023 (you can read updates from our last post here). Below, we cover recent federal government actions and proposals to bolster protections for students against sexual violence.
Final Title IX regulations slated to be released in May
On January 4, 2023, the Department of Education released a policy roadmap outlining its regulatory agenda for the year, which lists the publication date for the final Title IX regulations as May 2023. However, an agency spokesperson has since stated that the May timeline is “suggested,” so it is unlikely that the regulations will be published before the end of the 2022-2023 academic year.
The roadmap also suggests the Department of Education will issue final Title IX rulemaking specific to discrimination on the basis of sex in athletics. However, the roadmap does not provide a date of the anticipated rulemaking.
We will be monitoring the release of the new regulations and provide you with timely updates.
Interagency Task Force on Sexual Violence releases its first report
The 2022 reauthorization of VAWA (which we reported on here) created the Interagency Task Force on Sexual Violence in Education, a joint task force under the Departments of Education, Justice, and Health and Human Services. The task force is charged with developing recommendations for the Biden administration and for schools and colleges to increase efforts to prevent sexual and dating violence, support survivors, and create culturally responsive training and education for students and staff.
On November 30, 2022, the task force released their first report to Congress on sexual violence in education. This inaugural report addresses gaps and challenges in Title IX investigations and in the enforcement, recruitment and retention of Department of Education Office for Civil Rights (OCR) and Clery investigators; outreach and training for law enforcement and educational institutions; and best practices in the areas of campus sexual violence prevention, investigation and response. The report warned that OCR’s overall staffing level has declined significantly over the years as the volume of Title IX complaints to OCR has grown exponentially. The report indicated that the number of Title IX complaints to OCR dipped in FY20 and FY21 during the COVID pandemic but has since bounced back to pre-pandemic levels—OCR received 759 Title IX-related complaints in FY 2022, compared to 444 in FY 2021.
Notably for higher education institutions, the report indicated that OCR is currently working on new Clery Act guidance following the rescission of the Clery Handbook in 2020, and that the Department of Education is developing a standardized campus climate survey tool to be used by higher education institutions, pursuant to the 2022 VAWA Reauthorization. The report, however, did not provide a timeline for when these tasks would be completed.
A full copy of the task force report can be found here.
Senators propose legislation to shore up Title IX protections for students
On December 1, 2022, Democratic Senators Bob Casey and Mazie Hirono introduced a bill in Senate that would strengthen existing Title IX protections for students from sexual harassment. The proposed legislation, called the Students’ Access to Freedom and Education Rights Act (“SAFER Act”), would amend Title IX, Title VI, Section 504, and the Age Discrimination Act to bring Title IX’s definitions of harassment and standards for private harassment lawsuits more in line with other civil rights laws, including by broadening the definition of sexual harassment and lowering the burden on a plaintiff who wishes to bring forward a complaint. In addition, the SAFER Act aims to:
- Strengthen protections against harassment based on sex, including harassment based on sexual orientation, gender identity, sex characteristics, pregnancy, childbirth and related conditions, sex stereotypes, and intersectional forms of harassment;
- Require more robust institutional supports for student complainants;
- Require schools to act reasonably to address harassment and prevent its occurrence (a higher standard than “deliberately indifferent”);
- Invest heavily in training for K-12 Title IX Coordinators and staff on preventing, recognizing, and responding to sexual harassment, sexual assault, and grooming behaviors;
- Require the Department of Education to create a campus climate survey for K-12 students analogous to the survey currently being developed under VAWA for higher education institutions (see above); and
- Require religious schools to formally request religious exemptions under Title IX and make the requests for exemptions available to the public.
We will be tracking the bill closely and keep you posted with updates, including on any potential impact on your Title IX policy and procedures.
As always, feel free to reach out to your Franczek attorney or any member of Franczek’s Title IX team if you have any questions.
*Also authored by Jenny Lee, a third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.