Title IX Status: Q&A

• Title IX Coordinator Duties: Highlighting new and updated responsibilities for Title IX coordinators, including training requirements, monitoring for barriers to reporting sex discrimination, steps to take when notified of a report, and actions to support pregnant students.
• Nondiscrimination Based on Pregnancy or Related Conditions & Parental Family, or Marital Status: This guide provides clarity on the rules against discrimination, including providing reasonable modifications and access to lactation spaces.

As of August 28, 2024, enforcement of these regulations is paused in several states (Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming) due to federal court orders.

• Mandated Response: Schools must act promptly and effectively when someone reports an issue under Title IX.
• Support for Pregnant and Parenting Students: Title IX protects students who are pregnant or parenting by ensuring they receive support, such as schedule changes and lactation accommodations.
• Training Requirements: Schools must train all employees on how to handle all forms of sex-based discrimination issues covered by Title IX. This ensures that all employees understand the provisions of Title IX.
• Exceptions to Title IX Applicability: Some institutions don’t have to follow all Title IX rules. This includes women’s colleges, fraternities, and some religious schools if following the rules would go against their beliefs.
• Protection from Retaliation: Students and employees can’t be punished for reporting issues or participating in the Title IX process, and peers-to-peer retaliation.
• Fair Processes and Clear Obligations: Schools must use a fair process with a trained and unbiased person making decisions based on all relevant evidence. They must also have a clear and fair way to assess credibility if needed. For example, If there’s a dispute over whether a student’s account of an incident is believable, the school must have a clear, fair method for evaluating this, like interviewing witnesses or reviewing evidence.
• Responsibilities of Title IX Coordinators: Title IX Coordinators must address complaints, apply sanctions when appropriate, and take steps to prevent future discrimination. Live hearings and single-investigator models are no longer mandated.
• Coverage of Harassment: Title IX now covers all kinds of harassment, including those based on sex and sex stereotypes.
• Employee Actions: All school employees must take some form of appropriate actions if they encounter issues related to Title IX.

• Weakens enforcement against sexual harassment – By reversing the new Title IX rules, the resolution would dilute the mechanisms that hold educational institutions accountable for addressing sexual harassment and assault. This would create a less safe environment for survivors, potentially discouraging them from reporting incidents and seeking justice.
• Reduces support for marginalized communities – These resolutions aims to strip away protections that have been strengthened to support marginalized students, including students of color, students with disabilities, and survivors of sexual violence. This threatens to widen the equity gap in education and reduce the resources available to these students for addressing discrimination and violence.
• Undermines protections for LGBTQIA+ students – The proposed resolutions seek to roll back recent Title IX protections that explicitly safeguard LGBTQIA+ students from discrimination. This threatens to leave these students vulnerable to harassment and unequal treatment in educational environments.

We joined 110 gender justice, LGBTQIA+ rights, civil rights, and students’ rights organizations urging Members of Congress to oppose these harmful resolutions.

On May 25, 2023, the White House released the first-ever U.S. National Plan to End Gender-Based Violence: Strategies for Action. The plan was developed by the Gender Policy Council as a response to President Biden’s Executive Order in March 2021. Acknowledging gender-based violence as a public safety and public health crisis that affects all communities regardless, but with respect to many intersecting identities, the plan focuses on seven strategic pillars: 

1. Prevention
2. Support, Healing, Safety, and Well-being
3. Economic Security and Housing Stability
4. Online Safety
5. Legal and Justice Systems
6. Emergency Preparedness and Crisis Response
7. Research and Data

Additionally, it highlights the current policy priorities and legislation including Violence Against Women Act (VAWA), VOCA Fix to Sustain the Crime Victims Fund Act of 2021 (VOCA), and Family Violence Prevention and Services Act (FVPSA). The plan also highlights federally funded grants, programs, federal data collections, and technical assistance and training resources under each pillar section. All-in-all, it aims to strengthen and advance a “whole-of-government and intersectional approach to preventing and addressing GBV in the United States.”  The priorities in the plan align with the U.S. Strategy to Prevent and Respond to Gender-Based Violence Globally. To read more here is the link.

“Students should not have to wait for their civil rights to be upheld or for an equitable education that is free from violence; yet, over and over again, student survivors face exhausting and offensive delays. Student survivors deserve a new Title IX now, and in solidarity with student survivors, especially those from historically marginalized communities, we demand that the Biden administration uphold its promise and publish updated Title IX regulations by May.” -Kenyora Parham, MSW, Executive Director, End Rape On Campus.

1. Allowing the implementation of universal mandatory reporting will undoubtedly cause harm, perpetuate retraumatization, and increase pre-existing distrust in campus administrators, staff, faculty, and other designated authorities.

• We recommend “instead of implementing universal mandatory reporting, the rule should designate both confidential resources and resources/employees that are mandated to report. The delineation of these two groups must be explicit and students must be repeatedly informed which resources are confidential. Confidential resources should be truly confidential and exempt from Clery reporting requirements. Survivors deserve the ability to share their stories, learn about available resources, and make choices about their own lives without losing control of what happens to them next. When survivors of interpersonal violence work with confidential advocates, they are more likely to formally report, less likely to be treated negatively, and less likely to experience additional distress and retraumatization. Universal mandatory reporting eliminates the possibility of the important process of survivors exercising agency and regaining control.”

• We recommend that “with a clear rule about the length of time that investigations should take, survivors could check in with Title IX coordinators, investigators, and hearing officers and have a rough timeline to use to help get information about their case. Yet, without a clear timeframe, cases can be drawn out indefinitely, affecting all parties involved. This creates a situation where schools can regularly tell survivors that they are “working” on the case or that the case needs to be delayed. Survivors have no mechanism within the Title IX guidelines to hold their institutions accountable to conduct a timely investigation. Cases could be delayed until complainants or respondents graduate, transfer to another institution, or involuntarily withdraw from a class or drop out completely. This will effectively give schools an easy way to do nothing and provide no remedy for a complainant while still saying that action is underway, shielding schools from legal liability at great risk to complainants’ education.”

• “Seeing that the current administration’s proposed regulations make no reference to possible considerations for change, we wish to reassert and underscore the importance of reinstating the former requirement of a formal application for religious exemption…The proposed rule gives schools a free pass to discriminate and block access to civil rights protections for transgender and queer students. The Department’s no-notice religious exemption is an escape hatch—schools claim the exemption after a report and evade any responsibility. This provision should be eliminated, and accountability for religious exemptions should remain in the form of a formal application for an exemption. This tried and true method allows students a modicum of accountability while not infringing on the religious freedom of schools or unfairly burdening recipients with needless paperwork.”

• We recommend the preponderance standard of evidence be used across the board. “Preponderance has been the recommended standard for use in all student discipline cases for nearly thirty years. If the preponderance standard were used for a plagiarism investigation and a clear and convincing standard used for a Title IX investigation, the result would be that it is easier for a student to get removed from school for plagiarism than it is for violence against another student. This is inconsistent and unfair. The use of the clear and convincing standard would be inconsistent with the enforcement of similar civil rights legislation. The burden imposed in adjudicating other civil rights complaints including Title II and Title VII has historically been the preponderance standard. The burden imposed in adjudicating claims not related to sexual violence under Title IX has always been preponderance. There is no reason that complainants seeking relief for this certain class of violations under this particular civil rights statute should face greater burdens than complainants under other civil rights laws.”

• Returning to a more inclusive definition of sexual harassment and clarifying Title IX prohibits sex-based discrimination, which includes discrimination against LGBTQIA+ students and pregnant and parenting students.
• Reasserting that Title IX applies to any incident of sexual misconduct that creates a hostile environment and is unwelcome.
• Restore protections for students who experience harassment while they are off-campus and expand the purview of Title IX to include students who experience harassment while studying abroad.
• Eliminating the requirement for live hearings which previously dissuaded many students from reporting a Title IX complaint.
• Preventing retaliation against students who report sexual harassment or assault by their peers or their university.
• Clearly defining protections for students from marginalized communities, ensuring Title IX coordinators can adequately accommodate students with disabilities, and creating protections for transgender students, and pregnant and parenting students.

The proposed Title IX rule does not reverse harmful changes made in 2020 by the Trump administration to the Title IX religious exemptions that allowed more schools to discriminate in the name of religion and with less transparency.

Unfortunately, the 2020 rules largely remain in effect until a new rule is finalized. Because of how long the rulemaking process takes, students will likely not see these new changes go into effect until at least another school year at the earliest.

On December 10, 2021, the Department of Education announced within their Unified Agenda that the newly proposed Title IX regulations will be published in April 2022. During this time, the NPRM process will begin. Unfortunately, what this means is that the current Betsy DeVos-era Title IX regulations are still in effect and schools can continue to discriminate against student survivors.

On October 6, 2021, EROC, along with It’s on Us, Know Your IX, Every Voice Coalition, National Women’s Law Center, Girls, Inc., Equal Rights Advocates, delivered a petition with over 50,000 signatures of students, parents, advocates, and lawmakers, to urging the U.S. Department of Education to restore student survivors’ rights and make college campuses safer.

The petition called on the U.S. Department of Education to: 

• Issue proposed changes to the Title IX rule by October, 2021. The Department of Education must act swiftly to ensure that no survivor is pushed out of school because of sexual violence and harassment.
• Issue aNonenforcement Directive on portions of DeVos’ Title IX rule, indicating that, while we wait for a new rule, the Department will not enforce the sections of DeVos’ Title IX rule that (among other things):
  • Forbid schools from following state or local laws addressing sexual violence in education that provide greater protections for student survivors if they conflict with the DeVos Title IX rule; 
  • Force survivors into unfair and hostile investigations and hearings which only apply to victims of sexual violence, but not to other forms of campus misconduct and violence; and
  • Require schools to dismiss Title IX complaints based on the location of the harassment, because the complainant has not suffered enough, or because the complainat was already pushed out by the sexual harassment/violence.
• Ensure that survivors can file complaints with the Office for Civil Rights when their rights are violated. In 2018, DeVos’s Department of Education altered the case processing manual to limit the number of students who could seek help from the Office for Civil Rights. Currently, students have only 180 days from the FIRST instance of alleged discrimination to file a complaint. Instead, complainants should be allowed to file within 180 days from the most recent instance of discrimination instead of from the first instance.

You can learn more here about our #EDActNow petition.

We met with Acting Assistant Secretary of Education, Suzanne Goldberg and Deputy Secretary of Education, Cindy Marten and other representatives of the Office of Civile Rights of the U.S. Department of Education to present our demands and ask them to act now.

Unfortunately, the meeting resulted in the representatives refusing to meet our demands, nor offering any proactive notion to at least consider our demands, reconvene amongst themselves to offer any resolution or concession. They reiterated their timeline of issuing an NPRM process in May 2022. Students and advocates left disappointed, frustrated, and disconnected given the Biden Administration’s seemingly committed stance on sexual and gender-based violence.

Two days following this meeting, on October 8, 2021, Acting Assistant Secretary Suzanne Golberg wrote a statement via the Office of Civil Rights Blog on attempting to reinforce their commitment to addressing sexual violence in educational environments. You can read the blog here.

On April 6, 2021, the Department of Education’s Office of Civil Rights’ (OCR) announced their launch of a comprehensive review of Title IX regulations per President Biden’s March 8 Executive Order.

In their letter to students, educators, and other stakeholders, they declare that “ensuring equal access to education for all students–from pre-K through elementary and secondary schools and postsecondary institutions–is at the heart of our mission”. 

OCR also acknowledged how students, especially those at the intersections of their identities, are often subjected to multiple forms of discrimination at higher rates than their counterparts. As part of their comprehensive review, the following actions were taken:

• A public hearing from June 7-11 to gathered feedback from students, parents, teachers, faculty members, school staff, administrators, and other stakeholders. You can read EROC’s full testimony here.
• The issuance of a question-and-answer document to provided clarity on how the OCR interprets schools’ existing obligations under the 2020 amendments, including how schools respond to reports of sexual harassment. You can read the Questions and Answers on Title IX Regulations on Sexual Harassment issued in July 2021 here.
• Following the public hearing and review of the Title IX regulations, OCR implements a formal process of a notice of proposed rule-making (NPRM) in the Federal Register. During this period, individuals, organizations, schools, and other members of the public had the opportunity to share their insights on the proposed changes.

Under this order, within the next 100 days, Secretary of Education Miguel Cardona, in consultation with the Attorney General, was obligated to:

1. Review all existing regulations, orders, guidance documents, policies, and any other similar agency actions that are or may be inconsistent with the policy set forth in section 1 of the order and provide the findings to the Director of the Office of Management and Budget. 
2. Issue new guidance as needed on the implementation of the rule as soon as practicable, appropriate, and consistent with the applicable law.
3. Authorize to revise, rescind, or issue new rule set forth in section 1 of this order as soon as practicable and as appropriate and consistent with applicable law, and may issue such requests for information as would facilitate doing so.