These last three years have been and will continue to be particularly challenging for school districts, students, parents and guardians given the myriad issues presented by the pandemic and post-pandemic life. In the midst of these challenges, implementing the major changes required by the 2020 Title IX Regulations (2020 Regulations) and the anticipated 2023 amendments to those Regulations (2023 Regulations), notwithstanding their significance, has placed and will continue to place strains on school districts’ limited staff and resources. With this in mind, school counsel, labor counsel and other attorneys working with school districts, as well as school committee members and school administrators, would be well advised to help their schools prepare for upcoming changes in the Title IX area by informing them when
to expect the final 2023 Regulations and identifying action steps
that schools can undertake over the summer.1
The Federal Office For Civil Rights Announces Final Regulations Publication Delay Until October 2023
The U.S. Department of Education’s (Department’s) Office for Civil Rights (OCR) announced at the end of May 2023 a new anticipated date of October 2023 (rather than June 2023) for publication of the final 2023 Title IX Regulations.2 As an explanation, the OCR noted that it had received an unprecedented number of public comments (240,000) on the newly proposed Title IX Regulations, which it needs more time to review and address.
As a result, the 2020 T.IX Regulations will remain in effect likely until sometime in December 2023, given that a 60-day implementation period typically is provided from the date new final regulations are published. This will place pressure on school districts to update their policies and procedures and train their staff in the midst of the busy school year. One way to ease that pressure is to use the summer months to begin planning for changes in areas that are likely to remain intact in the final 2023 Regulations.
Anticipated changes and actions school districts can take now
Overview of Anticipated Changes. The proposed amendments to the 2020 T.IX Regulations would broaden the existing Regulations in significant ways. They clarify that “sex discrimination” includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity, thereby strengthening protections for LGBTQIA+ individuals. Additionally, “sex discrimination” is defined to include “sex-based harassment,” a newly proposed term that includes, but is not limited to, sexual harassment. “Sex-based harassment” also covers harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity. Further, the new term includes other conduct undertaken on the basis of sex, including quid pro quo harassment, hostile environment harassment (with a broadened definition), and the specific offenses of sexual assault, dating violence, domestic violence and stalking.
Actions school districts can take now
- Understand Changes the Proposed Regulations Will Require. The proposed amendments to the 2020 Regulations are about 50 pages long and are accompanied by approximately 650 pages of explanatory preamble (a link to the proposed Regulations is provided at the end of this article). Key issues to note are: (1) the prohibition on all forms of sex-based harassment; (2) new requirements concerning pregnancy or related conditions; and (3) required changes to school districts’ nondiscrimination policies and procedures relating to sex, including a broadened definition of “on the basis of sex.”
- Review the Process for Making Revisions to the School District’s Policies and Procedures. Given that there will be a short turnaround time once the final Regulations are published and that this will occur during the busy school year, schools will benefit from reviewing the process for making revisions to their policies and procedures now, including consideration of their governance structure and key stakeholders.
- Review Current Policies and Procedures, Make any Nonconflicting Revisions and Plan to Make Future Changes. Many of the changes that school districts will need to make involve LGBTQIA+ protections, and pregnancy and related conditions. School districts should identify where their current nondiscrimination and sexual harassment policies and procedures are located (e.g., on websites and in student and employee handbooks), understand those policies and procedures and determine if any changes can be made now that will not conflict with the 2020 Regulations. Additionally, they should plan to expedite other policy revisions as soon as possible after the new Regulations are published in approximately October. The policies and procedures should be easily accessible to students, parents and guardians, school administrators and staff, as well as the general public. Stakeholders often find it helpful to have a simplified flow chart of the complaint grievance process to accompany the written policy and procedures.
- Understand and Plan for Protections from Pregnancy Discrimination
- Pregnancy or Related Conditions. The proposed Regulations reinforce that schools are prohibited from discriminating against pregnant and parenting students and employees. They would amend the definition of “pregnancy or related conditions” to include lactation and pregnancy-related medical conditions, in addition to pregnancy, childbirth, termination of pregnancy and recovery from those conditions. Thus, the proposed Regulations will protect against discrimination based on one or more of these conditions.
- Identify Lactation Spaces. The proposed Regulations would require schools to provide students with reasonable modifications of their policies, practices or procedures to accommodate pregnancy and related conditions. However, a student would have to undertake those modifications voluntarily. The proposed Regulations require explicitly that schools make available dedicated lactation spaces, other than bathrooms, that are clean, private and accessible and may be used for expressing breast milk or breast-feeding. Given that this provision is likely to remain in the final 2023 Regulations, school districts should begin identifying and planning for lactation spaces now.
- Understand and Begin Planning for Training and Mandated Reporter Requirements. The new Regulations will require schools to train all employees about the schools’ obligations to address sex discrimination, a requirement that goes beyond the mandates of the existing Title IX requirements. All training materials must be made publicly available. Additionally, under the proposed Regulations, school districts will be permitted to designate certain employees as confidential resources to provide services to individuals in connection with sex discrimination claims. Those confidential employees must still be trained but will not be required to report complaints of sex discrimination if they are functioning in their confidential role as opposed to an additional role not associated with providing confidential resource services. Schools should begin to identify which, if any, employees they would like to designate confidential.
By planning now for upcoming changes to the Title IX Regulations that are expected to remain intact in the final 2023 Regulations, school districts will best position themselves for successful implementation of the new Regulations and minimize stress and disruption for their students, parents, guardians and employees.
Access the Proposed Regulations:
The unofficial version of the July 2022 Notice of Proposed Rulemaking (NPRM) can be accessed here
(the proposed Title IX Regulations are on pp. 650-700). The U.S. Department of Education’s Summary of Major Provisions of the July 2022 NPRM can be found here
Judy A. Levenson is principal at the Law Office of Judy Levenson. She is an experienced attorney, investigator and trainer in the areas of schools and education law, civil rights, and municipal and ethics law. She is ATIXA-Certified to serve as a K-12 Title IX consultant/trainer, investigator, hearing officer and decision-maker. Levenson provides customized legal compliance training programs about Title IX and other civil rights and school law issues. Additionally, she conducts impartial, external investigations of complaints of Title IX violations, discrimination, bullying and state ethics law violations. Levenson’s pragmatic approach is informed by her prior work in the Civil Rights Division of the Massachusetts Attorney General’s Office, as general counsel to the State Ethics Commission and as a partner with Brody, Hardoon, Perkins & Kesten LLP.
1. Although this article is directed primarily to K-12 school districts, the majority of principles discussed herein apply to postsecondary educational institutions as well. However, the details of particular regulations may differ for postsecondary schools as compared with elementary and secondary schools.
2. The department engaged in a separate rulemaking process to address Title IX’s application in the context of athletics and, in particular, the criteria schools may use to establish students’ eligibility to participate on a particular female or male team. That final regulation also is expected to be published in October 2023.