DOE’s New Title IX Notice Proposes Dramatic Changes for Colleges

On November 16, 2018, the Department of Education published its proposed new Title IX regulations, as well as a one-page fact sheet and six-page background and summary document. You can find the DOE’s Press Release here.  The proposed regulations (also referred to as a “Notice of Proposed Rulemaking” or “NPRM”) were formally published in the Federal Register on November 29, 2018.  The DOE requests comments through January 28, 2019.

As you may recall, in September 2017 the DOE advised the public that these proposed new regulations were coming. On September 22, 2017, the DOE rescinded previous guidance issued by the Obama Administration, and issued the 2017 Title IX Q&A as an interim and temporary measure to provide information on the DOE’s views of the law.

As you have likely heard, the proposed new regulations offer sweeping and significant changes regarding how colleges will likely be required to handle complaints of sexual harassment and assault to comply with Title IX. It is anticipated that the DOE will not issue final regulations until the summer or fall of 2019.  Moreover, there may be court challenges along the way. Nevertheless, these proposed regulations and the “preamble” tell us precisely what the DOE believes the law to be.  Further, we should expect that the final regulations will generally track the proposed regulations.

We encourage you to read the November 6 fact sheet, background document, and the Federal Register publication on November 29. The 33-page preamble accompanying the proposed regulations are especially important as it provides great detail on the DOE’s rationale and interpretation of the law.  You can read the actual proposed regulations here.

As one example, as part of its proposed regulations for grievance procedures, the DOE emphasizes the training required for coordinators, investigators and decision makers to ensure that they do not have a conflict of interests or bias. In its preamble, the DOE explains, in part, as follows:

[Colleges] will also be required to use training materials that promote impartial investigations and adjudications and that do not rely on sex stereotypes, so as to avoid training that would cause the grievance process to favor one side or the other or bias outcomes in favor of complainants or respondents.    — 83 Fed. Reg. No. 230 at 61473 (November 29, 2018)

Gentry Locke is well equipped to assist Colleges and Universities as you consider changes or updates to your policies and practices or if you have situations for which you need guidance or advice. Please contact Todd Leeson, David Paxton or any member of our College & University or Employment Law Practice Group if we can further assist you.

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