New Title IX Regs

New tentative regulations regarding Title IX (sexual harassment and assault) are now out. From Higher Ed Dive: 

The U.S. Department of Education on Friday issued its long-awaited Title IX rule, which for the first time enshrines protections for LGBTQI+ students and employees, as well as pregnant students and employees, under the civil rights law that prevents sex-based discrimination in federally funded education programs... 

Among other changes, the new rule defines sex-based harassment as including harassment based on sex stereotypes, sex characteristics, pregnancy and related conditions, and gender identity and sexual orientation. It cements federal protections for LGTBQI+ students and employees that have swung between administrations for over a decade.

The regulations also broaden the conditions triggering Title IX protections by changing the definition of sex-based harassment from conduct that is “severe, pervasive, and objectively offensive,” to either “severe or pervasive” conduct that must be considered both “subjectively and objectively offensive.” 

The new regulations also:

• Require that schools assume an accused student is innocent at the outset of an investigation.
• Give schools the ability to offer an informal resolution process, except in cases of student allegations against employees. 
• Require schools to provide breastfeeding rooms for students and employees.
• Protect students and employees with medical conditions related to, or who are recovering from, termination of pregnancy. 
• Revive the single-investigator model, which allows an individual to serve as both the case decision-maker and Title IX investigator.
• Provide more discretion to schools and colleges to tailor Title IX policies based on their size, age of students, and administrative structures. 
• Make questioning at live hearings optional for colleges and universities.
• Have institutions largely rely on the “preponderance of the evidence” standard often used in civil lawsuits, making optional the “clear and convincing” standard.
• Change the definitions and requirements of a complaint to allow oral requests and not require signatures.
• Slightly narrow the previously widened pool of employees who must notify the Title IX coordinator of discriminatory conduct to excludeconfidential employees, such as guidance counselors or sexual assault response center staff.
• Provide postsecondary institutions flexibility to set their own reasonable time frames to allow parties to review and respond to evidence.
• Removes written notice requirements in elementary and secondary schools...

Source: https://www.highereddive.com/news/education-department-final-title-ix-rule-2024-2022-lgbtq-protections/713684/.

As we have noted before, decisions under Title IX get in trouble with the outside courts when they seem to depart from due process as courts understand the concept. Combining the investigator and decision maker is something that could trigger such concerns. Not having questioning at live hearings could be another. As we have pointed out, courts have a long history of deferring to grievance arbitration as long found in union-management settings including in higher ed because it is seen as providing reasonable due process. Emulating that system, which features decisions by an outside neutral would best insulate Title IX cases from external reversal.