Tag: Title

  • Education Department will enforce 2020 Title IX rule

    Education Department will enforce 2020 Title IX rule

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    Dive Brief:

    • The U.S. Department of Education has told colleges and school districts they should follow the 2020 Title IX rule for investigating sex discrimination in schools, closing the chapter on a Biden administration rule that faced much legal turmoil. 
    • In a Friday “Dear Colleague” letter, Craig Trainor, acting assistant secretary for civil rights, said that under the 2020 rule, the interpretation of “sex” means being born male or female. 
    • The letter also clarified that any open Title IX investigations initiated under the 2024 Title IX Rule should be immediately reevaluated to comply with the requirements of the 2020 rule.

    Dive Insight:

    Trainor said the change is based on a federal judge’s decision in early January that struck down the 2024 rule as unconstitutional across the country. That Biden administration rule for the first time extended Title IX civil rights protections to LGBTQI+ students and employees at federally funded schools and colleges — including by prohibiting discrimination based on gender identity and sexual orientation. 

    Released in April 2024, the rule drew legal challenges, and courts blocked the regulations in at least 26 states.

    Trainor also stated that the 2024 rule conflicts with a Jan. 20 executive order from President Donald Trump that requires all federal agencies and departments to recognize just two sexes — male and female — when it comes to “sex-protective” laws. 

    “As a constitutional matter, the President’s interpretation of the law governs because he alone controls and supervises subordinate officers who exercise discretionary executive power on his behalf,” Trainor’s letter said.

    Supporters of the 2020 rule, developed under the first Trump administration, praised the letter.

    Chad Wolf, executive vice president of the America First Policy Institute, said that under the 2020 rule, women and girls were “unjustly and illegally” denied access to sex-segregated athletic opportunities and intimate spaces. Linda McMahon, President Trump’s nominee for U.S. education secretary, is chair of the board at AFPI. 

    “Female athletes were seriously injured competing against males, and many were forced to undress in front of males,” Wolf said in a statement. “It was a misguided policy that did real harm, and this new guidance puts an end to it.”

    But opponents to the 2020 rule voiced concern, saying it puts students at greater risk of harassment and discrimination.

    “This is an incredibly disappointing decision that will leave many survivors of sexual violence, LGBTQ+ students, and pregnant and parenting students without the accommodations critical to their ability to learn and attend class safely,” said Emma Grasso Levine, senior manager of Title IX policy and programs at Know Your IX, in a statement. “Schools must step up to protect students in the absence of adequate federal guidance.”

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  • Education Department will enforce 2020 Title IX rule

    Education Department will enforce 2020 Title IX rule

    This audio is auto-generated. Please let us know if you have feedback.

    Dive Brief:

    • The U.S. Department of Education has told school districts and colleges they should follow the 2020 Title IX rule for investigating sex discrimination in schools, closing the chapter on a Biden administration rule that faced much legal turmoil. 
    • In a Friday “Dear Colleague” letter, Craig Trainor, acting assistant secretary for civil rights, said that under the 2020 rule, the interpretation of “sex” means being born male or female. 
    • The letter also clarified that any open Title IX investigations initiated under the 2024 Title IX Rule should be immediately reevaluated to comply with the requirements of the 2020 rule.

    Dive Insight:

    Trainor said the change is based on a federal judge’s decision in early January that struck down the 2024 rule as unconstitutional across the country. That Biden administration rule for the first time extended Title IX civil rights protections to LGBTQI+ students and employees at federally funded schools and colleges — including by prohibiting discrimination based on gender identity and sexual orientation. 

    Released in April 2024, the rule drew legal challenges, and courts blocked the regulations in at least 26 states.

    Trainor also stated that the 2024 rule conflicts with a Jan. 20 executive order from President Donald Trump that requires all federal agencies and departments to recognize just two sexes — male and female — when it comes to “sex-protective” laws. 

    “As a constitutional matter, the President’s interpretation of the law governs because he alone controls and supervises subordinate officers who exercise discretionary executive power on his behalf,” Trainor’s letter said.

    Supporters of the 2020 rule, developed under the first Trump administration, praised the letter.

    Chad Wolf, executive vice president of the America First Policy Institute, said that under the 2020 rule, women and girls were “unjustly and illegally” denied access to sex-segregated athletic opportunities and intimate spaces. Linda McMahon, President Trump’s nominee for U.S. education secretary, is chair of the board at AFPI. 

    “Female athletes were seriously injured competing against males, and many were forced to undress in front of males,” Wolf said in a statement. “It was a misguided policy that did real harm, and this new guidance puts an end to it.”

    But opponents to the 2020 rule voiced concern, saying it puts students at greater risk of harassment and discrimination.

    “This is an incredibly disappointing decision that will leave many survivors of sexual violence, LGBTQ+ students, and pregnant and parenting students without the accommodations critical to their ability to learn and attend class safely,” said Emma Grasso Levine, senior manager of Title IX policy and programs at Know Your IX, in a statement. “Schools must step up to protect students in the absence of adequate federal guidance.”

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  • Federal Judge Strikes Down Biden Administration’s Title IX Rule

    Federal Judge Strikes Down Biden Administration’s Title IX Rule

    by CUPA-HR | January 9, 2025

    On January 9, a federal judge in the Eastern District of Kentucky Court vacated the Biden administration’s Title IX regulations. The order strikes down the regulations nationwide, reverting enforcement back to the 2019 Title IX regulations set by the Trump administration.

    Background

    The Biden administration’s Title IX final rule was released in April 2024 and was set to take effect on August 1, 2024. Soon after the rule was published, several states filed legal challenges against it, resulting in preliminary injunctions that blocked the rule from taking effect in 26 states and hundreds of schools in other states that did not challenge the regulations.

    The Biden administration appealed the preliminary injunctions to the Supreme Court, requesting that the court limit the scope of the preliminary injunctions placed by the lower courts to block only those provisions that related to gender identity. They argued that the lower courts’ decisions to grant the preliminary injunctions were based on concerns with the expanded protections for transgender students and that other provisions like the new grievance procedures and training requirements set forth by the final rule should be able to take effect. The Supreme Court ultimately rejected the Biden administration’s request, arguing that the gender identity provisions were “intertwined with and affect other provisions of the rule.”

    District Court Judge’s Ruling

    In the ruling that vacates the rule nationwide, the federal judge stated that the Biden administration’s Title IX rule is unlawful because Title IX’s prohibition on sex discrimination does not include the scope laid out in the regulations, which include expanded protections for pregnancy or related conditions, gender identity and sexual orientation. The order also states that the rule violates the First Amendment and that it is “arbitrary and capricious.”

    Looking Ahead

    The judge’s order almost certainly ends any hopes for the Biden administration’s Title IX regulations to take effect nationwide. The Biden administration may decide to appeal the decision to a higher court, but efforts to reinstate the rule will likely be unsuccessful given the few days they have left in office and the incoming Trump administration’s unwillingness to defend the rule in court. Alternatively, the Trump administration may seek to update their 2019 Title IX regulations, though any urgency to do so may be diminished now that the 2019 regulations are back in place.

    CUPA-HR will continue to monitor for Title IX updates and keep members apprised via Washington Insider Alert emails and the blog.



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  • Federal judge throws out Biden’s Title IX overhaul

    Federal judge throws out Biden’s Title IX overhaul

    Updated at 6:30 p.m. Jan. 9

    A years-long effort to change how colleges respond to reports of sexual harassment and discrimination and to expand protections for transgender students is dead after a federal judge ruled Thursday that the Biden administration’s overhaul of Title IX of the Education Amendments of 1972 was unlawful.

    The court order vacates the rule nationwide and could create more confusion for colleges as they seek to move forward without running afoul of the federal gender equity law. The Title IX changes were already on hold in 26 states and at hundreds of colleges, thanks to a series of lawsuits from 26 Republican attorneys general. Thursday’s order is the first final ruling in those cases and was part of a lawsuit brought by Indiana, Kentucky, Ohio, Tennessee, Virginia and West Virginia.

    Republican lawmakers and state officials celebrated the ruling as a victory for women and girls while advocates for LGBTQ+ students criticized the decision as an attack on transgender students. The Biden rule allowed students to use the bathrooms and locker rooms that align with their gender identity.

    Chief Judge Danny Reeves of the U.S. District Court for the Eastern District of Kentucky, who previously criticized the rule, wrote in a 15-page opinion that the regulations suffer “significant constitutional infirmities.” For instance, using the wrong pronouns for a student could be considered harassment under the rule. That provision “offends the First Amendment,” wrote Reeves, a George W. Bush appointee.

    “As expected, courts have continued to find it impossible to justify the Biden administration’s changes to Title IX rules eviscerating students’ speech and due process rights,” said Tyler Coward, lead counsel for government affairs at the Foundation for Individual Rights and Expression, a free speech and civil liberties advocacy organization.

    The ruling is the latest legal setback for Biden’s higher ed agenda, which hasn’t fared well in federal court.

    ‘Back in Time’

    Colleges and universities will now revert to the previous Title IX rule, which took effect in summer 2020 during the first Trump administration. Those regulations required colleges to hold live hearings with an opportunity for cross-examination to allow those accused of sexual misconduct to confront their accusers—a provision the Biden rules nixed. Additionally, the 2020 regulations defined sexual harassment more narrowly than the Biden Title IX rule.

    “Fitting, I guess—everything’s going back in time four years,” said Brigid Harrington, a higher education attorney at Bowditch & Dewey who focuses on compliance with civil rights laws. “Schools that had been enjoined were already there, so it doesn’t change things for many.”

    Colleges don’t have to throw out all their new policies related to harassment and discrimination; they can keep the parts that don’t conflict with the 2020 rule. For example, under the 2024 regulations, colleges must give pregnant students notice of their rights, and the 2020 rule doesn’t prevent a college from doing so. (Reeves didn’t take issue with the pregnancy provisions but said, “It simply is not proper for the court to rewrite the regulations by excising the offending material.”)

    Thursday’s ruling wasn’t a complete surprise for colleges and universities, considering the injunction and upcoming change in administrations. Andrea Stagg, director of consulting services at Grand River Solutions, a company that works with colleges on Title IX and other issues, said that colleges already have started talking about what to change in their policies and what to keep.

    Still, reimplementing the 2020 regulations will mean retraining and re-educating students, staff and faculty about the changes.

    “It’s very complicated, expensive and exhausting … and folks don’t have the resources,” she said. “For a field that already experiences a ton of burnout … it’s demoralizing to work so hard and then have the rules change on you.”

    Several other lawsuits challenging the rule are still pending, and the Biden administration could appeal the decision to the U.S. Court of Appeals for the Sixth Circuit, so Thursday’s decision may not be the end of the legal battle over Title IX. The Education Department could not be reached for comment Thursday because the offices were closed in commemoration of former president Jimmy Carter’s passing.

    “I don’t think this is the last that we’re going to hear of this,” said Harrington. “I think that civil rights are going to be a big topic for the next four years.”

    A Repudiation or an Attack?

    Republican attorneys general who sued the Biden administration and conservative advocates who criticized the rule celebrated the judge’s decision “as a massive win” and a sign that “common sense is slowly returning.”

    “The court’s ruling is yet another repudiation of the Biden administration’s relentless push to impose a radical gender ideology through unconstitutional and illegal rulemaking,” Tennessee attorney general Jonathan Skrmetti said in a statement. “Because the Biden rule is vacated altogether, President Trump will be free to take a fresh look at our Title IX regulations when he returns to office [Jan. 20].”

    President-elect Donald Trump has criticized Biden’s Title IX changes, and many experts expect him to issue new regulations that are more conservative than his 2020 rule, especially concerning LGBTQ+ students.

    Congressional Republicans, who sought to overturn the Title IX rule, also praised the ruling and pledged to protect educational opportunities for women and girls. Passing legislation that would prevent transgender students from participating on the sports team consistent with their gender identity is a top priority for the House.

    “It is clear the Biden-Harris administration completely lost its way on Title IX,” said Louisiana senator Dr. Bill Cassidy, the chair of the HELP committee, in a news release. “They betrayed the original intent of Title IX by removing longstanding protections that ensured fairness for women and girls.”

    Representative Tim Walberg, the Michigan Republican who chairs the House Committee on Education and the Workforce, said that Biden’s proposed rewrite “would have undermined safety, freedom and fairness for women.”

    Meanwhile, advocates for LGBTQ+ students and those who experience harassment or sexual violence described the ruling as an attack on trans students and others that would impact their educations.

    “With these protections already removed in some states, students who experience sexual assault have had their complaints dismissed, or worse, been punished by their schools after reporting; pregnant students have been unfairly penalized for taking time off to give birth to a child; and LGBTQI+ students have faced vicious bullying and harassment just for being who they are,” said Fatima Goss Graves, president and CEO of the National Women’s Law Center.

    Tracey Vitchers, executive director of It’s On Us, a national organization working to combat campus sexual assault, took issue with claims that overturning the Biden rule would protect women and girls.

    “The 2020 regulations did well-documented harm to the safety of women and girls by making it more difficult to report and obtain justice if they experience sexual violence in school,” she said. “If preserving the rights and safety of women and girls was the actual litmus test for today’s decision, the judge would have chosen to uphold Biden’s rule. Instead, the safety of women and girls is being weaponized to discriminate” against trans people.

    Vitchers added that while Title IX is important, colleges are required under state and federal laws to respond to reports of harassment and address student safety.

    “Institutions are going to have to find ways to be creative to uphold the rights and safety of students on their campus under this new environment,” she said. “If Title IX is going to continue to be this horrible political football it has turned into, we need to see schools invest in evidence-based approaches to sexual violence prevention, because the ultimate goal is to ensure students have an education free of sexual violence.”

    Jessica Blake contributed to this report.

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  • Supreme Court Rejects Biden Administration’s Request for Relief in Title IX Legal Challenges – CUPA-HR

    Supreme Court Rejects Biden Administration’s Request for Relief in Title IX Legal Challenges – CUPA-HR

    by CUPA-HR | August 19, 2024

    On August 16, the U.S. Supreme Court ruled against the Biden administration’s request to partially overturn preliminary injunctions from lower courts that block the Department of Education from enforcing the administration’s April 2024 Title IX final rule. The decision leaves the preliminary injunctions from the lower district courts in place, preventing the new Title IX rule from taking effect in 26 states and hundreds of schools in other states.

    Background

    Shortly after the Biden administration’s Title IX final rule was published, over two dozen states and advocacy groups filed lawsuits challenging the rule. Over the course of the summer, decisions from lower district courts across the country placed preliminary injunctions on the final rule, leading to the blocking of the final rule in 26 states, as well as at hundreds of schools where members of the Young America’s Foundation, Female Athletes United and Moms for Liberty are in attendance.*

    After several preliminary injunctions were issued, the Biden administration appealed to the Supreme Court with an emergency request asking the court to limit the scope of the preliminary injunctions placed by the lower courts. Specifically, the Biden administration asked the Supreme Court to limit the scope of the preliminary injunctions to only block provisions of the Title IX final rule related to gender identity, arguing that the lower courts’ decisions to grant the preliminary injunctions were based on concerns with the expanded protections for transgender students. The Biden administration had hoped that by limiting the scope of the preliminary injunctions, other provisions like the new grievance procedures and training requirements would be able to take effect on August 1.

    Supreme Court’s Decision

    In a 5-4 decision, the Supreme Court rejected the Biden administration’s plea to limit the scope of the preliminary injunctions, leaving in place the lower courts’ rulings. The majority opinion stated that the Biden administration did not provide a strong enough argument to sway the Supreme Court to overturn the lower courts’ decisions, and they argued that the gender identity provisions the Biden administration had hoped to limit the scope of the preliminary injunctions to were “intertwined with and affect other provisions of the rule.”

    Looking Ahead

    With the Supreme Court’s decision, the preliminary injunctions from the lower courts are still in place. Further decisions from the district courts on the legality of the final rule are still pending. The Title IX rule could return to the Supreme Court in the future, however, depending on how lower courts rule on the legality of the final rule and whether those decisions are appealed.

    CUPA-HR will keep members apprised of any updates on the legal challenges against the Biden administration’s Title IX rule.

    *The 26 states where the rule is blocked from being enforced by the Department of Education are 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. The final rule is also blocked from taking effect at hundreds of colleges and universities across the country, including in states that did not challenge the Title IX final rule. A list of those schools can be found here.



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  • Title IX Rule Goes Into Effect in 24 States – CUPA-HR

    Title IX Rule Goes Into Effect in 24 States – CUPA-HR

    by CUPA-HR | August 1, 2024

    On August 1, the Biden administration’s Title IX final rule goes into effect, implementing new requirements for compliance with Title IX for institutions of higher education. However, ongoing legal challenges have blocked the rule from taking effect in 26 states, as well as at certain institutions in states that have not sued the Department of Education (ED).

    Background

    On April 19, ED released the text of the highly anticipated Title IX final rule. The final rule expands protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions, and it implements new training requirements for employees and grievance procedures for handling reported cases of sex-based discrimination, including sexual harassment. To provide members with an overview of the final rule, CUPA-HR held a webinar in April, which was recorded and can be accessed for free.

    Lawsuits

    Shortly after the rule was published, over 20 Republican-led states and advocacy groups filed lawsuits challenging the final rule. The lawsuits sought to block ED from implementing and enforcing the final rule, though most of them homed in on concerns with expanding Title IX protections to transgender individuals through the expanded protections against discrimination based on an individual’s gender identity.

    From mid-June through the end of July, federal judges across the country granted preliminary injunctions to the states and advocacy groups challenging the rule, meaning the Department of Education is blocked from enforcing the new Title IX rule on the August 1 effective date. All 26 states that sued ED for the Title IX rule were ultimately granted injunctive relief. Additionally, a decision from the U.S. District Court of Kansas expanded the preliminary injunction to include schools attended by members of the Young America’s Foundation, Female Athletes United, and Moms for Liberty. This means that ED cannot enforce the new Title IX rule at certain schools in the 24 states that didn’t challenge the rule, as well as Washington, D.C., and Puerto Rico.

    The Biden administration has appealed to the Supreme Court on the decisions granting the preliminary injunctions. In its emergency request, the administration is asking the court to limit the scope of the preliminary injunction to only block provisions related to gender identity. It argued that the lower court’s decisions to grant preliminary injunctions were based on concerns with the expanded protections for transgender students, and it hopes that other provisions like the new grievance procedures and training requirements can go into effect. A decision from the Supreme Court on the emergency request has not yet been issued.

    Looking Ahead

    Though ED is blocked from enforcing the new Title IX rule in 26 states, litigation continues in the lower courts where decisions have been issued on whether to strike down the rule. If the rule is struck down, the Biden administration is likely to appeal the decision, though it is unknown whether a decision will be released before the election and potential change in administration. CUPA-HR will keep members apprised of additional updates to the legal challenges against the Title IX final rule.

     



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  • Federal Judges Block Title IX Rule in 10 States – CUPA-HR

    Federal Judges Block Title IX Rule in 10 States – CUPA-HR

    by CUPA-HR | June 17, 2024

    Updates:
    On June 17, a federal judge in the Eastern District Court of Kentucky issued a second preliminary injunction against the Title IX rule, blocking the final rule from taking effect on August 1 in Virginia, Kentucky, Tennessee, Indiana, Ohio and West Virginia.

    On June 24, the Biden administration filed a notice of appeal for the preliminary injunction granted in the Western District Court of Louisiana to block the Title IX final rule from going into effect on August 1, 2024. The appeal will be filed in the 5th U.S. Circuit Court of Appeals. The preliminary injunction remains in effect until the 5th Circuit Court issues a decision. CUPA-HR will keep members apprised of any updates on this appeal as well as the status of the second preliminary injunction granted in the Eastern District Court of Kentucky.

    On July 2, a federal judge in the U.S. District Court of Kansas issued a third preliminary injunction to block the Biden administration’s Title IX rule from taking effect on August 1. The preliminary injunction applies to four states: Alaska, Kansas, Utah and Wyoming. The preliminary injunction also applies to schools where members of the Young America’s Foundation, Female Athletes United, and Moms for Liberty attend, even if the state in which the school is located is not challenging the rule or is not included in another preliminary injunction. The Title IX rule is now blocked from being enforced beginning on August 1 in a total of 14 states, as well as over 360 institutions in 24 states, Washington D.C., and Puerto Rico that are not suing the Biden administration over the Title IX rule.

    On July 11, Republicans in the U.S. House of Representatives passed a Congressional Review Act resolution to block the Department of Education from implementing and enforcing its Title IX final rule. The vote is largely symbolic as the Democrat-controlled Senate is unlikely to take up the measure and President Biden would veto the resolution if it ended up on his desk.

    On July 11, a federal judge in the Northern District Court of Texas granted a fourth preliminary injunction to block the Title IX final rule from taking effect on August 1 in the state of Texas. The Title IX final rule is now blocked from taking effect in 15 states.

    On July 24, a federal judge from the Eastern District Court of Missouri issued another preliminary injunction to block the Title IX rule from taking effect in six more states. The states included in this decision were Arkansas, Missouri, Iowa, Nebraska, North Dakota, and South Dakota. The Title IX final rule is now blocked from taking effect on August 1 in a total of 21 states.

    On July 31, a federal judge in the Western District Court of Oklahoma granted a preliminary injunction to block the Title IX final rule from taking effect on August 1. Additionally, the 11th U.S. Circuit Court of Appeals granted a preliminary injunction in Alabama, Florida, Georgia, and South Carolina, overturning a lower court’s previous decision to deny the preliminary injunction in those states. There are 26 states in which the Title IX rule is now blocked from taking effect on August 1.

    On June 13, a federal judge in the Western District Court of Louisiana issued a preliminary injunction on the Department of Education (ED)’s recent Title IX final rule. The order blocks the final rule from taking effect on August 1 in Louisiana, Mississippi, Montana and Idaho until a final decision has been issued by the judge on a lawsuit challenging the validity of the final rule.

    ED’s Final Rule and Subsequent Lawsuits

    In April, ED released its highly anticipated final rule to amend the Title IX regulations. Notably, the final rule expands protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions. Soon after it was published, several lawsuits were filed by states and advocacy groups challenging ED’s decision to expand Title IX protections to include gender identity and sexual orientation. 

    Judge’s Order

    In the order to grant a preliminary injunction, the federal judge asserted that the Title IX rulemaking is “contrary to law” and “exceeds statutory authority,” especially with the expanded protections for transgender students. Specifically, the judge explained that Congress intended to protect biological women from discrimination when enacting Title IX, and that “enacting the changes in the final rule would subvert the original purpose of Title IX.”

    As a result, ED is blocked from enforcing the final rule in the four states listed in the order, and the final rule will not take effect on August 1 in those four states until further orders are issued by the court.* The judge will now consider the lawsuit challenging the final rule and decide to either uphold or strike down the rule. A final decision may take months or a year or more to be released, as any decision is likely to be appealed to a higher court. In the meantime, CUPA-HR encourages HR leaders in the states impacted by this preliminary to work with their institution’s general counsel on best practices for navigating Title IX compliance.

    CUPA-HR will keep members apprised of additional updates on the legal challenges against the Title IX final rule.

    * Over two dozen states have joined lawsuits challenging the Title IX final rule. Though the order in this blog post applies only to Louisiana, Mississippi, Montana and Idaho, decisions for the additional lawsuits could result in similar injunctions for other states.



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  • Department of Education Issues Guidance on Discrimination Policies Under Title VI – CUPA-HR

    Department of Education Issues Guidance on Discrimination Policies Under Title VI – CUPA-HR

    by CUPA-HR | May 13, 2024

    On May 7, the Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague” letter to offer guidance on schools’ responsibilities to prevent and rectify discrimination based on race, color, or national origin, including shared ancestry or ethnic characteristics, under Title VI of the Civil Rights Act of 1964 and its implementing regulations. The guidance aims to provide examples to institutions to help them carry out their Title VI requirements.

    In its letter, OCR explains that it has received an increase in complaints alleging discrimination based on race, color, or national origin at colleges and universities, as well as public reports of such discrimination. While it does not explicitly state that the guidance is in response to reports of antisemitism on campuses and protests regarding the Israel-Hamas war, the department emphasizes in the letter that Title VI’s “protections extend to students and school community members who are or are perceived because of their shared ancestry or ethnic characteristics to be Jewish, Israeli, Muslim, Arab, Sikh, South Asian, Hindu, Palestinian or any other faith or ancestry,” and that “Title VI’s protections against discrimination based on race, color and national origin encompass antisemitism.”

    Additionally, the letter addresses First Amendment considerations, as well as two legal frameworks used by OCR and courts to assess whether schools have violated Title VI through discrimination: hostile environment and different treatment. The guidance illustrates nine examples that may prompt OCR to investigate an institution for possible Title VI violations within these two frameworks. Of particular importance for higher ed HR are the instances outlined in the letter when educators and other faculty members might engage in actions constituting harassment under Title VI, as well as schools’ obligations to address such incidents.

    As OCR notes, the guidance lacks the authority of law and does not impose obligations on the public or establish new legal standards. Instead, its purpose is to provide clarity to institutions receiving federal financial assistance regarding their requirements under Title VI. CUPA-HR will continue to share resources regarding institutions’ obligations to address discrimination under federal law.



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  • ED Releases Final Title IX Rule – CUPA-HR

    ED Releases Final Title IX Rule – CUPA-HR

    by CUPA-HR | April 19, 2024

    On April 19, the Department of Education (ED) released the text of the highly anticipated Title IX final rule. The final rule expands protections against sex-based discrimination to cover sexual orientation, gender identity, and pregnancy or related conditions. The rule also revokes both the Trump administration’s ban on campuses using a single person to investigate and adjudicate Title IX complaints and the Trump mandate regarding cross-examination of complainants. Institutions will need to be in compliance with the final rule by August 1, 2024.

    Background

    The ED released the text of the proposed rule on June 23, 2022, though the Federal Register did not officially publish the proposal until several weeks later on July 12, 2022. The agency received over 240,000 comments in response, including CUPA-HR comments seeking clarification on the overlaps between the ED’s proposal with institutions’ existing obligations to address employment discrimination. CUPA-HR also joined comments led by the American Council on Education.

    Noteworthy Provisions of the Final Rule

    As discussed above, the final rule defines “sex-based harassment” as a form of sex discrimination that includes sexual harassment and harassment based on sex stereotypes, sex characteristics, sexual orientation, gender identity, or pregnancy or related conditions. The term “pregnancy or related conditions” is further defined in the final rule to include pregnancy, childbirth, termination of pregnancy, lactation, and all related medical conditions and recovery.

    Additionally, as first introduced in the proposed rule, the final rule establishes new grievance procedures for sex-based harassment complaints. Specifically, the final rule requires institutions to apply two separate grievance procedures for sex-based harassment complaints depending on whether or not students are involved. The first section (§106.45) applies to any complaint of sex discrimination on campus, including employee-to-employee sex-based harassment complaints. The second section (§ 106.46) only applies when a student is involved as either the complainant or respondent (or both), regardless of whether the matter also involves employees. Notably, the second set of procedures also applies where a student is also an employee. The new rules also allow for certain complaints to move through an informal resolution process separate from the grievance procedures listed above if both parties agree to choose to move forward with that process.

    The final rule also imposes several training requirements, which the ED also included in the proposed rule. Under the rule, institutions must train all employees on the institution’s obligation to address sex discrimination under Title IX, the scope of conduct that constitutes sex discrimination under the law, and the notification and information requirements that applicable employees must follow upon learning about instances of sex-based harassment. Additionally, institutions must train individuals who serve as investigators, decisionmakers, and others responsible for implementing an institution’s grievance procedures on the institution’s grievance procedures and how to serve impartially through the grievance procedures. Facilitators of the informal resolution process must be trained on the rules and practices of an institution’s informal resolution process, and the institution must train individuals serving as Title IX coordinators on the requirements of their specific responsibilities throughout the notification, information, and grievance procedure processes as required by Title IX.

    Finally, the rule clarifies that when responding to retaliation, institutions must undergo all procedures for notifying and informing involved parties of their obligations under Title IX and initiate the appropriate grievance procedures.

    Looking Forward

    CUPA-HR’s government relations team is going through the 1,577-page final rule and will provide more information on the rule as needed through CUPA-HR’s blog. Additionally, CUPA-HR will host a webinar to cover the final rule on April 30. Registration is now open and is free for all to attend.



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  • White House Approves Title IX Final Rule — Rule Release Imminent – CUPA-HR

    White House Approves Title IX Final Rule — Rule Release Imminent – CUPA-HR

    by CUPA-HR | April 12, 2024

    On April 10, the White House Office of Information and Regulatory Affairs (OIRA) announced it had concluded review of the Department of Education’s (ED) final rule to amend Title IX. OIRA review is the final step in the regulatory process, and we expect the ED will issue the final rule any day now. We will send another alert as soon as ED publishes the final rule.

    The ED released the text of the proposed rule on June 23, 2022, though the Federal Register did not officially publish the proposal until several weeks later on July 12, 2022. The agency received over 240,000 comments in response, including CUPA-HR comments seeking clarification on the overlaps between the ED’s proposal with institutions’ existing obligations to address employment discrimination. CUPA-HR also joined comments led by the American Council on Education.

    The Federal Government’s Fall 2022 Regulatory Agenda had set the target release date of the final rule for May 2023, but the Department had to further delay that timeline to review all comments submitted in response to the proposed rule and address them in the final rule. Most recently, the ED indicated a March 2024 release of the final rule in the Fall 2023 Regulatory Agenda.

    CUPA-HR plans to hold a timely webinar on the final rule after publication. In the meantime, CUPA-HR will keep members apprised of additional updates on the Title IX final rule, including completion of the review and publication of the rule.



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