Proposed Title IX Regulatory Changes

December 10, 2018

 

On November 29, 2018, the Department of Education proposed amendments to the regulations implementing Title IX of the Education Amendments of 1972 (Title IX). At issue for most NAFSAns is to what extent the proposal would modify a school's Title IX obligations in the study abroad context. This proposal would modify only Title IX compliance, not Clery Act compliance.

Read the Proposed Rule

"Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance"

83 FR 61462 (November 29, 2018).

Comment Deadline

There is a 60-day comment period. Public comments are due on or before January 28, 2019, and can be made through the Federal eRulemaking Portal on Regulations.gov, via postal mail, commercial delivery, or hand delivery.

Before responding on behalf of your institution be certain that you have the authority to do so. Institutions often have specific offices or officers responsible for communicating with federal agencies on behalf of the institution.

Sources

The Title IX Statute - 20 USC §1681

Begin by reviewing the Title IX statutory provision, which remains unchanged. The language of a statute can only be changed through the legislative process, which requires approval by both houses of Congress and a signature by the president. The proposed Department of Education regulation seeks to interpret and apply this statutory provision.

§1681. Sex

(a) Prohibition against discrimination; exceptions

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,

Proposed Regulation Change - adding 34 CFR 106.8(c)-(d)

A regulation is promulgated by a federal agency on a matter within the scope of its authority, in accordance with the public notice and comment provisions of the Administrative Procedure Act (APA). In its proposed rule at 83 FR 61462 (November 29, 2018), one item on which the Department of Education seeks public comments is its plan to add the following new paragraphs to Title 34, Section 106.8, of the Code of Federal Regulations (CFR). You can see the current version of 34 CFR 106.8 in the eCFR. As you will see, the current version of that section has only two subparagraphs, (a) and (b). In addition to other changes, the proposal would add these two new subparagraphs:

(c) Adoption of grievance procedures. A recipient must adopt and publish grievance procedures that provide for the prompt and equitable resolution of student and employee complaints alleging any action that would be prohibited by this part and of formal complaints as defined in § 106.30. A recipient must provide notice of the recipient's grievance procedures, including how to report sex discrimination and how to file or respond to a complaint of sex discrimination, to students and employees.

(d) Application. The requirements that a recipient adopt a policy and grievance procedures as described in this section apply only to exclusion from participation, denial of benefits, or discrimination on the basis of sex occurring against a person in the United States.

Impact on Study Abroad?

At issue for most NAFSAns is to what extent the proposal would modify a school's Title IX obligations in the study abroad context. More precisely, whether the requirements to "adopt a policy" and "publish grievance procedures" would apply to students, staff, and faculty while outside the United States, given that proposed 34 CFR 106.8(d) is worded to apply these obligations only to actions "occurring against a person in the United States."

Language in the Preamble Relevant to Title IX Obligations in the Study Abroad Context

In the preamble to the proposed rule, the Department of Education talks about its rationale for the changes being proposed. Here are the relevant extracts from the preamble related to the "in the United States" language.

  • "the Department wishes to clarify that Title IX's “education program or activity” language should not be conflated with Clery Act geography; these are distinct jurisdictional schemes, though they may overlap in certain situations."
  • "Importantly, nothing in the proposed regulations would prevent a recipient from initiating a student conduct proceeding or offering supportive measures to students who report sexual harassment that occurs outside the recipient's education program or activity (or as to conduct that harms a person located outside the United States, such as a student participating in a study abroad program)."
  • "Notably, there may be circumstances where the harassment occurs in a recipient's program or activity, but the recipient's response obligation is not triggered because the complainant was not participating in, or even attempting to participate in, the education programs or activities provided by that recipient."
  • "Title IX states generally that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance, 20 U.S.C. 1681(a), but does not specifically mention sexual harassment."
  • "We propose adding paragraph (b)(4), which states that where paragraphs (b)(1) through (3) are not implicated, a recipient with actual knowledge of sexual harassment in its education program or activity against a person in the United States must, consistent with paragraph (a), respond in a manner that is not deliberately indifferent. A recipient is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of the known circumstances."
  • "Proposed § 106.8(d) would clarify that the recipient's code of conduct and grievance procedures apply to all students and employees located in the United States with respect to allegations of sex discrimination in an education program or activity of the recipient. The statutory language of Title IX limits its application to protecting “person[s] in the United States.” 20 U.S.C. 1681(a)."
Please note, we focus here only on the question of how the proposed changes might impact Title IX compliance in the study abroad context. The proposed changes go beyond the "in the United States" language, however, and also include proposed changes to Title IX compliance for programs and activity that take place within the United States.