Insights

Here's what risk managers and insurance professionals need to know.                                                                                                                                                                                                        

When Will the Change Process Start?

It should surprise no one following President Biden's career that his administration would be keenly interested in Title IX. The author of the original Violence Against Women Act, Biden took an active role in the Obama administration's work on campus sexual assault. But his interest was likely heightened in response to the controversies surrounding the Trump administration's 2020 Title IX Final Rule. Biden promised a "quick end" to the 2020 Regulations during his campaign, but regulatory change is complex and lengthy. That process is underway, and the Department of Education expects to issue a Proposed Rule in April 2022 (as of this writing, the Proposed Regulations were just transmitted to the Office of Information and Regulatory Affairs [OIRA] for review).

Nobody Knows Precisely What the Changes Will Be

A team of deeply experienced professionals now leads the Department of Education's (ED) Office for Civil Rights (OCR). They have engaged in a listening tour and received public comment and testimony, but have been tight-lipped about their intentions. Unlike during the 2017-2020 process, we have not seen any leaked documents and conversations, and OCR appears likely to continue down this path. Collectively, we will have to wait and see what comes through the process.

There Will Be No Immediate Change

While interesting to people like me, Proposed Regulations require no immediate action. They are not binding and merely open a public comment period. Last time, ED provided a bit more than 60 days to provide comments, and we can expect that timeline, or even a longer window, this time. ED received over 120,000 comments before, and the process demands that each one is read, analyzed, and categorized. Once the comment period ends, ED must review each comment and write the new Final Rule along with a Preamble to explain and justify the decisions. The Preamble issued in 2020 was itself about 2,000 double-spaced pages, and that level of detail helped ED weather several lawsuits challenging the Rule.

The Changes May Not Be Revolutionary

While activists have called for major changes and a complete rewrite of the Trump administration's Final Rule, we are just as likely to see Regulations that are not a wholesale revamp, but work within the boundaries of the 2020 Final Rule. Adding to the likelihood of a middle-of-the-road outcome is that many aspects of the 2020 Final Rule are uncontested across the political spectrum, giving the Biden administration little political incentive to change them. Further, each change requires justification and opens the administration to litigation, raising the cost of changes.

Some areas to watch include:

• Cleanup of the detailed notice and evidence provisions. The 2020 Final Rule included requirements on providing notice and access to evidence that exceed due process standards, and these may be modified to include different expectations for public colleges bound to Constitutional due process and private colleges, which are not.
  
  
• Changes to the hearing requirement for private colleges. Historically, due process did not require a formal hearing at non-governmental institutions, but the 2020 Final Rule required hearings for all public and private colleges, while making them optional for K-12 and other institutions. ED might review this requirement.
  
  
• Changes to cross examination. Direct cross examination by the advisor of choice, with a ban on use of statements that were not subjected to such cross examination, was among the most controversial elements of the 2020 Final Rule. A July 2021 federal court decision vacated the part of the Rule that said institutions could not use uncrossed statements. But the requirement to subject parties and witnesses to direct, live cross examination in postsecondary hearings remains. Due to court decisions, certain institutions (such as those in the 6th Circuit) must use live cross examination regardless; other Circuits do not so require. The Biden administration may take a silent approach, allowing public and private institutions to look to Constitutional due process and judicial precedent to determine where live cross examination is required and where another approach, such as cross examination through a panel or hearing officer, is appropriate.
  
  
• Definitions and coverage. The 2020 Title IX Final Rule declined to specifically include gender identity and sexual orientation in the definition of sex. Following the Bostock Supreme Court decisions, ED issued a Notice of Interpretation stating that Title IX prohibits discrimination on the basis of sexual orientation and gender identity. While no one knows for sure, my sense is that ED has signaled an intention to make clear in Regulations that Title IX protections cover sexual orientation and gender identity. For a deep dive discussion of the salient issues, see this session from the 2020 SPECTRUM conference.

There Will be Time to Implement

Reviewing the comments and writing the Final Rule may take a year or more, and will be followed by an implementation period. In 2020, that timeline was a mere 100 days (May – August 2020) and unfolded amid a global pandemic. While they have not committed to anything, my conversations with officials lead me to believe that we will see a more standard implementation timeline when these Regulations are finalized, giving institutions more time to come into compliance with less panic. Several resources, including URMIA, will be there to provide guidance and assistance to institutions considering the new requirements.

Bottom line, we will not see changes for the 2021-2022 academic year and are unlikely to see changes required to be implemented for the 2022-2023 academic year.

Red Title IX, Blue Title IX

A major challenge for higher education professionals, including those who manage risk and insure against damages in claims, is the balkanization of rules surrounding sex discrimination and misconduct among states. States have taken very different approaches to legislating and litigating that are often tied to the political party of those making decisions. This leads to additional complications in implementing policies and procedures and can increase risk. URMIA professionals should be mindful of the federal requirements, as well as those in their federal court circuit and their state, in working with Title IX and others to meet the requirements and best serve students and community members.

Conclusion

Change is coming again to Title IX, but the change may be more tempered than last time, and institutions are nearly certain to have more time to review, consider, and implement thoughtful policies for their communities.