U.S. Department of Education Releases Proposed Title IX Rewrite

On June 23, 2022, the 50th Anniversary of the Title IX statute, the U.S. Department of Education released the Notice of Proposed Rulemaking (“NPRM”) for the Title IX rule. The proposed rule is expected to be published in the Federal Register on June 27, 2022. Following publication, interested parties will have 60 days to submit public comment. 

First, the Department proposed to amend Title IX regulations to:
Require recipients to adopt grievance procedures that provide for the prompt and equitable resolution of complaints of sex discrimination and take other necessary steps to provide an educational environment free from sex discrimination;
Clarify the Department’s view of the scope of Title IX’s prohibition on sex discrimination, including related to a hostile environment under the recipient’s education program or activity, as well as discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; and
Clarify a recipient’s obligations to students and employees who are pregnant or experiencing pregnancy-related conditions.

With regard to sex-based harassment, the proposed regulations would:
Define sex-based harassment to include but not be limited to sexual harassment;
Provide and clarify, as appropriate, definitions of various terms related to a recipient’s obligations to address sex discrimination, including sex-based harassment;
Clarify how a recipient is required to take action to end any sex discrimination that has occurred in its education program or activity, prevent its recurrence, and remedy its effects; and
Clarify a recipient’s obligations related to the grievance procedures and other necessary steps when it receives a complaint of sex discrimination. 

With regard to discrimination against individuals who are pregnant or parenting, the proposed regulations would:
Define the term “pregnancy or related conditions” and the term “parental status,” and prohibit discrimination against students and applicants for admission or employment on the basis of current, potential, or past pregnancy or related conditions; and
Clarify a recipient’s obligations to students and employees who are pregnant or experiencing related conditions. 

In addition, the proposed regulations would:
Articulate the Department’s understanding that sex discrimination includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity;
Clarify and streamline administrative requirements with respect to designating a Title IX Coordinator, disseminating a nondiscrimination notice, adopting grievance procedures, and recordkeeping;
Specify that a recipient must train a range of relevant persons on the recipient’s obligations under Title IX;
Clarify that, unless otherwise provided by Title IX or the regulations, a recipient must not carry out any otherwise permissible different treatment or separation on the basis of sex in a way that would cause more than de minimis harm, including by adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity; and
Clarify a recipient’s obligation to address retaliation.

Duane Morris is in the process of reviewing the proposed rule in detail and will prepare bullet points and a full summary in the coming days.

The Federal Motor Carrier Safety Administration Waives Certain Skills Test Requirements for School Bus Drivers

On Tuesday, January 4, 2022, the Federal Motor Carrier Safety Administration (FMCSA), in coordination with the Department of Education, announced that it was relaxing certain standards of the commercial driver’s license (CDL) skills test for school bus driver applicants. Specifically, the action would give States the option to temporarily waive one provision of the skills test that requires applicants to identify the “under the hood” engine components. Effective January 3, 2022, this temporary waiver expires on March 31, 2022. The remaining elements of the test (outlined in 49 CFR 383.113(a)(1)(ii-ix) remain effective. Continue reading “The Federal Motor Carrier Safety Administration Waives Certain Skills Test Requirements for School Bus Drivers”

U.S. Department of Education Negotiated Rulemaking – Session One Recap: Part Three

To close out this series of summaries of the first session of Negotiated Rulemaking, today UpdateEd looks at the U.S. Department of Education’s proposed changes to regulations regarding pre-dispute arbitration and class action waivers. We will also analyze the “neg reg” session as a whole.

As identified in the Department’s issue paper (see here), the proposed changes to pre-dispute arbitration and class action waivers are very significant, constituting a return to the 2016 BDR rule’s prohibitions as well as the addition of new provisions. Proposed changes are as follows. Continue reading “U.S. Department of Education Negotiated Rulemaking – Session One Recap: Part Three”

U.S. Department of Education Negotiated Rulemaking – Session One Recap: Part Two

Yesterday, October 14, 2021, UpdateED published the first of a three-part recap of last week’s U.S. Department of Education Negotiated Rulemaking Session, focusing on the proposed Borrower Defense to Repayment provisions. (see here)

Up today: the proposed changes to Closed School Loan Discharges (CSLD) and False Certification Discharges (FCD). Continue reading “U.S. Department of Education Negotiated Rulemaking – Session One Recap: Part Two”

U.S. Department of Education Negotiated Rulemaking – Session One Recap

On Friday, October 8, 2021, the U.S. Department of Education wrapped up its first week-long session of the (virtual) Affordability and Student Loan Negotiated Rulemaking. The Department’s agenda (see here) kicked off with a discussion of each of the twelve issue papers, some with proposed regulatory language, provided to the committee prior to the beginning of the sessions. Continue reading “U.S. Department of Education Negotiated Rulemaking – Session One Recap”

U.S. Department of Education Announces 90/10 Rulemaking

On October 4, 2021, the Department announced their intention to conduct negotiated rulemaking on the 90/10 rule pursuant to the provisions in Section 2013 of the American Rescue Plan Act of 2021 (“ARPA”). The Department also announced two public hearings for interested parties to provide comment.

Section 2013 of the American Rescue Plan Act of 2021 (ARP) amended HEA section 487(a)(24) to require that a proprietary institution derive at least 10 percent of its revenues from sources that are not Federal education assistance funds. Federal education assistance funds are “Federal funds that are disbursed or delivered to or on behalf of a student to be used to attend such institution.” Section 2013(c)(2) of the ARP provides that regulations developed and published on 90/10 by the Department will not be effective until on or after January 1, 2023.

The notice further indicates that the Department intends to develop proposed regulations affecting institutional and programmatic eligibility, including the 90/10 rule.   This language leaves open the possibility that the committee may consider additional regulatory changes. The scheduled public hearings, however, are limited to comments on 90/10. They will announce the topics and schedule of committee meetings in a subsequent Federal Register notice. Continue reading “U.S. Department of Education Announces 90/10 Rulemaking”

Court Ruling Impact on Title IX Regulations

On July 28, 2021, a federal district court in Massachusetts issued a decision in Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021).  This case was brought by organizations and individuals challenging the 2020 amendments to the Title IX regulations.

Most of the amendments plaintiffs challenged were upheld by the Court. However, the Court determined that one part of 34 C.F.R. § 106.45(b)(6)(i) (live hearing requirement at postsecondary institutions) was arbitrary and capricious. Therefore, the Court vacated the part of the provision that prohibits a decision-maker from relying on statements not subject to cross-examination at the live hearing.

On August 24, 2021, the Department issued guidance stating that it would immediately cease enforcement of 34 C.F.R. § 106.45(b)(6)(i) regarding the prohibition against statements not subject to cross-examination.  The Department’s non-enforcement position allows for decision-makers at postsecondary institutions to now consider statements made by the parties and witnesses during the investigation regardless of whether they submit to cross-examination at the live hearing. Institutions may now consider emails or text exchanges between the parties leading up to the alleged sexual harassment and statements about the alleged sexual harassment that satisfy the regulation’s relevance rules without submitting to cross-examination. A decision-maker at a postsecondary institution may also consider police reports, Sexual Assault Nurse Examiner documents, medical reports, and other documents even if those documents contain statements of a party or witness who is not cross-examined at the live hearing.

The Department’s resources will be updated to reflect the Court’s decision.

Supreme Court Denies Student Request to Block University Vaccine Mandate

On August 12, the Supreme Court of the United States denied eight students’ request to block Indiana University’s requirement that students be vaccinated against the coronavirus. Justice Amy Coney Barrett rejected the request without comment, without seeking a response from the state and without referring the request to the full court for a vote. Justice Barrett’s denial indicates the court’s belief that the students’ challenge was not a particularly close case.

To read the full text of this Duane Morris Alert, please visit the firm website.

Duane Morris Analyzes USDE’s Notice Establishing Negotiated Rulemaking Committee and First Round of Negotiation Topics

On August 6, 2021, the U.S. Department of Education (USDE) announced that it would be establishing a negotiated rulemaking committee, entitled the “Affordability and Student Loans Committee,” that will, starting in October, meet to begin rewriting certain Title IV-related regulations. The announcement also included a schedule for the virtual negotiation sessions and instructions on how to submit nominations for committee, subcommittee, and advisor spots. The full announcement, officially published on August 10, can be found here.

Continue reading “Duane Morris Analyzes USDE’s Notice Establishing Negotiated Rulemaking Committee and First Round of Negotiation Topics”

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

Proudly powered by WordPress