A Former Regulator’s Read of the 2024 Title IX Regulations

June 7, 2024

The revision of the Title IX regulations by the U.S. Department of Education on April 19 sparked a number of news and legal articles immediately after their release. As a former regulatory officer responsible for drafting (state-level) education regulations and responding to public comments, I read many articles about regulations that I have previously worked on. Many of them provided broad strokes about what the quoted individuals believe the regulations do, without telling you what the regulations say. This may be enough for the general public. But for legal practitioners, the text of the rule (not the individual impressions of readers) is the first step for interpreting it. See Consol Pennsylvania Coal Company, LLC v. Federal Mine Safety and Health Review Commission, 941 F.3d 95 (3rd Cir. 2019) (“Our pole star is the principle that, if a statute or rule is unambiguous, we must give effect to its plain meaning”) (citing Kisor v. Wilkie, 588 U.S. 558 (2019)). If that fails, the beautiful thing about regulations is that commenters write in, and the regulators must explain and respond to “relevant” and “significant” public comments, “which, if true … would require a change in an agency’s proposed rule.” See American Mining Congress v. U.S. Environmental Protection Agency (EPA), 907 F.2d 1179 (D.C. Cir. 1998); Public Citizen v. Federal Aviation Administration (FAA), 988 F.2d 186 (D.C. Cir. 1993). Thus, the text issued by the regulator usually provides a roadmap to understand how or why the rule was drafted in a particular way.

By now Title IX practitioners, who may not necessarily have started out as administrative lawyers, will be familiar with the principles of rule interpretation in light of the many pages in the federal register entries for the 2020 and 2024 regulations. To save you the trouble, my own deep dive into the text yielded the following notable provisions that have perhaps skirted the headlines, but that a Title IX practitioner should know:

On Evidence:

Any distinction between “relevant” evidence and “directly related” evidence in the grievance procedures in the 2020 rule will be eliminated in the 2024 rule and “relevant” will be used throughout. This is crucial to the interpretation of the regulations because the evidence provided to parties to review and respond to throughout the grievance procedures in Section 106.45 and new Section 106.46 is “relevant” and “not otherwise impermissible evidence” rather than “directly related” evidence. (Compare 106.45(b)(5)(6) (effective through July 31, 2024) with Section 106.45(f)(2) and Section 106.46(e)(6)(i) (effective Aug. 1, 2024); See also Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 89 Fed. Reg. 33,524 (Apr. 29, 2024) (declining to retain the current regulations’ distinction between providing parties access to evidence “directly related to” allegations of sexual harassment while requiring a recipient only to include “relevant” information in an investigative report or hearing) and 89 Fed. Reg. 33,696 (further comment and response on “directly related” and “relevant”)).

Rather than interspersing references to three categories of excluded evidence in different paragraphs, the 2024 regulations will import and summarize them in the 2020 regulations into one new paragraph. Those three buckets are as follows:

  • Evidence that is protected under a privilege as recognized by federal or state law or evidence provided to a confidential employee, unless that privilege is waived. (Compare 34 C.F.R. Section 106.45(b)(1)(x) with 34 C.F.R. 106.45(b)(7)(i) (effective Aug, 1, 2024)).
  • A party’s or witness’ records that are maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the party or witness, unless voluntary written consent is obtained. (Compare, 34 C.F.R. Section 106.45(b)(5)(i) with 34 C.F.R. Section 106.45(b)(7)(ii) (effective Aug. 1, 2024).
  • Evidence about the complainant’s sexual interests or prior sexual conduct are not relevant unless a particular exception applies. (Compare, e.g. 34 C.F.R. Section 106.45(b)(1)(iii), (b)(5)(i)) and (b)(6)(i) with 34 C.F.R. Section 106.45(b)(7)(iii)).

Because the rule carries over three similar buckets of impermissible evidence, this may seem like a distinction without a difference. But the reorganization clarifies and streamlines the evidence rules applicable to Title IX grievance procedures in a way that will be usable to its readers.

Review of Evidence and Investigation Reports:

The 2020 regulations require that, prior to the completion of the investigative report, the recipient must send the “directly related” evidence to their parties for a 10-day review and response. See 34 C.F.R. Section 106.45(b)(5)(vi) (effective until July 31, 2024). Then the recipient must send the investigative report to the parties for a 10-day period of review and response. See 34 C.F.R. Section 106.45(b)(5)(vi) (effective until July 31, 2024).

The 2024 regulations will provide for a generally applicable grievance procedure for Title IX complaints (34 C.F.R. Section 106.45 (effective Aug. 1, 2024)), and a grievance procedure incorporating Section 106.45 with modifications for complaints at a postsecondary institution with a student complainant or respondent. (34 C.F.R. Section 106.46 (effective Aug. 1, 2024)). The rule will no longer require the provision of both the evidence and the provision of the investigation report and a response to both. For grievance procedures not involving postsecondary students, the recipient must provide an opportunity for parties to review “relevant” and “not otherwise impermissible” evidence or an accurate description of the evidence, with the evidence available to the parties upon request. For the grievance procedures applicable to postsecondary students, the institution must provide such evidence or a written investigative report that accurately summarizes the evidence to the parties, with the evidence available to the parties and their advisors upon request. Instead of a 10-day period of review and response to both, the parties are entitled to “a reasonable opportunity to review and respond to the evidence,” or the investigative report, if provided. (34 C.F.R. Section 106.45(f)(4)(ii) and Section 106.46(e)(6)(ii)).

Continuing Rules (at Least in Part):

Also skirting the headlines are rules that will continue, at least in part, in the 2024 regulations:

  • Burden is on the Recipient: The regulations will reaffirm that the “burden” in these grievance processes falls on the Title IX recipient, and not on the parties. (Compare 34 C.F.R. Section 106.45(b)(5)(i) (effective until July 31, 2024) with 34 C.F.R. Section 106.45(f)(1)).
  • Advisers: Parties who are postsecondary students retain the right to have an adviser of their choice, who may or may not be, but is not required to be, an attorney. The choice or presence of the adviser for the complainant or respondent is still not to be limited in any meeting or proceeding, and the recipient may still “establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties.” (Compare 34 C.F.R. Section 106.45(b)(5)(iv) (effective through July 31, 2024) with 34 C.F.R. Section 106.46(e)(2) (effective Aug. 1, 2024)).

As with the 2020 regulations, we will likely not find out if particular provisions will endure until they become effective on Aug. 1, 2024, recipients implement them, and the results of implementation are challenged in the courts. See, e.g. Victim Rights Law Center v. Cardona, 552 F.Supp.3d 104 (D. Mass. July 28, 2021). Until then, we and our clients can start with the text of the rule.

 

Reprinted with permission from the June 6, 2024 edition of the Legal Intelligencer© 2024 ALM Media Properties, LLC. All rights reserved.

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