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Sweeping Changes Proposed for Federal Title IX Legislation

Client Alert
June 24, 2022

June 23, 2022, marked the 50th anniversary of Title IX — the federal civil rights legislation enacted to protect students from sex-based discrimination in educational programs and activities that receive federal financial assistance. The anniversary was further marked by an announcement from the Biden administration of its intent to overhaul the landmark law, in part, by reinstating certain provisions removed, or otherwise modified, by the former administration.

In conjunction with the Department of Education, President Biden announced the proposed amendments to Title IX would have the impact of advancing “educational equity and opportunity”[1] for students across the country including, without limitation, those in the LGBTQIA+ community.  Specifically, the revised regulations are anticipated to clarify Title IX’s text to extend protections to students on the basis of sexual orientation, gender identity, and sex characteristics and, moreover, extend protection to both students and employees who are pregnant and/or have pregnancy-related condition(s).

The proposed amendments would also require schools to respond promptly to all complaints of sex discrimination with a fair and reliable process that includes trained, unbiased Title IX coordinators, investigators, and decisionmakers to evaluate the evidence. Notably, the proposals would effectively remove the requirement that schools wait for a formal complaint prior to acting — thereby allowing schools to investigate and sanction sexual misconduct complaints more promptly. The proposals also allow informal resolution of an incident without the submission of a formal complaint (a formal complaint is a prerequisite under the current regulations).

Moreover, following investigation, decisionmakers may soon be subject to a revised, heightened threshold for standard of proof based on the evidence — the clear and convincing evidence standard, meaning that the evidence presented must be “highly” and substantially more probable to be true rather than untrue — depending on what standard the school uses in other comparable proceedings.

In addition to the above, the proposed regulations are generally intended to strengthen protections from retaliation for those who exercise Title IX rights, require schools to engage in and/or offer supportive measures to parties involved in Title IX actions, and improve the adaptability of the Title IX framework to be applied fully and fairly in all educational environments.

The proposed regulations also revert the definition of sexual harassment back to “unwelcome sex-based conduct that creates a hostile environment by denying or limiting a person’s ability to participate in a school’s education program or activity. This would impose significant changes to the current rule, which only prohibits unwelcome sex-based misconduct if it is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”

Practically speaking, the proposed regulations no longer require live hearings for Title IX investigations. This is a significant change from the August 2020 regulations, which directed higher education institutions to conduct live hearings with cross-examination following the investigation. Under the August 2020 regulations, a decisionmaker was prohibited from considering any statements of parties or witnesses that were not subject to cross-examination, and therefore not tested for credibility. Ultimately, the proposed regulations, by way of eliminating the live hearing requirement, could allow decisionmakers to consider more comprehensive evidence.

To the extent a live hearing is held, the proposed regulations also require higher education institutions to allow students who participate in the live hearing to do so remotely, if they so choose.

The proposed amendments will undergo a period of public comment for the next 60 days. The Education Department will then address each point in writing before the regulations can be finalized.

[1] See U.S. Department of Justice Press Release, “The U.S. Department of Education Releases Proposed Changes to Title IX Regulations, Invites Public Comment,” published June 23, 2022.

For additional information about the revised regulations, or how they may impact your institution, please reach out to one of Brennan, Manna & Diamond’s trained Title IX investigators and advisors, Monica Andress at mbandress@bmdllc.com, Krista Warren at kdwarren@bmdllc.com, Bryan Meek at bmeek@bmdllc.com, or Matt Duncan at mrduncan@bmdllc.com.

Monica Andresskrista warrenCivil RightsTitle IXLegislationBrennan Manna Diamond
Client Alert

Changes to FFCRA Paid Leave: Congress’ Revisions to Employment COVID-19 Leave Benefits Signals the Light is at the End of the Tunnel

December 28, 2020Late in the evening on December 27th, President Trump signed into law the government’s $900 billion COVID-19 relief package (the “Stimulus Bill”). Among other economic stimulus benefits, the Stimulus Bill contains the $600 stimulus checks that will be issued to eligible individuals as well as, relevantly, changes to the Families First Coronavirus Response Act (“FFCRA”). The FFCRA was implemented in April 2020 and provided benefits to individuals who missed work as a result of an actual or suspected COVID-19 illness or to care for a child when their school or childcare service was closed because of COVID-19. Importantly, the Stimulus Bill extends eligibility for employer payroll tax refunds for leave payments made to employees on or before March 31, 2021 under the FFCRA, signaling to the American people that Congress believes many of the employed public will be vaccinated by this time, the light at the end of the tunnel. However, the Stimulus Bill does contain a caveat that employers are no longer required to provide FFCRA leave benefits after December 31, 2020, but if they do, they will receive the payroll tax credits, up to the maximums provided in the FFCRA, for payments made prior to April 1, 2021. Below we provide a list of questions and answers we received to date following the passage of the Stimulus Bill. We expect the U.S. Department of Labor (“DOL”) to issue additional questions and answers as the Stimulus Bill is implemented, and we will update this Client Alert as these are received.Client Alert

Healthcare Speaker Programs: New OIG Alert

December 11, 2020In a rare Special Fraud Alert issued on November 16, 2020 (the “Alert”), the Office of Inspector General (“OIG”) urged companies who host speaker programs to reassess their programs in light of the “inherent risks” associated with these activities. The Alert reports that, in the last three years, drug and device companies have reported paying nearly $2 billion to health care professionals for speaker-related services.Client Alert

Value-Based Care Advances – CMS Issues New Final Rules for Stark and Anti-Kickback Statutes

December 11, 2020The Centers for Medicare & Medicaid Services (“CMS”) and the Department of Health and Human Services (“HHS”) Office of the Inspector General (“OIG”) issued two highly anticipated (and quite extensive) Final Rules to reform the Stark Law and Anti-Kickback Statute (“AKS”) regulations. The Final Rules generally take effect on January 19, 2021. The Final Rules include new safe harbors for the AKS and new exemptions to the Stark Law to allow for greater flexibility. According to the HHS, the goal of updating both laws is to make it easier for providers to engage in care coordination and value-based care programs without running afoul of the statutes. Please note that this client alert could not cover the full extent of the Final Rule changes so please contact your BMD Healthcare attorney with questions.Client Alert

Mandatory Filings Under CFIUS New Rules

December 11, 2020On September 15, 2020, the Committee on Foreign Investment in the United States (“CFIUS”) promulgated a final rule modifying its mandatory declaration requirements for certain foreign investment transactions involving “TID US businesses” (sensitive U.S. businesses dealing in critical technologies, critical infrastructure and sensitive personal data) dealing in “critical technologies” – i.e., U.S. businesses that produce, design, test, manufacture, fabricate, or develop one or more critical technologies. The new rule also makes amendments to the definition of the term “substantial interest” (used to determine whether a foreign government has a substantial interest in an entity). The final rule became effective on October 15, 2020.Client Alert

IRS Guidance on Employee Retention Credit

December 11, 2020The Employee Retention Credit created under Section 2302 of the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act is a refundable tax credit against certain employment taxes equal to 50 percent of the qualified wages an eligible employer pays to employees after March 12, 2020, and before January 1, 2021. Since the adoption of the CARES Act, employers have expressed concern that if one employer acquires another employer that previously received a PPP loan, the acquirer’s entire aggregated group may no longer be eligible to claim the Employee Retention Credit.
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