The new year is a time for reflection and also for making resolutions and predictions about what 2022 will bring. In the world of higher education, it is a very safe prediction that 2022 will bring the promised rule changes to the Title IX regulations concerning sexual harassment discrimination and institution’s required procedures to address it.
In March 2021, President Biden issued an executive order for the Office of Civil Rights (OCR) to conduct a comprehensive review of the existing regulations (particularly those that took effect in August 2020), and shortly thereafter, OCR promised to publish a notice of proposed rulemaking to amend those regulations.
Over the summer, OCR chipped away at the regulations in response to a court ruling, and now OCR effectively permits institutions to consider statements made by parties or witnesses, even if they do not participate in cross examination at a live hearing. However, OCR left the remaining regulations intact.
On December 10, 2021, the Department of Education filed its Fall 2021 Regulatory Agenda and Regulatory Plan that confirmed the Department’s plans to issue the notice of proposed rulemaking in April 2022. The rulemaking is “necessary to align the Title IX regulations with the priorities of the Biden-Harris Administration…” This means the notice is arriving a month earlier than indicated by previous plans. In a statement, Assistant Secretary for Civil Rights Catherine E. Lhamon said this “reflects the Department’s commitment to work as speedily as possible toward appropriate and effective regulation in recognition of the importance of … addressing the threat to equal access posed by all forms of sex discrimination, including sexual harassment.”