On June 23, 2022, in celebration of the 50th anniversary of Title IX – the landmark civil rights law that has opened doors for generations of women and girls – the U.S. Department of Education (USDE) released for public comment proposed changes to the regulations that help elementary and secondary schools and colleges and universities implement this vital legislation. The proposed amendments will restore crucial protections for students who are victims of sexual harassment, assault, and sex-based discrimination – a critical safety net for survivors that was weakened under previous regulations. The proposed regulations will advance educational equity and opportunity for women and girls across the country to ensure that every student in America, from kindergarten through a doctorate degree, can achieve her dreams. In addition, LGBTQ and pregnant students, as well as pregnant employees, would for the first time be protected under Title IX regulations, the USDE announced in releasing its much-awaited Title IX proposed rules. 

“Over the last 50 years, Title IX has paved the way for millions of girls and women to access equal opportunity in our nation’s schools and has been instrumental in combating sexual assault and sexual violence in educational settings,” said U.S. Secretary of Education Miguel Cardona.  “As we celebrate the 50th Anniversary of this landmark law, our proposed changes will allow us to continue that progress and ensure all our nation’s students – no matter where they live, who they are, or whom they love – can learn, grow, and thrive in school.  We welcome public comment on these critical regulations so we can further the Biden-Harris Administration’s mission of creating educational environments free from sex discrimination and sexual violence.”

According to the USDE’s press release, the proposed regulations will advance Title IX’s goal of ensuring that no person experiences sex discrimination, sex-based harassment, or sexual violence in education. As the Supreme Court wrote in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), it is “impossible to discriminate against a person” on the basis of sexual orientation or gender identity without “discriminating against that individual based on sex.” The regulations will require that all students receive appropriate supports in accessing all aspects of education. They will strengthen protections for LGBTQI+ students who face discrimination based on sexual orientation or gender identity. And they will require that school procedures for complaints of sex discrimination, including sexual violence and other sex-based harassment, are fair to all involved.  The proposed regulations also reaffirm the Department’s core commitment to fundamental fairness for all parties, respect for freedom of speech and academic freedom, respect for complainants’ autonomy, and clear legal obligations that enable robust enforcement of Title IX.

The proposed regulations would:
-Clearly protect students and employees from all forms of sex discrimination.
-Provide full protection from sex-based harassment.
-Protect the right of parents and guardians to support their elementary and secondary school children.
-Require schools to take prompt and effective action to end any sex discrimination in their education programs or activities – and to prevent its recurrence and remedy its effects.
-Protect students and employees who are pregnant or have pregnancy-related conditions.
-Require schools to respond promptly to all complaints of sex discrimination with a fair and reliable process that includes trained, unbiased decisionmakers to evaluate the evidence.
-Require schools to provide supportive measures to students and employees affected by conduct that may constitute sex discrimination, including students who have brought complaints or been accused of sex-based harassment.
-Protect LGBTQI+ students from discrimination based on sexual orientation, gender identity, and sex characteristics.
-Clarify and confirm protection from retaliation for students, employees, and others who exercise their Title IX rights.
-Improve the adaptability of the regulations’ grievance procedure requirements so that all recipients can implement Title IX’s promise of nondiscrimination fully and fairly in their educational environments.
-Ensure that schools share their nondiscrimination policies with all students, employees, and other participants in their education programs or activities.

The USDE will engage in a separate rulemaking to address Title IX’s application to athletics.

The USDE’s comprehensive review of its Title IX regulations began in March 2021, as directed by Executive Order 14021 – Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity. The USDE has sought public input throughout that process.  Over the last year, the USDE has heard from a wide variety of stakeholders, including students, parents, and educators in elementary, secondary, and postsecondary schools, state government representatives, advocates, lawyers, researchers, and other stakeholders through the Title IX nationwide virtual public hearing in June 2021 convened by the Office for Civil Rights (OCR) and in numerous listening sessions and meetings.  This input, together with careful review of federal case law and OCR’s enforcement work under Title IX, highlighted the need to revise the current regulations to protect more fully against sex discrimination in all education programs and activities receiving federal financial assistance.

“The proposed regulations reflect the USDE’s commitment to give full effect to Title IX, ensuring that no person experiences sex discrimination in education, and that school procedures for addressing complaints of sex discrimination, including sexual violence and other forms of sex-based harassment, are clear, effective, and fair to all involved,” said Catherine E. Lhamon, Assistant Secretary for Civil Rights.

The USDE’s proposed Title IX regulations will be open for public comment for 60 days from the date of publication in the Federal Register.

Additional information on the proposed rule, including a summary with background information and a fact sheet, is available here.

The unofficial version of the proposed rule is available here.

On Wednesday, June 22, 2022, the U.S. House Appropriations Committee released the draft fiscal year 2023 Labor, Health and Human Services, Education, and Related Agencies funding bill, which will be considered in subcommittee on June 23rd. The legislation funds agencies and programs in the Departments of Health and Human Services, Labor, and Education.

According to a press release, for 2023, the bill provides $242.1 billion, an increase of $28.5 billion – 13 percent – above 2022. With this historic increase, the legislation:

• Creates and sustains good-paying American jobs through investments in job training, apprenticeship programs, and worker protection
• Grows opportunity with major investments in education, including significant funding for high-poverty schools and students with disabilities, and strong increases for programs that expand access to post-secondary education
• Bolsters our public health infrastructure with more resources for the Centers for Disease Control and Prevention and for states and local governments to strengthen infrastructure and capacity
• Strengthens lifesaving biomedical research with increased funding for the National Institutes of Health, as well as increased funding for the Advanced Research Projects Agency for Health
• Supports middle class and working families with increased funding for child care, Head Start, and preschool development grants
• Advances equal treatment for women by increasing funding for the range of health services, including family planning, covered by Title X and repealing the discriminatory Hyde Amendment
• Addresses our nation’s most urgent health crises, including maternal health, mental health, gun violence, and substance misuse, while making strides to reduce persistent and unacceptable health disparities

The text of the draft bill can be viewed by clicking here. The subcommittee markup will be webcast live and linked on the House Committee on Appropriations website.

U.S. Department of Education (USDE) – According to a summary of the bill, it provides a total of $86.7 billion in discretionary appropriations for USDE, an increase of $10.3 billion above the FY 2022 enacted level. Of this amount, the bill includes:

• K-12 Education, including Individuals with Disabilities Education Act programs—The bill provides $50.9 billion, an increase of $8.3 billion over the fiscal year 2022 enacted level. Within this amount, the bill provides:
  • $20.5 billion for Title I Grants to Local Educational Agencies, an increase of $3 billion above the FY 2022 enacted level.
  • $17.8 billion for Special Education, an increase of $3.2 billion above the FY 2022 enacted level. The amount includes:
    • $16.3 billion for Part B Grants to States, an increase of $2.9 billion above the FY 2022 enacted level, and
    • $35 million for Special Olympics education programs, an increase of $4 million above the FY 2022 enacted level.
  • $1 billion for English Language Acquisition, an increase of $169 million above the FY 2022 enacted level.
  • $2.3 billion for Supporting Effective Instruction State Grants (Title II-A), an increase of $100 million above the FY 2022 enacted level.
  • $1.4 billion for Student Support and Academic Enrichment State Grants, an increase of $75 million above the FY 2022 enacted level.
  • $1.4 billion for Nita M. Lowey 21st Century Community Learning Centers, an increase of $120 million above the FY 2022 enacted level.
  • Continued support for a Social and Emotional Learning (SEL) Initiative to support SEL and “whole child” approaches to education. Within this amount, the bill provides:
    • $132 million, an increase of $50 million over the FY 2022 enacted level, for grants for evidence-based, field-initiated innovations that address student social, emotional, and cognitive needs within the Education Innovation and Research program;
    • $90 million, an increase of $5 million over the FY 2022 enacted level, for the Supporting Effective Educator Development (SEED) program with a priority for teacher professional development and pathways into teaching that provide a strong foundation in child development and learning, including skills for implementing SEL strategies;
    • $1 billion within School Safety National Activities for Mental Health Services Professional Demonstration Grants and School-Based Mental Health Services Grants to help LEAs directly increase the number of mental health and child development experts in schools; and
    • $468 million, an increase of $393 million over the FY 2022 enacted level, for Full-Service Community Schools to provide comprehensive services and expand evidence-based models that meet the holistic needs of children, families, and communities.
• Career, Technical and Adult Education—The bill provides $2.2 billion for Career, Technical and Adult Education, an increase of $124 million above the FY 2022 enacted level. This amount includes:
  • $1.4 billion for CTE State Grants, an increase of $45 million above the FY 2022 enacted level, and
    • $132 million for Teacher Quality Partnerships, an increase of $73 million above the FY 2022 enacted level.

A press release with a summary of the draft fiscal year 2023 Labor, Health and Human Services, Education, and Related Agencies bill can be viewed by clicking here.