New Title IX Regulations

On June 23, 2022, the Department of Education released an unofficial version of new proposed regulation to replace the 2020 Title IX Final Rule. Any changes outlined in the draft regulations are just proposed at this time. TCNJ, specifically the Office of Title IX & Sexual Misconduct and the Office of General Counsel, will be closely reviewing the proposed regulations and will be prepared for any/all changes required of us under federal law, but no official action will be taken until the regulations have been finalized.

A relevant timeline of events around how Title IX has evolved up to today can be found below, along with a handbook that summarizes the requirements outlined in the 2020 Title IX Final Rule & what they mean for TCNJ, and some FAQs that you may have about the release of the new/former regulations. Additionally, to ensure that the TCNJ is informed of any changes made to campus procedures, updates & announcements will be shared on this page below and on our social media platforms. TCNJ’s Title IX & Sexual Misconduct staff are also available to answer any questions/concerns as well.

TCNJ’s Handbook on the New Title IX Final Rule

The Office of Title IX & Sexual Misconduct, in collaboration with TCNJ’s Student Government, have created the following comprehensive handbook to help the campus community understand both the requirements outlined within the 2020 Title IX Final Rule and how they impact TCNJ’s policies, practices, & procedures. The handbook can be viewed and downloaded through the button below. When the proposed 2022 Title IX regulations go into effect, we will update this handbook accordingly.

Download Handbook

Recent Developments & Relevant Timeline

June 23, 2022 – The Dept. of Ed. released the unofficial version of the proposed Title IX rule.
- Once the proposed rule is published in the Federal Register, it will be open for public comment for 60 days.
February 17, 2022 – The Dept. of Ed. sent the draft proposed amendments to the Dept.’s Title IX regulations to the Office of Information and Regulatory Affairs (OIRA) (which is the part of the Office of Management and Budget responsible for coordinating the review of all Executive Branch regulations)
August 24, 2021 – OCR issued a Letter to Students, Educators and Stakeholders.
- The letter is in response to the decision rendered in the Victim Rights Law Center et al. vs. Cardona case by a Massachusetts court.
- In accordance with the court’s order, the Department will immediately cease enforcement of the part of § 106.45(b)(6)(i) regarding the prohibition against statements not subject to cross-examination. Postsecondary institutions are no longer subject to this portion of the provision.
- In practical terms, a decision-maker at a postsecondary institution may now consider statements made by parties or witnesses that are otherwise permitted under the regulations, even if those parties or witnesses do not participate in cross-examination at the live hearing, in reaching a determination regarding responsibility in a Title IX grievance process.
June 16, 2021 – The Biden Administration released a Notice of Interpretation into the U.S. Federal Register to clarify that Title IX Prohibits discrimination based on sex, sexual orientation, and gender identity.
- The notice states, “Consistent with the Supreme Court’s ruling and analysis in Bostock, the Department interprets Title IX’s prohibition on discrimination “on the basis of sex” to encompass discrimination on the basis of sexual orientation and gender identity.”
April 7, 2021 – The United States Department of Education’s Office for Civil Rights (OCR) issued a Letter to Students, Educators and Stakeholders.
- The letter describes the steps that OCR will take to implement President Biden’s Executive Order (EO) 14021 Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.
- In the letter, OCR indicates that it will be holding a public hearing to solicit feedback on the experience of students, educators, and other stakeholders with the 2020 Title IX regulations, and should be offering opportunities for participation by oral comments and written submissions. OCR will publish notice of the hearing in the Federal Register and will then be holding the hearing at least one month after that notice. The hearing will be open to the public and may be held over several days depending on the number of people who seek to testify.
March 8, 2021 – the Biden Administration issued Executive Order 14021 – Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.
- EO 14021 directed the Department of Education (DOE) to “review all of its existing regulations, orders, guidance, and policies to ensure consistency with the Biden-Harris Administration’s policy that students be guaranteed education free from sexual violence. It also directs ED to specifically evaluate the Title IX regulation issued under the previous administration and agency action taken pursuant to that regulation, to determine whether the regulation and agency action are consistent with the policies of the Biden-Harris Administration.” The EO also noted the Administration’s policy that all students should be guaranteed an educational environment free from discrimination on the basis of sex “including discrimination on the basis of sexual orientation or gender identity.” The EO directs the Secretary of Education to consider taking additional enforcement actions consistent with this policy, including actions “to account for intersecting forms of prohibited discrimination that can affect the availability of resources and support for students who have experienced sex discrimination, including discrimination on the basis of race, disability, and national origin” and “to account for the significant rates at which students who identify as lesbian, gay, bisexual, transgender, and queer (LGBTQ+) are subject to sexual harassment.”
January 20, 2021 – The Biden Administration issued Executive Order 13988 – Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.
- This EO expands prohibited forms of sex discrimination under Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964 to include discrimination on the basis of gender identity and sexual orientation.
August 14, 2020 – Deadline for implementation of Final Title IX Rule.
May 6, 2020 – OCR released the Final Title IX Rule
February 15, 2019 – The comment period reopened to the public for a 24-hr period for those that had technical issues accessing the Federal eRulemaking Portal.
January 30, 2019 – The comment period ended with over 104,000 comments.
January 28, 2019 – The comment period was scheduled to end but due to technical issues was extended by two days.
November 29, 2018 – A draft of the proposed Title IX regulations were published for the public in the Federal Register and the 60-day comment period commenced. An associated 2017 Q&A was also released to provide clarity on the proposed regulations.
September 22, 2017 – Department of Education provided Q&A on Campus Sexual Misconduct, which was an interim guide for IHEs
September 7, 2017 – DeVos withdrew guidance from 2011 & 2014 DCLs
April 29, 2014 – OCR released the 2014 Q&A on Title IX and Sexual Violence (DCL)
April 4, 2011 – OCR released the 2011 DCL

*A more detailed timeline can be found on the Department of Education’s website.

Overview

In 1972 Title IX of the Education Amendments was enacted and was a way for the federal government to overtly recognize and prohibit discrimination on the basis of sex in public institutions that receive federal funding. “In the four decades following its enactment, no Title IX regulations have been promulgated to address sexual harassment as a form of sex discrimination; instead, the Department of Education has addressed this subject through a series of guidance documents” (U.S. Federal Register) disseminated by the Office of Civil Rights (OCR).

OCR, the body that enforces Title IX regulations, regularly publishes guidance through “Dear Colleague” letters (DCL) as a means of ensuring that institutions and the general public understand how the decisions, such as those around Title IX, apply to all institutions of learning, including institutions of higher education (IHEs) (Hepler, 2013; U.S. Department of Education, n.d.). These documents are essentially guidelines for institutions to follow, rather than a prescribed formula. Ultimately, they aim to offer insight on how IHEs can adjust their own policies and practices to enhance civil rights protections and uphold their legal obligations (U.S. Department of Education, n.d.).

Under President Barack Obama’s administration, there were targeted efforts that demonstrated a broad, comprehensive response to strengthen Title IX guidance and reduce violence against women, especially OCRs issuance of the pivotal 2011 DCL. The 2011 DCL placed IHEs on notice and demanded they do better to resolve students’ reports of sexual assault and protect their rights throughout the process. Additional guidance had also been issued in a 2014 DCL and Q&A, which offered further detail on how to maintain federal compliance.

Some perceived the guidance to be a step in the right direction and felt that it provided a means to hold IHEs accountable for mishandling Title IX cases while providing the motivation and support that IHEs needed to implement prompt and impartial processes to resolve incidents of sexual violence. While on the other hand, some felt that the Obama-era guidance lacked due process and inequitably favoring victims/survivors, which ultimately compromised the rights of the accused. Although the DCLs only aimed to offer recommendations, each has been interpreted by IHEs as though it was federal law. “To the extent that guidance was viewed as mandatory, the obligations set forth in previous guidance were issued without the benefit of notice and comment that would have permitted the public and all stakeholders to comment on the feasibility and effectiveness of the guidance” (U.S. Federal Register). Given the criticisms and since the guidance was being interpreted in this manner, the Trump administration felt as though the previous administration had overstepped its bounds and took steps to withdraw the DCL’s guidance.

On September 7, 2017, President Donald Trump’s Secretary of Education, Betsy DeVos, issued interim guidance which withdrew the guidance in the 2011 & 2014 letters and signaled a shift in policy when it came to federal enforcement of regulations governing campus sexual assault (Camera, 2017). Over a year after the guidance was rescinded, the DOE published a draft of their proposed Title IX regulations in the Federal Register, which officially commenced the federal rule making process. This process requires a 60-day comment period where the general public can weigh in on the proposed rule and submit feedback in support or against the proposal.

Upon the conclusion of the comment period (February 2019), the DOE received over 104,000 comments and subsequently began to review these comments. The goal of the comment period was to provide the government with an opportunity to infuse the recommendations and make any necessary edits to the rule based upon the points raised by the general public. Following the comment/review period, OCR compiled their finalized changes and officially published the Final Title IX Rule on May 6, 2020.

FAQs –

Where can I access more detailed information about the Final Title IX Rule?

The full copy of the regulations can be found HERE
A condensed summary of the new regulations can be found HERE
Further information can be found via the Department of Education’s website

Once the College has had the opportunity to fully review the new regulations, we will share detailed information both here and on our social media platforms that outlines the major differences between previous guidance vs the Final Rule and how the changes may specifically impact the College’s policies and procedures.

How does TCNJ plan to respond to the new Title IX regulations?

Now that the regulations have been released, they are officially considered federal law. This means that TCNJ will have an obligation to comply with the letter of the law in its entirety in order to maintain compliance. Over the past few months, the College has taken the necessary time to review the comprehensive and complex new regulations and worked with partners across the campus and the state to determine how to implement the new requirements in a way that preserves the fairness, thoroughness, and student centered philosophy that resonates with the College’s values.

Details regarding the changes can be found on through our social media campaign on Instagram, in our Interim Sexual Harassment, Misconduct, & Discrimination Policy and within the New Title IX Regulations handbook located above.

To access the policy, click the above link and on that page use the search bar in the top right corner and type in ‘sexual harassment’ and the policy will display in the list.

How does TCNJ intend to educate the campus about how the new regulations may impact the College’s policies/procedures?

We recognize how vital it is that our campus community be informed about College policies/procedures that directly impact them, especially their safety. As such, we promise to remain as transparent as possible about what changes the College was required to make to its policies and what they mean for us as a campus.

Efforts to keep the campus informed include:

Sharing updates/information via our online platforms, specifically:
- Here on our New Title IX Regulations webpage
- Social media platforms
  - Instagram: @tcnj_titleix
  - Facebook: @TCNJtitleix

Seeking feedback, suggestions, questions, and/or concerns from the campus community, which can be shared with the Office of Title IX & Sexual Misconduct HERE.
- Based on the responses received, we will explore the option of hosting a live virtual Q&A session(s) in the upcoming weeks to address the feedback/questions/concerns submitted.

Be sure to frequently check back to this page since once the College has had the opportunity to fully review the new regulations, we will share detailed information both here and on our social media platforms that outlines the major differences between previous guidance vs the Final Rule and how the changes may specifically impact the College’s policies and procedures.

You are welcome to contact the Title IX Coordinator, Dr. Chelsea Jacoby (jacobyc@tcnj.edu) directly or you can use our Virtual Suggestion Box to share your feedback, suggestions, questions, concerns, and/or other ideas in regard to the Final Rule and/or the Office of Title IX & Sexual Misconduct in general.