How potential Title IX overhaul expands protections for students with disabilities

After more than a year and on the 50th anniversary of the law, the U.S. Department of Education released proposed regulations to update Title IX, the federal civil rights law that prohibits discrimination on the basis of sex in education programs or activities that receive federal funding.

“The proposed regulations reflect the department’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 proposed regulations would include:

• Protect LGBTQI+ students from discrimination based on sexual orientation, gender identity and sex characteristics.
• All schools are to treat complainants and respondents equitably.
• The option for schools to offer an informal resolution for resolving sex discrimination complaints.
• Title IX Coordinators, investigators, decision-makers, and facilitators of an informal resolution process not to have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.
• A school’s grievance procedures must give the parties an equal opportunity to present relevant evidence and respond to the relevant evidence of other parties.
• The school’s decision-makers must objectively evaluate each party’s evidence.
• The proposed regulations would not require a live hearing for evaluating evidence, meaning that if a school determines that its fair and reliable process will be best accomplished with a single-investigator model, it can use that model.
• A school must have a process for a decisionmaker to assess the credibility of parties and witnesses through live questions by the decisionmaker. The proposed regulations would not require cross-examination by the parties for this purpose but would permit a postsecondary institution to use cross-examination if it so chooses or is required to by law.

Particularly for those in special education, the proposed regulations would improve the adaptability of grievance procedure requirements.

“To be effective in implementing Title IX, a school’s grievance procedures for sex discrimination complaints must adapt to the age, maturity, needs, and level of independence of students in various educational settings, and the particular contexts of employees and third parties,” the fact sheet states. “Based on this reality, the Department’s proposed regulations would include a framework that accounts for these differences, including requirements that apply in all settings and specialized requirements that are tailored to the unique situation of sex-based harassment complaints involving postsecondary students. This framework would ensure that all federally funded schools and postsecondary institutions can provide for the prompt and equitable resolution of sex discrimination complaints in their respective settings.”

The proposed regulations also define “student with a disability” and mention that for “an elementary or secondary student complainant or respondent who is a student with a disability, the Title IX grievance procedures may intersect with the decisions, including those about FAPE, made by the IEP team or Section 504 team.”

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The proposed regulations have been eagerly awaited since April 6, 2021, when the Office for Civil Rights stated that it was reassessing ED’s regulations and policies to determine whether any changes or additions were necessary to protect students’ rights under Title IX.

So now the moment has arrived for special education experts–as well as the rest of the education and civil rights advocate communities–to parse through proposed regulations, make their opinions heard, and see what may be on the horizon for school districts. ED is seeking comments on the proposed regulations for 60 days from the date of publication in the Federal Register. Submit comments at www.regulations.gov.

Cara Nissman covers autism, school psychology, and IEP team issues for LRP Publications.