AAUP Response to Final Title IX Regulations

The US Department of Education (ED) released on April 19, 2024, its final regulations under Title IX of the Education  Amendments of 1972. The American Association of University Professors had submitted comments, in September 2022, on the proposed revisions to the regulations in response to the secretary of education’s 2022 request. As the AAUP noted in its comments, changes in Title IX regulations should be assessed according to whether they advance the Title IX mission and for their impact on broader equity goals in postsecondary education. In the following response by the AAUP, we identify areas where the ED’s final Title IX regulations advance these equity goals and where they fall short.

Final Regulation provisions that strengthen Title IX protections

The final regulations include several positive changes that the AAUP supported in its earlier comments including the welcome clarification that Title IX’s prohibition on discrimination based on sex applies to discrimination based on sexual orientation and gender identity, and the broadened definition of hostile environment harassment under Title IX. These regulatory provisions are consistent with the goals of Title IX to achieve broad reaching changes toward gender equality:

Broad coverage of prohibitions based on sex discrimination

The final regulations clarify that sex discrimination, including sex-based harassment, covers discrimination based on “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” 34 CFR106.10. This provides important confirmation of the inclusive meaning of sex discrimination.

Expanded definition of hostile environment harassment 

The final regulations define hostile environment harassment “as unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.” 34 CFR 106.2.  This amended definition is consistent with the “severe or pervasive” standard recommended in the AAUP’s earlier comments, as a hostile environment can be produced by severe conduct that is not pervasive and by pervasive conduct that is not deemed severe. Further, a careful examination of all the circumstances under a “severe or pervasive” standard can and should be applied in ways that distinguish between unprotected speech or expression (speech that constitutes a hostile  environment) and speech or expression protected by academic freedom and/or the First Amendment.

Final Regulation provisions that weaken Title IX protections

The AAUP also finds, however, that the some of the provisions in the final regulations do not adequately provide the fundamental protections for faculty and students that the AAUP advocated for in its earlier comments. As discussed in more detail, below, the AAUP finds that the final regulations are flawed in requiring overly broad definitions of “mandatory reporters”, weakening due process protections, and failing to include explicit references to academic freedom.

"Mandatory Reporters"

The AAUP objects to the final regulation that postsecondary institutions must require: “Any employee who is not a confidential employee and who…has responsibility for administrative leadership, teaching, or advising in the recipient’s education program or activity to notify the Title IX Coordinator when the employee has information about conduct that reasonably may constitute sex discrimination under Title IX.“ 34 CFR 106.44(c)(2)(i). This provision mandates that all colleges and universities treat all faculty as mandatory reporters. This creates an even more severe mandate than the current regulations, which leave it to postsecondary institutions to decide whether to require mandatory reporting by all employees or instead to restrict that function to designated reporters. As the AAUP’s earlier comments explained, requiring all higher education faculty to serve as mandatory reporters is an ill-advised and counterproductive approach to ensuring that the Title IX Coordinator receives information about possible sex discrimination. Such overly broad definitions of mandatory reporters violate the autonomy of potential complainants – whether students or employees – and their ability to get advice while requesting confidentiality from a trusted faculty member, colleague, or supervisor. The AAUP continues to recommend that the Title IX regulations should require that postsecondary institutions restrict mandatory reporting to “designated reporters,” with the scope of that group being defined through shared governance and collective bargaining, as has been done at postsecondary institutions such as University of Oregon.

Due Process, Shared Governance, and Collective Bargaining

As the AAUP noted in its earlier comments to the ED, postsecondary institutions should be required to provide robust levels of due process for all students and for all faculty (whether nontenure-track, tenure-track, or tenured), academic professionals, or other employees as part of the Title IX mission. Providing strong due process protections in Title IX grievance procedures would enhance the fairness and reliability of the proceedings, including helping to guard against the risk that a determination is consciously or unconsciously based on presumptions derived from gender and racial stereotypes that affect evaluations of credibility or the likelihood of guilt.

The AAUP objects to the final regulations’ weakening of due process throughout the stages of  proceedings, including permitting colleges and universities to combine the roles of investigator and decision-making in a “single investigator model,” and to evaluate evidence and determine responsibility without any live hearings.

The AAUP continues to emphasize that due process should be required before any decision to impose disciplinary actions prior to a complaint being filed or pending the outcome of a grievance procedure. The final regulations in Section 106.44(g)(1) allow for “supportive measures” during this period, including disciplinary actions such as “leaves of absence; changes in class, work, housing, or extracurricular or any other activity, regardless of whether there is or is not a comparable alternative.” The provision in Section 106.44(g)(2) that a “recipient may not impose such measures for punitive or disciplinary reasons” does not make actions any less “disciplinary” in their severe impact on a faculty member. Fair and reliable procedures are needed before deciding to impose such serious disciplinary measures as suspending a faculty member from teaching one or more courses. Similar flaws remain in the lack of due process prior to an “emergency removal” of an accused harasser under Section 106.44(h), and prior to placing an employee respondent on administrative leave Section 106.44(i) during the pendency of the grievance procedures.

We emphasize, however, that the final regulations create minimum procedural requirements. In other words, the final regulations are a floor, not a ceiling. Section 106.45(j) permits educational institutions to adopt grievance procedures that provide greater due process protections, as long as they apply equally to the parties. As the ED states in its commentary: “The Department acknowledges that a recipient may use shared governance and collective bargaining to adopt additional rules and practices beyond those required by the final regulations and that some employees have additional rights created by shared governance and collective bargaining agreements.” The AAUP emphasizes that shared governance and/or collective bargaining can be used in postsecondary institutions to strengthen due process in grievance procedures that, for example, separate the roles of investigator and decision-maker, provide for live hearings, and apply the “clear and convincing” evidence standard.

Academic Freedom

As discussed above, the final regulations appropriately define hostile-environment sexual harassment as speech or conduct that is “subjectively and objectively offensive” and is “severe or pervasive.” The ED’s commentary on the final regulations recognizes that the application of this hostile-environment legal standard must be sensitive to the academic context. In this regard, the AAUP agrees with the following statement by the ED: “Further, the determination whether a hostile environment exists is inherently fact-based, and the Department considers the academic setting of a person’s conduct to be highly relevant. Conduct that may very well amount to harassment in other settings may not amount to harassment if engaged in appropriately in the academic setting, especially in the context of postsecondary academic discourse.” https://www.federalregister.gov/d/2024-07915/p-582. However, the AAUP does not agree with the ED’s conclusion that, consequently, it is not necessary “to revise § 106.6(d) to explicitly protect academic freedom.” Ibid

The AAUP appreciates the ED’s recognition in its commentary of the relevance of the postsecondary academic context in applying the harassment standard and the ED’s additional statements supporting academic freedom: “The Department is fully committed to the freedom of speech, the freedom of association, religious liberty, and academic freedom. The Department reaffirms the importance of the free exchange of ideas in educational settings and particularly in postsecondary institutions, consistent with the First Amendment. Indeed, a free exchange of different ideas is essential to high quality education. Nothing in the Title IX regulations restricts any rights that would otherwise be protected from government action by the First Amendment. See 34 CFR 106.6(d).” However supportive the ED’s commentary is, the AAUP continues to find that the final regulations do not adequately protect faculty academic freedom. In fact, the regulations do not make any reference to academic freedom. Further, the ED’s commentary fails to state that academic freedom extends beyond First Amendment definitions and protects faculty members in public and private universities in their teaching, research, and extramural  speech. To address this, the AAUP’s public comments to the ED had recommended amending Section 106.6(d) to add the explicit protection of academic freedom in applying Title IX.