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Title IX-Related News from Our Nation’s Capitol

By Kayleigh Baker, J.D., Consultant, TNG

2022 was a big year for Title IX practitioners, especially considering that the field celebrated the 50th Anniversary of Title IX and was treated to a preview of the anticipated 2023 regulatory changes in the form of the Notice of Proposed Rule Making. However, even as 2022 wound down, all three federal government branches continued to make the news. The end-of-the-year crush can be very distracting, so for those who may have missed coverage of these items, a few Title IX-related updates are reviewed below. 

Updates on the Violence Against Women Act Reauthorization

Early in 2022, President Biden signed the Amendments to the Violence Against Women Act (VAWA) into law.[1] This legislation, which reauthorizes VAWA grants until 2027, strengthened the protections offered for those who experience sexual assault, dating violence, domestic violence, and stalking for the first time since 2013. The Act, which took effect on Oct. 1, 2022, contained many subparts, but one new aspect of the Act included the creation of an Interagency Task Force on Sexual Violence in Education.

This Task Force was established by the Secretary of Education, the Secretary of Health and Human Services, and the Attorney General on Sept. 1 to provide guidance to federal agencies, Congress, and education institutions on various issues related to sexual violence in schools, colleges, and universities. The Task Force will focus on:

  • Providing information on sexual violence prevention, investigations, and response
  • Recommending best practices for establishing sexual assault prevention and response teams
  • Developing recommendations related to providing culturally responsive and trauma informed survivor resources

To that end, the Task Force will be soliciting feedback from a diverse group of stakeholders, including survivors; trauma specialists; advocates; primary, secondary, and postsecondary schools; and other public stakeholders. Additionally, the Task Force will assess the ability of the Department of Education (ED) to issue fines for non-compliance with Title IX. Under the 2022 Amendments, the Task Force will annually publish information related to its activities and statistics related to complaints and investigations. 

The Task Force was also to compile information related to recruiting, retaining, and training a workforce to conduct investigations and address complaints made to ED. They were to release their findings within 90 days and did so in a report on Nov. 30, 2022.[2]

Some of the Task Force findings, and other updates from ED in the report include:

  • OCR Complaints, related to Title IX enforcement, were up to 759 in FY 2022, compared to 441 in FY 2021.
    • OCR is not only facing an increased caseload but also staffing difficulties. An anticipated budget increase will likely help to remedy the insufficient staffing the Department is currently facing with respect to investigators.
    • Despite the increased caseload, OCR investigators — many of whom were hired under President Obama’s administration — have been attending regular, internal workshops, including recent training on interviewing and counseling techniques and responding to requests for accommodations.
  • OCR’s Clery Group, responsible for monitoring compliance with the Clery Act, is a much smaller entity, but it, too, is dealing with the challenges of insufficient staffing.
    • Despite the staffing concerns, Clery reviews are still being conducted. OCR indicated that they are requesting the following information from schools:
      • Original and revised ASRs, audit trails, call logs, daily crime logs, lists of Timely Warnings and Emergency Notifications, and a list of Campus Security Authorities.
  • OCR is also working on new Clery Act compliance guidance following the rescinding of the Clery Handbook in 2020.[3] The Task Force report did not include an anticipated timeline for any new guidance.

Perhaps the most impactful part of the 2022 VAWA Amendments is the development of a standardized climate survey tool. The recent reauthorization directed the Secretary of Education to develop and implement a standardized campus climate survey tool to be used by higher education institutions. Once created, institutions will have one year to begin using the survey tool and will be required to administer the survey biennially thereafter. As it stands, there is no word on when the survey tool will be released; however, based on the Task Force’s report, we now know ED has begun to develop the tool. 


In other recent news out of Washington, Senators Bob Casey (D-PA) and Mazie Hirono (D-Hawaii) and U.S. Representatives Debbie Dingell (MI-12), Jahana Hayes (CT-05), and Deborah Ross (NC-02) introduced the Students’ Access to Freedom & Educational Rights Act (SAFER Act).[4] ATIXA is in the process of digesting the proposed legislation and assessing its viability.

The 78-page bill would:

  • Expand Title IX jurisdiction to cover off-campus behavior in certain circumstances
  • Strengthen the definition of sex-based harassment (including harassment based on sexual orientation, gender identity, sex characteristics, pregnancy, childbirth, a medical condition related to pregnancy or childbirth, and sex stereotypes)
  • Align the definitions of harassment and standards under Title IX, Section 504, Title VI, and the Age Discrimination Act
  • Require religious institutions claiming a Title IX exemption to request and publicize the request and scope of the exemption (for more information on this, see ATIXA’s comment on the NPRM)
  • Require ED to create a campus climate survey for primary and secondary schools akin to the one being developed under VAWA for higher education
  • Codify many best practices including notifying a complainant about resources and requiring schools to incorporate an amnesty policy
  • Require institutions to provide annual trauma informed sexual harassment prevention education to school employees and students
  • Direct ED to develop a training program for those involved in resolving reports of sex-based harassment
  • Authorize $50,000,000 in grants to local agencies to provide training to K-12 staff on how to prevent, recognize, and respond to signs of sexual harassment, sexual assault, and grooming behaviors
  • Authorize $50,000,000 in grants to local agencies to provide training to higher education staff on how to prevent, recognize, and respond to signs of sexual harassment, sexual assault, and grooming behaviors

Supreme Court Denies Cert

In late November, the Supreme Court made a somewhat surprising decision to not review the “one free rape rule” under Title IX. We wrote about Doe v. Fairfax County School Board, 1 F.4th 257 (4th Cir. 2021) earlier this year, when it seemed possible that there was sufficient interest from the Bench to grant certiorari.[5] Since the Supreme Court declined to hear the case, the Fourth Circuit’s decision to send the case back for a new trial will stand with no obligation to show that the failure of the school to remedy exposed the complainant to repeated or continued sexual harassment. Unless the parties reach a settlement agreement, there will be a new trial requiring all evidence to be presented and all parties and witnesses to testify once again. This means, that for the second time, Jane Doe will attempt to convince a jury that another student assaulted her while on a school band trip and that the school board was on notice of the harassment and failed to respond appropriately. It will be interesting to see what happens next. Some Court watchers believe that the Supreme Court’s failure to grant cert in Fairfax is a tacit ratification of the Fourth Circuit’s view that establishing Title IX liability does not require a showing that the school’s failure to respond caused the complainant to be exposed to continuing harassment. However, with the Circuit Courts split on that question, there could be a number of reasons why the Court declined cert at this time.

What’s next?

As it stands, Doe v. Fairfax County is just one of multiple Title IX cases that could be tried in front of a jury this year. We expect that the SAFER Act will be re-introduced during the 118th Congress and will see action later in January, at the earliest. We’ll keep an eye on whether the Gender Equity in Education Act (GEEA) will be re-introduced, as well. ATIXA will monitor the courts and these legislative initiatives and will update our members with any news. Likewise, time will tell when we can expect the survey tool and Clery guidance from ED; however, it is looking more and more like 2023 will be another big year for Title IX practitioners – including a Final Rule based on the 2022 NPRM.[6]

For more ATIXA Tip of the Week blogs, click here.