Washington, DC – In addition to Title IX, the U.S. Department of Education (ED) is scheduled to make changes to FERPA and Clery Act implementation this year. Each of these three laws and their implementation have significant implications for campus safety, with Title IX governing sexual harassment including gender-based violence, FERPA applying to how records of campus crime may be disclosed, and the Clery Act requiring public disclosure of campus safety information in higher education.
The Biden-Harris Administration is expected to propose significant changes to Title IX regulations in April, while more routine FERPA regulatory amendments are expected by August. Each will include a public comment process. The annual indexing for inflation of Clery Act fines is imminent having originally been expected by January. Because this recalculation is statutorily required there is no public comment period.
ED provided notice of these expected changes in the Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions. Formal notice of each change will be published in the Federal Register.
Title IX
ED states that the “Department plans to propose to amend its regulations implementing Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., consistent with the priorities of the Biden-Harris Administration. These priorities include those set forth in Executive Order 13988 on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation and Executive Order 14021 on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity. We anticipate this rulemaking may include, but would not be limited to, amendments to 34 CFR 106.8 (Designation of coordinator, dissemination of policy, and adoption of grievance procedures), 106.30 (Definitions), 106.44 (Recipient’s response to sexual harassment), and 106.45 (Grievance process for formal complaints of sexual harassment).”
The basis for this change is “to align the Title IX regulations with the priorities of the Biden-Harris Administration, including those set forth in the Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (EO 13988) and the Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity (EO 14021).”
See the entire notice at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=1870-AA16.
FERPA
“The Department plans to propose to amend the Family Educational Rights and Privacy Act (FERPA) regulations, 34 CFR part 99, to update, clarify, and improve the current regulations by addressing outstanding policy issues, such as clarifying the definition of ‘education records’ and clarifying provisions regarding disclosures to comply with a judicial order or subpoena. The proposed regulations are also needed to implement statutory amendments to FERPA contained in the Uninterrupted Scholars Act of 2013 and the Healthy, Hunger-Free Kids Act of 2010, to reflect a change in the name of the office designated to administer FERPA, and to make changes related to the enforcement responsibilities of the office concerning FERPA.”
Last significantly updated in 2008, these “regulations are needed to implement amendments to FERPA contained in the Healthy, Hunger-Free Kids Act of 2010 (Pub. L. 111296) and the Uninterrupted Scholars Act (USA) of 2013 (Pub. L. 112278); to provide needed clarity regarding the definitions of terms and other key provisions of FERPA; and to make necessary changes identified as a result of the Department’s experience administering FERPA and the current regulations. A number of the proposed changes reflect the Department’s existing guidance and interpretations of FERPA.”
See the entire notice at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=1875-AA15.
Clery Act Fines
Fines for Clery Act violations are indexed for inflation annually as “required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015”. An announcement is expected imminently. ED last increased fines to $59,017 up from $58,328 on February 3, 2021. The increased fine amount will apply to any civil penalties assessed after the date notice is published for any violations occurring after November 2, 2015.
See the entire notice at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=1801-AA23.