Title IX of the Education Amendments of 1972 (“Title IX”) is a civil rights act that prohibits sex-based discrimination in educational institutions that receive federal funding in any part of their programs or activities.
Following the January 9, 2025 decision of U.S. District Court for the Eastern District of Kentucky, the United States Department of Education (the “Department”) announced that its 2024 Title IX Regulations and related resources are not effective in any jurisdiction. And so, we return to the 2020 Regulations.
On April 19, 2024, the Department released its 2024 Final Rule, implementing changes to Title IX. The major changes intended to expand the definition of sex discrimination, define sex-based harassment to encompass sexual harassment and other sex-based harassment, increase training requirements, broaden jurisdiction, and provide clearly-defined investigation procedures.
Shortly thereafter, the Department faced several lawsuits challenging its 2024 Title IX Regulations. After several months of litigation, on January 9, 2025, the United States District Court for the Eastern District of Kentucky, in State of Tennessee, et al. v. Miguel Cardona, et al., issued a decision, vacating the 2024 Title IX Regulations nationwide.
Schools must now ensure that their policies and practices are consistent with the 2020 Title IX Regulations.
2020 Title IX Regulations
The 2020 Title IX Regulations (the “Regulations”) took effect on August 14, 2020, and can be found at 34 CFR Part 106.
The key components of the Regulations are as follows:
1. Notice. The Regulations require all K-12 schools to respond whenever any employee has notice of sexual harassment, which includes allegations of sexual harassment. Additionally, notice to a Title IX Coordinator or other official with authority to institute corrective measures constitutes “actual knowledge” and triggers the school’s response obligations.
2. Sexual Harassment. The Regulations broadly define “sexual harassment” to include any three (3) types of misconduct that may violate Title IX’s protections. “Sexual Harassment” is defined as “conduct on the basis of sex that satisfied one or more of the following:
(1) An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;
(2) Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or
(3) “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).”
Schools must note that the Regulations also broadly define a school’s “program or activity” to incorporate all operations. As such, Title IX applies to a school’s programs or activities that occur both on- and off-campus.
3. Accessible Reporting to Title IX Coordinator. The Regulations require schools to designate and authorize at least one (1) employee to serve as its “Title IX Coordinator” whose role is to coordinate a school’s efforts to comply with Title IX.
Schools are required to notify applicants, employees, students, parents, legal guardians, and unions of the name, office address, email address, and phone number of the Title IX Coordinator. Additionally, schools must publish the Title IX Coordinator’s information on their website.
The purpose of these requirements is to ensure that all members of a school’s community know how to report to the Title IX Coordinator.
4. Mandatory Response Obligations. The Regulations require schools to respond to sexual harassment “in a manner that is not deliberately indifferent.”
As such, schools have the following mandatory response obligations:
A. Offer supportive measures to alleged victims;
B. The Title IX Coordinator must promptly contact the complainant;
C. Schools must follow a grievance process that complies with the Regulations;
D. Schools must not restrict an individual’s constitutional rights;
E. Schools must investigate sexual harassment allegations set forth in a formal complaint; and
F. Schools must respect complainants’ wishes as it pertains to whether the school investigates.
Additionally, the Regulations provide that if the allegations do not meet the definition of sexual harassment or did not occur in a school’s program or activity, a school may dismiss such allegations for purposes of Title IX; however, the school may still address the allegations in any manner it deems appropriate.
5. Grievance Process. Schools are required to adopt and publish grievance procedures that “provide for the prompt and equitable resolution” of complaints. The Regulations provide that a school’s grievance process must:
A. Treat complainants and respondents equitably;
B. Require an objective evaluation of all relevant evidence;
C. Require that the Title IX Coordinator or any other designated investigator not have a conflict of interest or bias;
D. Include a presumption that the respondent is not responsible until a decision is made;
E. Describe the range of disciplinary sanctions and remedies;
F. State the standard of evidence used;
G. Include the procedures and bases for appeal;
H. Describe the range of supportive measures available; and
I. Not require or otherwise use questions or evidence that seek the disclosure of privileged information.
Additionally, the Regulations provide that hearings are optional for K-12 schools.
6. Investigations. The Regulations require schools to investigate the allegations set forth in a formal complaint and send written notice to both parties upon receipt of a formal complaint.
If your school has questions regarding its investigation obligations, KingSpry’s Investigations and Compliance Services Group is prepared to assist you.
7. Standard of Evidence. The standard of evidence used in investigations may be the “preponderance of the evidence standard” or the “clear and convincing evidence standard.” Schools must state which standard of evidence it uses in its grievance procedures.
8. Appeals. Schools must offer both the complainant and respondent the opportunity to appeal from a determination and/or a dismissal of a formal complaint or any allegations therein.
9. Informal Resolution. The Regulations allow a school to pursue informal resolution, such as mediation, as long as both parties give voluntary, informed consent to such.
10. Retaliation Prohibited. Finally, the Regulations explicitly prohibit retaliation against any individual “for the purpose of interfering with any right or privilege secured by [Title IX], or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing…”
Bottom Line For Schools
Effective immediately, schools must comply with the 2020 Title IX Regulations.
KingSpry’s Education Law Group understands the potential disruptions schools may face when returning to the 2020 Title IX Regulations. Our education law attorneys are prepared to assist educational institutions, offering comprehensive policy reviews and trainings.
If your school has a question regarding Title IX, please contact your local counsel or one of the Education Law attorneys at KingSpry.
