Department of Education Surprises with the Final Rule for 2024 Title IX Regulations
Posted on April 26th, 2024
by Dr. Kathleen Conn
What Will Change With the New Rule, Effective August 1
The U.S. Department of Education (DOE) posted a Notice of Proposed Rulemaking (NPRM) for Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance in the Federal Register approximately two years ago on July 12, 2022, with a period of two months for public comments on the proposed amendments to what the public characterized as the 2020 “Betsy DeVos Rule for Title IX.”
DeVos was Trump’s Secretary of Education when the 2020 Title IX Regulations were adopted. DOE received over 249,000 comments on the 2022 proposed amendments, and DOE chiefs and staffers were obliged to wade through the submitted comments and categorize and analyze them.
Announcement of the Biden administration’s Final Rule was optimistically set for October/November 2023, and when that time passed, a new date of Summer 2024 was set.
With an unexpected announcement in the latter days of April 2024, the DOE published the “Unofficial” copy of the Nondiscrimination on the Basis of Sex in the Federal Register, with the promise that the official copy would be published there on April 29, 2024. No explanation for the “unofficial-ness” was offered and, indeed, a link online simultaneously directed the reader to the official copy.
Not surprisingly, however, the actual document reiterated several of the aspirational goals of the DeVos-era Title IX Regulations, but scored the most positive points by acknowledging that pre-K to high school educational institutions receiving Title IX funding are essentially different from colleges, universities, and professional schools like law schools and medical schools, and the “one-size-fits-all” concept was definitely not a reality.
DOE’s 2024 Final Rule finally acknowledged the vastly different administrative structures of pre-K to 12 schools with elected School Boards, and Boards of Trustees in higher education institutions with endowments. The 2024 Rule identified factors that might now be considered when developing policies for assigning responsibilities for sexual harassment or sexual abuse: variations in school size, student population sizes, students’ ages and maturity, needs, and their levels of independence. The 2024 Rule also now emphasizes that parents must be allowed to act on behalf of their children, permission that may be more necessary in K-12 rather than in higher education.
The 2020 DeVos Final Rule allowed educational institutions to use their chosen standard of evidence in their grievance proceedings, but offered no guidance in selecting an appropriate standard. According to the 2024 Final Rule, institutions must use the preponderance of evidence standard, unless the institution uses the clear and convincing evidence standard in all comparable disciplinary proceedings. Therefore, the choice is clearly pre-determined.
The new 2024 Regulations also included specific groups overlooked, purposefully or not, in much prior nondiscrimination guidance, protections for LGBTQ+ individuals and pregnant females, including students, faculty and staff.
Protection from discrimination for LGBTQ+ individuals in the 2024 Final Rule was based on the decision of the Supreme Court in the Title VII case of Bostock v. Clayton County, Georgia, prohibiting discrimination on the basis of LGBTQ+ status in employment, acknowledging the close ties of Titles VII and IX.
Many females in the past who were pregnant or raising their dependent babies had been forced to leave schools or their jobs at educational institutions. The 2024 Final Rule states that educational institutions must provide private spaces for lactation and mothers’ necessary child care, for students, faculty, and staff.
The DeVos-era goals of fair, transparent, and impartial processes implemented by trained and unbiased investigators and decisionmakers, the presumption of innocence of the respondent throughout the grievance process, and the prohibition of retaliation are preserved in the 2024 Regulations.
Supportive measures are still available to both complainant and respondent, albeit more promptly to the respondent than in the 2020 Regulations. The requirement that the complainant file a formal, written complaint, a provision roundly criticized in the 2020 Regulations as intimidating and unproductive, has been abandoned, as has the requirement of actual knowledge of discrimination on the basis of sex.
“Actual knowledge” has been replaced with the directive to all educational institutions that they must be on the alert for even the suggestion of discrimination on the basis of sex, and must eradicate all vestiges of such discrimination in their institutions promptly and efficiently, prevent its recurrence, and remedy its effects – a large task indeed.
The 2024 Final Rule provides for protection of private information, joining other provisions for protection of information like HIPAA and FERPA, as well as doctor-patient confidentiality. Communication of the identity of the institutions’ Title IX Coordinators and access to them, as well as the institutions’ policies on sexual harassment, are also required. The protection of individuals involved in Title IX issues, complainants and respondents as well as witnesses, must be protected from retaliation in the institutions’ Title IX policies.
Key Takeaways for Colleges and Universities
The Civil Rights Data Collection (CRDC) Sexual Violence in K-12 Schools Issue Brief, US DOE Office for Civil Rights, in its latest report in December 2022 noted that in 2019, reports of sexual violence in K-12 schools were nearly 15 times that reported in 2017-2018. During the pandemic when schools went virtual, the level dropped, but it is slowly rising again.
The Rape, Abuse, and Incest National Network (RAINN) recently reported that 13% of undergraduate and graduate students in higher education experience rape or sexual assault. Enforcement of specific and effective Title IX regulations are critical to stopping this tragic sexual harassment and abuse. Higher education institutions now have the mandate to craft flexible anti-discrimination Title IX policies suitable for their unique educational situations.
If you have any questions, please consult with your legal counsel or one of the higher education attorneys at KingSpry.
Department of Education Surprises with the Final Rule for 2024 Title IX Regulations
Posted on April 26th, 2024
by Dr. Kathleen Conn
What Will Change With the New Rule, Effective August 1
The U.S. Department of Education (DOE) posted a Notice of Proposed Rulemaking (NPRM) for Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance in the Federal Register approximately two years ago on July 12, 2022, with a period of two months for public comments on the proposed amendments to what the public characterized as the 2020 “Betsy DeVos Rule for Title IX.”
DeVos was Trump’s Secretary of Education when the 2020 Title IX Regulations were adopted. DOE received over 249,000 comments on the 2022 proposed amendments, and DOE chiefs and staffers were obliged to wade through the submitted comments and categorize and analyze them.
Announcement of the Biden administration’s Final Rule was optimistically set for October/November 2023, and when that time passed, a new date of Summer 2024 was set.
With an unexpected announcement in the latter days of April 2024, the DOE published the “Unofficial” copy of the Nondiscrimination on the Basis of Sex in the Federal Register, with the promise that the official copy would be published there on April 29, 2024. No explanation for the “unofficial-ness” was offered and, indeed, a link online simultaneously directed the reader to the official copy.
Not surprisingly, however, the actual document reiterated several of the aspirational goals of the DeVos-era Title IX Regulations, but scored the most positive points by acknowledging that pre-K to high school educational institutions receiving Title IX funding are essentially different from colleges, universities, and professional schools like law schools and medical schools, and the “one-size-fits-all” concept was definitely not a reality.
DOE’s 2024 Final Rule finally acknowledged the vastly different administrative structures of pre-K to 12 schools with elected School Boards, and Boards of Trustees in higher education institutions with endowments. The 2024 Rule identified factors that might now be considered when developing policies for assigning responsibilities for sexual harassment or sexual abuse: variations in school size, student population sizes, students’ ages and maturity, needs, and their levels of independence. The 2024 Rule also now emphasizes that parents must be allowed to act on behalf of their children, permission that may be more necessary in K-12 rather than in higher education.
The 2020 DeVos Final Rule allowed educational institutions to use their chosen standard of evidence in their grievance proceedings, but offered no guidance in selecting an appropriate standard. According to the 2024 Final Rule, institutions must use the preponderance of evidence standard, unless the institution uses the clear and convincing evidence standard in all comparable disciplinary proceedings. Therefore, the choice is clearly pre-determined.
The new 2024 Regulations also included specific groups overlooked, purposefully or not, in much prior nondiscrimination guidance, protections for LGBTQ+ individuals and pregnant females, including students, faculty and staff.
Protection from discrimination for LGBTQ+ individuals in the 2024 Final Rule was based on the decision of the Supreme Court in the Title VII case of Bostock v. Clayton County, Georgia, prohibiting discrimination on the basis of LGBTQ+ status in employment, acknowledging the close ties of Titles VII and IX.
Many females in the past who were pregnant or raising their dependent babies had been forced to leave schools or their jobs at educational institutions. The 2024 Final Rule states that educational institutions must provide private spaces for lactation and mothers’ necessary child care, for students, faculty, and staff.
The DeVos-era goals of fair, transparent, and impartial processes implemented by trained and unbiased investigators and decisionmakers, the presumption of innocence of the respondent throughout the grievance process, and the prohibition of retaliation are preserved in the 2024 Regulations.
Supportive measures are still available to both complainant and respondent, albeit more promptly to the respondent than in the 2020 Regulations. The requirement that the complainant file a formal, written complaint, a provision roundly criticized in the 2020 Regulations as intimidating and unproductive, has been abandoned, as has the requirement of actual knowledge of discrimination on the basis of sex.
“Actual knowledge” has been replaced with the directive to all educational institutions that they must be on the alert for even the suggestion of discrimination on the basis of sex, and must eradicate all vestiges of such discrimination in their institutions promptly and efficiently, prevent its recurrence, and remedy its effects – a large task indeed.
The 2024 Final Rule provides for protection of private information, joining other provisions for protection of information like HIPAA and FERPA, as well as doctor-patient confidentiality. Communication of the identity of the institutions’ Title IX Coordinators and access to them, as well as the institutions’ policies on sexual harassment, are also required. The protection of individuals involved in Title IX issues, complainants and respondents as well as witnesses, must be protected from retaliation in the institutions’ Title IX policies.
Key Takeaways for Colleges and Universities
The Civil Rights Data Collection (CRDC) Sexual Violence in K-12 Schools Issue Brief, US DOE Office for Civil Rights, in its latest report in December 2022 noted that in 2019, reports of sexual violence in K-12 schools were nearly 15 times that reported in 2017-2018. During the pandemic when schools went virtual, the level dropped, but it is slowly rising again.
The Rape, Abuse, and Incest National Network (RAINN) recently reported that 13% of undergraduate and graduate students in higher education experience rape or sexual assault. Enforcement of specific and effective Title IX regulations are critical to stopping this tragic sexual harassment and abuse. Higher education institutions now have the mandate to craft flexible anti-discrimination Title IX policies suitable for their unique educational situations.
If you have any questions, please consult with your legal counsel or one of the higher education attorneys at KingSpry.