On April 19, 2024, after a two-year comment period which drew over 240,000 responses, the United States Department of Education released its final rule, implementing many changes to Title IX.
The final rule is set to take effect on August 1,2024.
Enacted in 1972, Title IX is a federal civil rights law outlawing discrimination in education based on sex. Title IX applies to elementary schools, high school and colleges that receive federal funding (hereinafter “Recipients”).
The new provisions include several major changes, which will require Recipients to update their policies and procedures in order to comply.
Major changes include the following:
Definitions: The final rule adds and revises definitions, including: complaint; complainant; respondent; party; confidential employee; disciplinary sanctions; pregnancy or related conditions; relevant; remedies; retaliation and peer retaliation; sex-based harassment and supportive measures.
Title IX Coordinator: The final rule clarifies the requirements for designating a Title IX coordinator and which individuals must be trained on Title IX, while also outlining requirements for that training, which may vary based on the role.
Grievance Procedures: The final rule requires Recipient to implement clear grievance procedures, however, there is some flexibility allowed, accounting for variations in school size, student populations, and administrative structures. For example, a Recipient may choose to utilize a single-investigator model in some cases, but it must be clear in the grievance procedure when that model will be utilized.
Broader Definition of Sexual Harassment: The previous version of Title IX described the conduct requiring reporting as “severe, pervasive and objectively offensive.” By removing the “objectively offensive” language, the new provisions allow for a lower threshold, mandating schools to address any unwelcome sex-based conduct that is so “severe and pervasive” as to limit a student’s access to education.
Scope of Sex Discrimination: The new provisions clarify that Title IX forbids discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity.
Removal of Live Hearing Requirement: Under the 2020 Title IX rules, Recipients in post-secondary settings were required to hold live hearings in order to allow students to confront and cross-examine one another. The new provisions allow live hearings, but do not require them. Not only are the live hearings optional, but there are new limitations governing them. Students are now able to participate remotely and questions that are “unclear or harassing” must be excluded by the Recipient.
Retaliation: The 2020 Amendments prohibited retaliation, but the term was not defined, nor was the term “peer retaliation.” The final rules define both terms and require Recipients to prohibit retaliation, including peer retaliation, and respond to complaints involving retaliation using the same procedures used to respond to other forms of sex-based discrimination.
Expanded Jurisdiction: Recipients were always required to address a sex-based hostile environment in its education program or activity in the United States. The final rules have expanded that requirement to include conduct occurring outside of the education program or activity or outside of the United States.
Prompt Response: Previously, a Recipient was required to respond only when it had “actual knowledge” of allegations of “sexual harassment,” and only in a manner that was not deliberately indifferent. The new regulations require a prompt and effective response when a Recipient has knowledge of conduct that reasonably may constitute sex discrimination.
Transgender Athletes: A decision on the proposed Title IX rule prohibiting a blanket ban on transgender athletes from participating on teams aligned with their gender identity was not included in the final rules. It is anticipated that a separate rule regarding transgender athletes will be issued in the future.
Informal Resolution: Recipient may offer an informal resolution process, if appropriate, even if a formal complaint has not been filed. This does not apply if the informal resolution process would conflict with federal, state or local law, or if the allegations involve a school employee and an elementary or secondary school student.
