Today, April 19, 2024, the United States Department of Education (“Department”) released its much-anticipated amendments to the existing Title IX Regulations (“2024 Regulations”). Title IX prohibits discrimination on the basis of sex in any education program or activity that receives federal financial assistance.
The amendments make substantial changes to the existing Title IX Regulations. Below are 9 significant changes to Title IX:
- Clarify the Scope of Prohibited Sex Discrimination. The 2024 Regulations prohibit discrimination not only on the basis of sex, but also on the basis of sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
- Redefine “Sexual Harassment.” Rather than applying only to sexual harassment, the 2024 Regulations apply to “sex-based harassment,” which includes quid pro quo sexual harassment, sexual assault, dating violence, domestic violence, and stalking. “Sex-based harassment” also includes hostile environment harassment, which is defined as unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.
- Expand Application of Title IX Processes and Procedures. In addition to addressing sex discrimination that occurs in a school’s education program or activity in the United States, schools must also address sex-based hostile environments in its programs or activities, even when some conduct alleged to be contributing to the hostile environment occurred outside the recipient’s education program or activity or outside the United States.
- Change to “Actual Knowledge” and “Deliberate Indifference” Standards. Now, a school with knowledge of conduct in its education program or activity that reasonably may constitute sex discrimination must respond promptly and effectively.
- Return to the Single Investigator Model. Schools now have the option to use a single-investigator model, and schools may choose to use this model in some, but not all, cases as long as it is clear in their grievance procedures when this model will be utilized.
- Increase Access to the Informal Resolution Process. Schools also have the option to offer an informal resolution process for sex discrimination complaints unless the complaint includes allegations that an employee engaged in sex-based harassment of an elementary school or secondary school student, or unless such a process would conflict with Federal, State, or local law.
- Designate Confidential Employees. The 2024 Regulations create three categories of confidential employees who are not required to notify the Title IX Coordinator about conduct that reasonably may constitute sex discrimination. Instead, these confidential employees must provide information to anyone who informs them of conduct that reasonably may constitute sex discrimination about their status as a confidential employee for purposes of Title IX, how to contact the Title IX Coordinator, how to make a complaint, and how the Title IX Coordinator can help.
- Decrease Autonomy for Title IX Coordinators. Under the 2024 Regulations, the Title IX Coordinator may only initiate a complaint if the conduct presents an imminent and serious threat to someone’s health or safety or prevents the school from ensuring equal access based on sex to its education program or activity.
- Accommodate Pregnant and Lactating Students and Employees. The 2024 Regulations strengthen requirements that schools provide reasonable modifications for students based on pregnancy or related conditions, allow for reasonable break time for lactation for employees, and access to a clean, private lactation space for students and employees.
Additional changes were made to the specific provisions that apply to post-secondary institutions, including the following:
- Broadened definition of sexual harassment that includes conduct that is “sufficiently severe or pervasive;”
- Clear language that includes discrimination on the basis of sexual orientation and gender identity in the sex discrimination prohibited by Title IX;
- Clarification of the prohibition on discrimination on the basis of current, potential, or past pregnancy or related conditions;
- Approval of single-investigator resolution of Title IX complaints;
- Replaces the cross-examination requirement with questioning by the decision maker or investigator for sex-based sexual harassment complaints involving a student
Experts anticipate that the 2024 Regulations will result in an increase in the number of Title IX complaints because the 2024 Regulations broaden the protections of Title IX.
The Department is requiring all schools to implement the new 2024 Regulations by August 1, 2024. Poyner Spruill attorneys will be providing updated Title IX policies and procedures and staff training on the 2024 Regulations. For more information about the 2024 Regulations and resources implementing the 2024 Regulations, please contact Grace Pennerat at gpennerat@poynerspruill.com, Rebecca Williams at rwilliams@poynerspruill.com, or Rachel Pender at rpender@poynerspruill.com.
