The DOE’s New Title IX Regulations: A Summary of the Key Provisions

CATEGORY: Special Bulletins
CLIENT TYPE: Private Education, Public Education
PUBLICATION: LCW Special Bulletin
DATE: Apr 23, 2024

On April 19, 2024, after a lengthy notice and comment period that produced over 240,000 public comments, the U.S. Department of Education released the final regulations implementing Title IX of the Education Amendments of 1972.  Effective on August 1, 2024, the new regulations will replace the existing Title IX regulations, which became effective in August 2020.

The 2020 regulations introduced a significant shift in OCR’s requirements for how K-12 and postsecondary institutions that receive federal financial assistance must define, investigate, and adjudicate claims of complaints of sex discrimination, including sex-based harassment.

The unofficial draft of the final regulations and resource documents prepared by the U.S. Department of Education’s (Department) Office for Civil Rights (OCR) are available at the following links:

Summary of Key Changes in the New Title IX Regulations

Definition of Prohibited Conduct

The new regulations introduce more expansive terminology with regard to prohibited conduct under Title IX.

Broader Definition of Sex Discrimination

The regulations explicitly protect students and employees from all forms of “sex discrimination,” including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. This includes prohibiting an institution from adopting policies and practices that prevent a person from participating in an institution’s education program or activity consistent with the person’s gender identity. (The Department will issue a separate rule regarding student eligibility to participate in male or female athletic teams.)

Notably, the regulations do not provide a standard or definition of what constitutes prohibited sex discrimination beyond the definitions of sex-based harassment, discussed below.

(34 C.F.R. § 106.10.)

Expansion of Sex-Based Harassment

Whereas the 2020 regulations referred only to “sexual harassment,” the new regulations use the term “sex-based harassment” in order to clarify that Title IX prohibits all harassment based on sex, not just harassment that is sexual in nature. The new regulations still feature three categories of sex-based harassment: (1) quid pro quo harassment, (2) hostile environment harassment, and (3) specific offenses (such as sexual assault, domestic violence, or stalking). However, the new regulations expand the first two categories.

First, quid pro quo harassment is no longer limited to employee respondents. The definition now includes agents or other persons authorized by the school to provide an aid, benefit, or service under the school’s education program or activity.

Second, the regulations define a hostile environment as “Unwelcome sex-based conduct that is sufficiently severe or pervasive that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate in or benefit from the recipient’s education program or activity.” (Emphasis added.) The 2020 regulations had a narrower standard, only prohibiting unwelcome sex-based conduct if it is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” (Emphasis added.)

(34 C.F.R. §§ 106.10; 106.2.)

Notice to the Institution Requiring a Response

The 2020 regulations required an institution of higher education to respond to possible sexual harassment when the Title IX Coordinator or an official with authority to institute corrective measures had notice of the allegation of sexual harassment.

The new regulations return to proactive reporting and response requirements by requiring any employee of a postsecondary institution “who has authority to take corrective action” or who “has responsibility for administrative leadership, teaching, or advising in the recipient’s education program or activity,” to notify the Title IX Coordinator when the employee has information about conduct that reasonably may constitute sex discrimination under Title IX. All other non-confidential employees are obligated to either notify the Title IX Coordinator or provide the Title IX Coordinator’s contact information to any person who provides the employee with information about conduct that may reasonably constitute sex discrimination.

Institutions must include these notification requirements as part of their Title IX training for employees.

(34 C.F.R. § 106.44(c).)

Who May File a Complaint

Students, employees and individuals who suffered conduct that could constitute sex discrimination while they were participating or attempting to participate in the institution’s education program or activity may file complaints. Individuals will be able to file a Title IX sex discrimination complaint even if they chose to leave the institution’s education program or activity because of the discrimination or for other reasons. In contrast, the 2020 regulations limited the Title IX complaint process to current students or employees or to individuals attempting to participate in the institution’s education program or activity.

(34 C.F.R. §§ 106.2; 106.45(a)(2).)

Educational Program or Activity

The 2020 regulations did not require an institution to respond to sexual harassment allegations occurring outside of the institution’s education program or activity, or outside of the United States.

The new regulations require an institution to address sex based hostile environment allegations in its education program or activity in the United States, including (1) conduct that occurs in any building owned or controlled by a student organization officially recognized by the institution or (2) conduct subject to discipline under the institution’s policies. The institution must respond to notice of sex-based harassment even if some of the alleged conduct occurred outside the institution’s education program or activity or outside the United States.

(34 C.F.R. § 106.11)

Obligation to Respond

The new regulations set a higher bar for institutional compliance by requiring a response upon receipt of notice of possible sex discrimination under Title IX.

The 2020 regulations required institutions to “respond promptly to Title IX sexual harassment in a manner that is not deliberately indifferent, which means a response that is not clearly unreasonable in light of the known circumstances.”

Now, institutions must act “promptly and effectively” to end any prohibited sex discrimination that has occurred in their education programs or activities, prevent its recurrence, and remedy its effects. Complaints can be presented orally or in writing, whereas the 2020 regulations only required institutions to investigate formal complaints filed by the complainant in writing or signed by the Title IX coordinator.

(34 C.F.R. §§ 106.2; 106.44(a), (f).)

Informal Resolution

Unlike the 2020 regulations, the new regulations allow institutions to offer an informal resolution process even in the absence of a formal complaint. Participation in informal resolution must be voluntary. However, an institution cannot offer informal resolution where the complaint alleges an employee engaged in sex-based harassment of an elementary or secondary school student.

(34 C.F.R. § 106.44(k).)

Supportive Measures

The 2020 regulations required institutions to provide supportive measures to complainants pending resolution of their formal complaint (e.g., extension of deadlines, restrictions on contact between the parties, and voluntary or involuntary changes in class, work, or housing) with the condition that supportive measures for complainants must be “non-disciplinary,” “non-punitive,” and not “unreasonably burden[some]” on the respondent.

Under the new rules, institutions must offer supportive measures as appropriate to restore or preserve a person’s access to the education programs or activities or provide support during the grievance process. Supportive measures are available in the absence of a formal complaint or after a complaint dismissal. Supportive measures must be designed to protect the parties’ safety or the educational environment. They cannot be “unreasonably burdensome” to either party or imposed for punitive or disciplinary reasons.

Institutions must give parties an opportunity to seek modification or reversal of a decision to provide, deny, modify, or terminate supportive measures applicable to them.

(34 C.F.R. §§ 106.2; 106.44(g).)

Grievance Process

A novel feature of the new regulations is that they include two sets of grievance procedures—one that applies to all complaints of sex discrimination (§ 106.45) and one that provides additional requirements for sex-based harassment complaints involving a student complainant and/or a student respondent at postsecondary institutions (§ 106.46.)

The following are some notable aspects of Section 106.45 that differ from the procedural requirements of the 2020 rules:

  • Institutions are once again permitted to use the single investigator model, in which the investigator also serves as the decisionmaker for a single complaint.
  • Institutions must use the preponderance of the evidence standard of proof, unless the institution uses the clear and convincing evidence standard for all other comparable proceedings (e.g., other types of discrimination complaints).
  • Dismissal is permitted under certain enumerated circumstances, but in contrast to the 2020 regulations, dismissal is never required. Institutions must offer the complainant an opportunity to appeal a dismissal.
  • Significantly, whereas the 2020 regulations required college and universities to provide both parties an opportunity to appeal the institution’s decision following a sexual harassment investigation, institutions are no longer required to offer appeals in cases where neither the complainant nor the respondent are students. Instead, an institution need only offer an appeal process if it does so in all other comparable proceedings, including proceedings relating to other discrimination complaints.

Section 106.46, which governs sex-based harassment complaint procedures for student parties, differs from the requirements of the 2020 rules as follows:

  • The regulations no longer require a live hearing. Institutions using a single-investigator model must include a process for assessing credibility through party questioning by the decisionmaker. The regulations note that in some jurisdictions, hearings are required.
  • The 2020 regulations required that each party’s advisor conduct cross-examination directly, orally, and in real time during a live hearing. If the postsecondary institution holds a live hearing, it may allow an advisor to conduct live cross-examination or allow the parties to propose relevant and not otherwise impermissible questions for the decisionmaker or investigator to ask during an individual meeting. If a postsecondary institution permits advisor-conducted questioning and a party does not have an advisor, the institution must provide the party with an advisor of its choice, free of charge to that party.

(34 C.F.R. §§ 106.45; 106.46.)

Protections against Retaliation

While the 2020 regulations prohibited retaliation, they did not include a definition of the term. The new regulations define retaliation as “intimidation, threats, coercion, or discrimination against any person by the recipient, a student, or an employee or other person authorized by the recipient to provide aid, benefit, or service under the recipient’s education program or activity, for the purpose of interfering with any right or privilege secured by Title IX or [the regulations], or because the person has reported information, made a complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing” under the regulations.”  However, the institution may require employees to participate as witnesses or to assist with an investigation, proceeding, or hearing.

(34 C.F.R. §§ 106.2; 106.71(b).)

Pregnancy Discrimination

The regulations feature new provisions that clarify an institution’s obligation to protect students and employees from discrimination based on pregnancy or related conditions, including by providing reasonable modifications for students, reasonable break time for employees for lactation, and lactation space for both students and employees.

The regulations modernize and clarify Title IX’s longstanding prohibition against treating parents differently on the basis of sex, including by defining “parental status” to include, for example, adoptive parents, stepparents, or legal guardians.

Finally, the new regulations require employees and the Title IX coordinator to provide certain information and resources to a student upon learning of the student’s pregnancy or related condition.

(34 C.F.R. §§ 106.40; 106.57.)

Notable Differences for K-12 Schools

Some provisions of the new regulations do not apply to elementary and postsecondary (K-12) schools, while other provisions apply exclusively to K-12 schools. Below are some significant differences in how the above apply to K-12 institutions:

  • Notice to the School: Elementary and secondary schools must require all non-confidential employees to notify the Title IX Coordinator when the employee has information about conduct that may reasonably constitute sex discrimination under Title IX. (34 C.F.R. § 106.44(c).)
  • Informal Resolution: Informal resolution is not permitted where a complaint includes allegations that an employee engaged in sex-based harassment of an elementary school or secondary school student. (34 C.F.R. § 106.44(k).)
  • Grievance Procedures: The grievance procedures set forth in Section 106.46 of the regulations do not apply to elementary and secondary schools.
  • Students with Disabilities: For the first time, the regulations address the intersection of Title IX and federal disability law in the elementary and secondary school setting. If a complainant or respondent is a student with a disability, the Title IX Coordinator must consult with the student’s Individualized Education Program (IEP) team to determine how to comply with the requirements of the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act throughout the recipient’s implementation of grievance procedures. (34 C.F.R. § 106.44(g).)
  • Parental Rights: The new regulations differentiate between the legal rights of parents of minors (i.e., under 18) and parents of older students. For example, parents of minors may file a complaint with the Title IX Coordinator on their child’s behalf. The regulations also make an exception for the confidentiality of personally identifiable information obtained in the course of Title IX procedures, providing that the school may disclose such information to a parent, guardian, or other authorized legal representative with the legal right to receive disclosures. (34 C.F.R. §§ 106.44(j), 106.45(a).) Any disclosure to a parent or guardian must comply with overlapping law, including FERPA.

Complying with the New Regulations

Liebert Cassidy Whitmore attorneys are closely monitoring developments in relation to this Special Bulletin and are able to advise on the impact this could have on your organization. If your institution needs training or assistance with Title IX and compliance with overlapping federal and state law, including the implementation of policies, procedures, or forms, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.

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