Update: U.S. Department of Education Final TITLE IX Regulations Effective August 1 Increase Scope Against Sex Discrimination

This is part of a one of a two-part series on the U.S. Department of Education Final Title IX Regulations that went into effect on August 1, 2024.

PART ONE

The United States Department of Education has promised an equal opportunity to learn and thrive in our nation’s schools free from sex discrimination for more than 50 years. Enacted in 1972, Title IX is a federal civil rights law that prohibits discrimination on the basis of sex in educational programs and activities. Title IX has evolved over the years  and the most recent regulations which go into effect on August 1, 2024, include substantial changes from the  Trump administration 2020 regulations.

The 2024 Title IX regulations expand and clarify key provisions of Title IX to promote educational equity and opportunity for students across the country. The final regulations are effective on August 1, 2024, and apply to complaints of sex discrimination regarding alleged conduct that occurs on or after that date. You can read the press release summarizing the final regulations here.

We checked in with Bruna Pedrini, Director in the Employment and Labor practice group who represents educational institutions, Fennemore Phoenix, and Mallory Nordberg, Associate, Fennemore Denver for an update on Title IX and insights on associated trainings to ensure compliance.

Can you provide a high-level update on the Final Rule under Title IX effective August 1, 2024, and summarize what has changed?

Sure. Title IX regulations prohibit sex- based discrimination in education programs and activities, specifically for public district and charter schools, private schools, universities, and local and state educational agencies that receive federal financial assistance.

The 2024 Title IX Regulations broaden the definition of sex-based discrimination and revive standards that were  in place prior to 2020.  The major areas of change include the following:

•  2024 regulations expand the scope of sex discrimination and prohibition against different or separate treatment  and harassment.

The definition of sex discrimination has been updated to follow the Supreme Court’s Title VII opinion in Bostock v. Clayton County, 590 U.S. 644, 659–62 (2020), to include sexual orientation and gender identity, as well as pregnancy and pregnancy-related conditions and also prohibits treating students, applicants, or employees differently based upon their parental, family, or marital status. 

Schools are also prohibited from treating students differently or separately on the basis of their sex, which now specifically includes LGBTQI+ status, pregnancy, lactation, and medical conditions. The 2024 Rules establish that preventing a person from participating in an education program or activity consistent with their gender identity constitutes more than a de minimis harm and therefore violates Title IX.  Schools are thus prohibited from implementing any policy or practice that denies a student the ability to participate in the school’s education program or activity consistent with their gender identity.

• The 2024 regulations change the standard regarding sex-based harassment. 

The new regulations prohibit sex-based harassment on the basis of sex stereotypes;    sex characteristics; parental, family, or marital status; pregnancy, lactation, and related medical conditions; sexual orientation; and gender identity. Sex-based harassment retains the three key aspects of “sexual harassment” defined under the 2020 regulations: quid pro quo harassment, hostile environment harassment, and specific offenses (sexual assault, dating violence, domestic violence, and stalking).

The new regulations notably revive the severe or pervasive standard for whether conduct constitutes sex-based harassment. Under the 2020 Title IX regulations, harassing conduct had to be severe, pervasive, and objectively offensive. The 2024  standard changes the standard and requires the sex- based conduct in question to be (1) unwelcome, (2) subjectively and objectively offensive, as well as (3) so severe orpervasive (4) that it results in a limitation or denial of a person’s ability to participate in or benefit from the recipient’s education program or activity.

Hostile environment harassment is expanded to be defined as: Unwelcome sex-based conduct, based on the totality of the circumstances, which is (1) subjectively and objectively offensive and (2a) so severe or (2b) so pervasive that it limits or denies an individual’s ability to participate in or benefit from an education program or activity.

This change now mirrors the standards under Title VII for hostile environment harassment, which provides that the offensive conduct need only be severe or pervasive. It need not be both. 

Finally, the 2024 regulations restore and strengthen protection from sexual violence including sexual assault, dating violence, domestic violence, and stalking.

• Update and Increase Responsibilities to Respond to Sex Discrimination Complaints.

The new regulations replace the “actual knowledge and not deliberately indifferent” standard  that triggered required action by an educational institution under the 2020 regulations, and replace it with a requirement that schools respond timely and appropriately when they have knowledge of conduct that reasonably may constitute sex discrimination in its program, and take action to prevent the recurrence of discrimination and remedy its effects.

The 2024 regulations further require that school employees must notify their Title IX Coordinator when they have information that may reasonably rise to the level of sex discrimination, so long as the employee is not a confidential employee.

• Expand scope to cover actions that occur off campus and online.

The new regulations  consider “whether the recipient has disciplinary authority over the respondent’s conduct in the context in which it occurred” and may include conduct that takes place outside the United States and conduct that occurs online.

•  Change in Evidentiary Standard

The 2024 regulations now impose a preponderance of the evidence standard in evaluating evidence of sex-based harassment unless the school uses the clear and convincing evidence standard in all other comparable proceedings.

•  Notice and Procedures

The new regulations require that schools communicate their policies and procedures to all students, employees, and other participants in their programs so that students, parents, and employees understand their rights, and must monitor and address barriers to reporting instances of sex discrimination. This requires a fair, transparent, and reliable process that includes trained, unbiased decisionmakers to evaluate all relevant and not otherwise impermissible evidence.

The rule supports the right of parents and guardians to act on behalf of their elementary school and secondary school children and protects student privacy by prohibiting schools from making disclosures of personally identifiable information with limited exceptions.

The Final Rule eliminates the requirement that different individuals serve in the separate roles of Title IX Coordinator, investigator, and decision-maker in each case. The Department of Education will now permit a “single investigator model.”

Finally, a school “may not impose discipline on a respondent for sex discrimination prohibited by Title IX unless there is a determination at the conclusion of the [school’s] grievance procedures that the respondent engaged in prohibited sex discrimination.” Section 106.45(h)(3). Thus, without a complaint and the fulfillment of all necessary grievance procedures,  the expanded scope can only be addressed through supportive measures and informal resolutions unless there is a separate and supported finding of a violation of a separate school policy.

What do schools and educational Institutions need to do NOW?

• Educational institutions must conduct a thorough review and update of Title IX policies, to include a new definition of sexual harassment, expanded scope of coverage and new procedures for investigating Title IX violations and required training and notices.

• Schools will also need to stay current as litigation has already been filed to enjoin this portion of the Final Rule in many states. 

• Religious institutions will need to evaluate whether and how religious exemptions should or could apply. 

• Additional policies may be required to address parental, family, marital status, and pregnancy discrimination and accommodations.

• Schools should update and conduct training on the expanded definitions, including particular examples of the implications of the broadened scope of “sex discrimination” under the regulations.

What does the Supreme Court ruling on Title IX mean for my state or school?

Twenty-six states have challenging certain provisions of the Final Rule, including the definition of sex discrimination, the prohibition from preventing individuals from accessing sex-separate spaces consistent with their gender identity, and the definition of hostile environment harassment. While their lawsuits are pending, courts have granted preliminary injunctions which bar the implementation of the final regulations. The Department of Education requested a partial stay of the preliminary injunctions to allow other provisions of the final regulations to take effect in the interim. On August 16, 2024, the U.S. Supreme Court denied the government’s request and upheld the injunctions as applied to the entire rule.

The result of the Supreme Court’s ruling means that the 2024 Final Rule is not in effect in 26 states: Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, North Dakota, Nebraska, Oklahoma, Ohio, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming. The 2024 Final Rule is also not effective at any school attended by members (or children of members) of Moms for Liberty, Young America’s Foundation, or Female Athletes United. This means the 2024 Final Rule is effectively blocked in over 400 K-12 schools across 44 states and the District of Columbia until the legal challenges to the regulations are resolved.

Part Two of this series will provide details on the key components of Title IX Training.

Bruna Pedrini is a director in Fennemore’s Employment and Labor practice group with focus in the areas of anti-discrimination, education,  and accessibility law. She has extensive hands on, high level, experience representing K-12 schools, colleges and universities, sports and concert stadiums and venues, as well as builders, developers, and members of the hospitality industry to comply with federal, state, and local civil rights laws. Bruna represents educational institutions in a broad range of discrimination complaints and compliance reviews, sexual misconduct cases, and in policy development and implementation. Bruna served as Chief Counsel of the Civil Rights and Conflict Resolution Section for the Arizona Attorney General’s Office and was a Visiting Professor at the Sandra Day College of Law.

Mallory Nordberg is an associate in Fennemore’s  Business Litigation practice group who works out of our Denver office. Her practice focuses on a broad spectrum of litigation matters, as well as education law, appellate law, labor and employment, civil procedure, and contract disputes.