On April 19, 2024, the U.S. Department of Education released its final Title IX regulations. The final regulations go into effect on August 1, 2024. The Department’s proposed Title IX regulations generated over 240,000 comments. The final regulations reflect the Department’s modifications resulting from the comments. However, the majority of the notable changes from the proposed regulations are included in these final regulations, albeit with slight adjustments.
This Alert discusses some of the final regulation’s major changes that higher education institutions need to be aware of before the regulations take effect.
What Are the Notable Changes?
Expanded Scope of Prohibited Sex Discrimination.
The 2024 regulations clarify that the prohibition of “discrimination on the basis of sex” now includes “discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
Additional and Expanded Definitions
“Sex-based harassment” is a new addition to the definitions and is defined as, “a form of sex discrimination and means sexual harassment and other harassment on the basis of sex, […] that is:”
- Quid pro quo harassment,
- Hostile environment harassment, or
- A specific offense (sexual assault, dating violence, domestic violence, or stalking)
Hostile environment harassment notably requires a lesser degree of conduct to establish a hostile environment. It 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 or benefit from the recipient’s education program or activity.” The 2024 regulations also include a number of factors that institutions must consider when making a fact-specific inquiry about whether a hostile environment has been created.
Expanded Geographical Application
The final regulations expand the application of Title IX with respect to institutions and their education programs and activities. The final regulations specify that they apply to sex discrimination occurring under a recipient’s education program or activity in the United States.
The final regulations explain that conduct that occurs under a recipient’s education program or activity includes, but is not limited to: (1) conduct occurring in a building owned or controlled by a student organization that is officially recognized by a postsecondary institution; and (2) conduct that is subject to the recipient’s disciplinary authority.
Moreover, the new regulations require addressing a sex based hostile environment in an institution's education program or activity in the United States, even where some of the alleged conduct occurred outside of an institution’s program or activity or located outside of the United States. Given the expanded application, institutions will need to closely evaluate the context of the alleged harassment—regardless of where some of the conduct occurred—when determining their obligations to respond to a Title IX complaint.
Heightened Response Obligations – Elimination of “Deliberately Indifferent” Standard.
The new regulations put more onus on institutions to ensure they are responding to complaints than the current requirements. Currently, the regulations require institutions to respond promptly in a matter that is not “deliberately indifferent” when the higher education institution has “actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States.” Significantly, the final regulations eliminate the “deliberate indifference” standard. The final regulations will now require institutions to respond promptly and effectively when they have “knowledge of conduct that reasonably may constitute sex discrimination in its education program or activity.” 106.44(a)(1).
Under the 2020 regulations, “actual knowledge” means notice of sexual harassment or allegations of sexual harassment to the (1) Title IX Coordinator or (2) any institution official who has authority to institute corrective measures. 34 C.F.R. § 106.30(a). However, as of August 1, 2024, institutions will have an obligation to respond to complaints that may constitute sex discrimination regardless of the type of employee who receives the complaint or has knowledge of the alleged conduct. There is an exception for confidential employees.
Additional Training Obligations
The 2024 regulations require institutions to ensure that their employees receive the appropriate training reflecting the employee’s duties under Title IX. Institutions must provide training to employees promptly upon hiring, promptly when an employee has a change of position with duties that require additional training requirements, and annually thereafter.
At minimum, all employees must receive training on the institution’s obligation to address sex discrimination in its education programs and activities, the scope of conduct that constitutes sex discrimination under Title IX (including the definition of “sex-based harassment”), and all applicable notification and information requirements when they are informed of a student’s pregnancy or related conditions and when they have knowledge of conduct that reasonably may constitute sex discrimination. Certain employees (e.g., investigators, decisionmaker, persons responsible for implementing grievance procedures or having authority to modify or terminate supportive measures, facilitators of the informal resolution process, and Title IX Coordinators and designees) have additional more specific training requirements.
Challenging Supportive Measures
Institutions must continue to offer and coordinate supportive measures for both the complainant and the accused, and the supportive measures may not unreasonably burden either party. Importantly, institutions cannot impose supportive measures for punitive or disciplinary reasons.
A major change in the final regulations is a party’s ability to seek modification or reversal of the decision to provide, deny, modify, or terminate a supportive measure(s) applicable to that party. Institutions have flexibility to determine what “timely” means. If a party challenges a supportive measure applicable to them, an impartial employee who has the authority to modify or reverse the challenged supportive measure and is someone other than the employee who issued the challenged supportive measure must review whether the challenged supportive measure was inconsistent with the definition of “supportive measures.”
Finally, if circumstances materially change, institutions must provide the parties with the opportunity to seek additional modifications to a supportive measure applicable to them.
More Flexibility in the Grievance Procedures
Perhaps the most significant change in procedures arising out of the final regulations is that institutions may now revert to the single investigator model that was in effect pre-2020 regulations. This means that as of August 1, 2024, the investigator and the decisionmaker can be the same person. This is expected to reduce the burden many institutions (and in particular smaller institutions) felt under the 2020 regulations.
The second significant procedural change is that live hearings are no longer mandatory for sexual harassment complaints. And the new regulations replace the cross-examination requirement with questioning by the decision maker or investigator for sex-based sexual harassment complaints.
Finally, the final regulations require institutions to use the preponderance of evidence standard to determine whether sex discrimination occurred, unless they use the clear and convincing standard for other comparable proceedings. Under the 2020 regulations, institutions could elect whether to use the preponderance of evidence standard or the clear and convincing standard.
Additional Protections for Pregnancy and Related Conditions
The Title IX regulations have prohibited discrimination based on pregnancy or related conditions, including childbirth, termination of pregnancy, and recovery since 1975. The final regulations include protections for lactation as a “related condition.”
One notable change that should be a focus of an institution’s updated Title IX training includes employee response obligations when an employee is informed by a student (or legal representative) of the student’s pregnancy or related conditions. Unless the employee reasonably believes the Title IX Coordinator has already been notified, the employee must promptly provide the student (or their representative) with the Title IX Coordinator’s contact information and inform the student (or their representative) that the Title IX Coordinator can coordinate specific actions to prevent sex discrimination and ensure the student’s equal access to the institution’s education programs and activities.
The institution subsequently has obligations to ensure the non-discrimination and equal access, which includes making reasonable modifications to the institution’s policies, practices, or procedures based on individualized needs. Institutions are not obligated to make modifications that would fundamentally alter the nature of their education programs or activities.
When Do the Final Regulations Take Effect?
The regulations take effect on August 1, 2024, just in time for the 2024-2025 academic school year.
What Next Steps Should Institutions Take?
Higher education institutions should promptly begin the process of revising their policies, procedures, and training programs so that they are ready to implement the changes to the Title IX regulations by the August 1 effective date and by the time students return to campus for the 2024-2025 academic year. Institutions should also monitor any court challenges that could impact the implementation of the final regulations.
Stay tuned for an upcoming Webinar in the next few weeks to review the changes in depth.