On April 19, 2024, the U.S. Department of Education (DOE) issued the long-awaited amended Title IX regulations, which include significant changes from the 2020 regulations. School districts have until August 1, 2024, to come into compliance with the new 2024 regulations. The regulations (34 CFR part 106) implement Title IX of the Education Amendments of 1972 (20 USC 1681 et seq.) which prohibits discrimination on the basis of sex in education programs or activities receiving federal funds. In addition to the new regulations, the DOE also issued a helpful fact sheet and draft policy guidance.
The 2024 regulations will significantly impact how public school districts approach sex discrimination and sexual harassment under Title IX. Below are some of the important amendments:
Broader Definition of “Hostile Environment”
- 2020 Regulations: Under the 2020 regulations, “hostile environment” sexual harassment had to be “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” This created a pretty high bar for conduct to qualify as sexual harassment under Title IX.
- 2024 Regulations: Under the 2024 regulations, “hostile environment” sexual harassment is defined as unwelcome sex-based conduct that “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.” The 2024 regulations also include a number of factors that schools must consider in determining whether the alleged conduct created a hostile environment, including the age of the parties; the type, frequency, and duration of the conduct; and the location and context in which the conduct occurred. These changes will likely result in schools finding that more conduct falls within the Title IX definition of sexual harassment than under the definitions in the 2020 regulations.
Inclusion of Protections Based on Gender Identity and Sexual Orientation
- 2020 Regulations: The 2020 regulations did not explicitly provide protections against harassment based on gender identity and sexual orientation.
- 2024 Regulations: The definition of sex discrimination and harassment under the 2024 regulations includes conduct based on gender identity and sexual orientation. While discrimination and harassment on the basis of gender identity and sexual orientation have long been prohibited under Oregon and Washington law, these protections for LGBTQ+ individuals are now explicitly covered under Title IX as well. Notably, the regulations provide that “adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with the person’s gender identity subjects a person to more than de minimis harm on the basis of sex.”
Broader Jurisdictional Scope
- 2020 Regulations: The primary focus for determining jurisdiction in the 2020 regulations was on whether the conduct occurred in a school’s “education program or activity.”
- 2024 Regulations: The scope of a school’s jurisdiction under the 2024 regulations is broader. Under the 2024 regulations, schools have an obligation to address “conduct that is subject to the recipient’s disciplinary authority.” The 2024 regulations clarify that this means that a school “has an obligation to address a sex-based hostile environment under its education program or activity, 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.”
Grievance Process Flexibility
- Schools will have more flexibility in determining the grievance process for responding to sex discrimination and sexual harassment allegations under Title IX. For instance, the 2024 regulations do not require an opportunity for parties to pose questions to each other. The 2024 regulations also allow for the investigator or Title IX coordinator to also serve as the decision-maker.
Grievance Process Required for Complaints of Sexual Harassment and Sex Discrimination
- 2020 Regulations: The 2020 regulations only mandated the grievance process for complaints of sexual harassment.
- 2024 Regulations: The 2024 regulations require schools to apply its Title IX grievance process to complaints of both sexual harassment and sex discrimination. Under the 2024 regulations, allegations of sex discrimination by another person (as opposed to a complaint concerning a school district’s policies, practices, or procedures) must be addressed under the school district’s Title IX grievance procedures.
Protections for Students with Disabilities
- If one of the parties to a complaint is a student with a disability receiving special education services through an Individualized Education Program (IEP) or through a 504 Plan (a plan based on protections under Section 504 of the Rehabilitation Act), the district’s Title IX Coordinator must consult with one or more members of the student’s IEP or 504 Plan team regarding implementation of supportive measures and through the grievance procedure.
More Availability of Informal Resolution
- The 2024 regulations allow for broader use of informal resolution. Under the 2020 regulations, informal resolution was only available following a formal complaint.
These are just some of the highlights of the 2024 regulations, and districts should be prepared to review their policies and procedures and provide updated training before the August 1, 2024, implementation deadline.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
