The U.S. Department of Education recently issued final regulations governing Title IX, the federal civil rights law prohibiting sex-based discrimination in education programs or activities—such as public or private schools, universities, local or state educational agencies, and museums—that receive federal financial assistance. These new regulations, issued on April 19, 2024, and slated to go into effect on August 1, 2024, make significant changes to the prior Title IX regulations issued in 2020. Whereas the 2020 regulations included a narrower definition of sexual harassment and focused on due process concerns, the 2024 regulations—more akin to the regulations under the Obama administration—broaden the focus of Title IX to sex-based harassment more generally.
In particular, the new regulations:
- Define sex-based harassment as a form of sex discrimination. While the definition of sex-based harassment still includes sexual harassment, the new regulations also make clear it includes 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.
- Change the standard of sex-based harassment. Whereas the 2020 Title IX regulations required that harassing conduct be severe, pervasive and objectively offensive, the new regulations adjust the standard to require the conduct in question to be “(1) unwelcome, (2) sex-based, (3) subjectively and objectively offensive, as well as (4) so severe or pervasive (5) 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.” Previously, the 2020 regulations also required that the conduct result in a denial of the person’s ability to participate or benefit in the program or activity; the new regulations expand this to include conduct that limits participation as well.
- Increase schools’ responsibilities in responding to sex discrimination complaints. Schools are specifically required to respond promptly and effectively, utilizing a fair, transparent, and reliable process, when they have knowledge of conduct that reasonably may constitute sex discrimination in its program, and must take steps to prevent the recurrence of discrimination and remedy its effects; must communicate their policies and procedures to all students, employees, and other participants in their programs; must monitor and address barriers to reporting instances of sex discrimination; and 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.
- Previously, the 2020 regulations only required a recipient to respond only when it had actual knowledge of allegations of sexual harassment, and only in a manner that was not deliberately indifferent.
- Impose a preponderance of the evidence standard in evaluating evidence of sex-based harassment. This standard applies unless the school uses the clear and convincing evidence standard in all other comparable proceedings.
- Cover conduct that occurs off campus. The new regulations direct Title IX recipients to focus on “whether the recipient has disciplinary authority over the respondent’s conduct in the context in which it occurred.” This can include conduct that took place outside the United States and conduct that occurred online.
- Provide flexibility for schools to adapt grievance procedure requirements to their educational communities. The regulations allow for discretion and flexibility to schools to account for variations in school size, student populations and administrative structures. They also provide a framework accounting for differences in the age, maturity, needs and level of independence of students in different educational settings, including that the regulations have special requirements for sex-based harassment complaints involving postsecondary students.
- Provide protection from retaliation. The new regulations make clear that schools must protect students from retaliation from other students, and reiterates that schools may not retaliation against anyone for reporting sex discrimination or because they participated in—or refused to participate in—the school’s Title IX process. They also clarify that schools must respond to conduct that reasonably may constitute retaliation using the same procedures used for other forms of sex discrimination.
Significantly, while the 2024 regulations make important changes to how schools and universities must handle Title IX complaints, they do not include changes involving athletics. The agency’s rulemaking process for regulations related to athletics remains ongoing.
