The U.S. Department of Education released the final Title IX Rule on April 19, 2024, and officially published it in the Federal Register on April 29, 2024. The final rule applies to institutions of higher education and K-12 institutions receiving federal funding. It is scheduled take effect on August 1, 2024. The final rule contains significant changes including expanding the scope of complaints that institutions must investigate, increasing employee reporting responsibilities and clarifying institutional obligations regarding discrimination based on pregnancy or related conditions. The final rule is not retroactive—it only applies to complaints of sex discrimination regarding alleged conduct that occur on or after the effective date. Below is a summary of key changes.
Scope of Sex Discrimination
The final rule clarifies that sex discrimination includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation and gender identity. It provides that Title IX applies to all sex discrimination occurring under an institution's education program or activity in the United States and provides additional detail about what conduct is covered. The final rule states that preventing a person from participating in an education program or activity consistent with their gender identity constitutes more than ade minimisharm and therefore violates Title IX.
Sex-Based Harassment
The term "sexual harassment" defined under the 2020 Title IX Regulations has been amended to "sex-based harassment." The definition retains the three key aspects of "sexual harassment" from the 2020 regulations:quid pro quoharassment, hostile environment harassment and specific sexual violence offenses (sexual assault, dating violence, domestic violence and stalking). However, the definition for "hostile environment" is expanded under the final rule to include: "Unwelcome sex-based conduct, based on the totality of the circumstances, that 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 mirrors the Title VII (applicable to employees) standard for a hostile environment as the conduct only needs to be severe or pervasive, not both.
The final rule also clarifies that an institution 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 education program or activity or outside the United States.
Complaints
The final rule eliminated the "formal complaint" under the current rule, which provides that an institution must receive a signed, written complaint prior to initiating a Title IX investigation or offering informal resolution options. Starting August 1, complaints can be made orally or in writing and with or without a signature.
Notice
The final rule amended an institution's responsibility to respond to Title IX complaints when it has "actual knowledge" to when it simply has "knowledge" of conduct that reasonably may constitute sex discrimination in its education program or activity.
Reporting Obligations
The final rule expands employee reporting obligations. Instead of designating which employees must inform the Title IX coordinator of conduct that violates Title IX, under the final rule, any employee, except those deemed as "confidential," must notify the Title IX coordinator. Alternatively, a reporting employee can provide the Title IX coordinator's contact information and information about how to make a complaint of sex discrimination. There are three categories of confidential employees who are not required to notify the Title IX coordinator—(1) an employee whose communications are privileged or confidential under federal or state law; (2) an employee designated as confidential for the purpose of providing services to persons related to sex discrimination; and (3) an employee who is conducting an institutional review board-approved human-subjects research study designed to gather information about sex discrimination. Instead, these confidential employees must provide information to anyone who informs them of conduct that reasonably may constitute sex discrimination about their status as confidential for purposes of Title IX, how to contact the Title IX coordinator, how to make a complaint and how the Title IX coordinator can help.
The Title IX coordinator must also monitor the institution's education program or activity for barriers to reporting information about conduct that reasonably may constitute sex discrimination and take steps reasonably calculated to address such barriers.
Grievance Procedure
Currently, institutions must have grievance procedures to address sexual harassment. The final rule expands this requirement to all sex discrimination complaints (not limited to complaints of sexual harassment). Sex discrimination grievance procedures are listed in 34 CFR §106.45 and include notice of allegations to the parties, equitable treatment of complainants and respondents, and burden on the institution to gather evidence and decide what is relevant and impressible.
Postsecondary institutions must also implement additional grievance procedures for sex-based harassment complaints. These additional procedures are listed in 34 CFR §106.46 and include written notice to the parties of allegations, dismissal, delays, meetings and proceedings; equal opportunity for each party to have an adviser of the party's choice; and a process for assessing credibility when credibility is in dispute and relevant. A live hearing is no longer required; an institution can determine appropriate processes and procedures to determine if a Title IX violation exists. If an institution opts to provide a live hearing, the institution must publish procedures for such a hearing within its Title IX policy.
Discrimination Based on Pregnancy or Related Conditions
Since 1975, Title IX regulations have prohibited discrimination based on pregnancy or related conditions, including childbirth, termination of pregnancy and recovery. The final rule updates these existing protections. It clarifies that an institution must protect students, employees and applicants from discrimination based on pregnancy, childbirth, termination of pregnancy, lactation, related medical conditions or recovery. This protection includes providing reasonable modifications for students, reasonable break time for employees for lactation and a clean, private lactation space for both students and employees.
Additionally, once a student or the student's representative notifies the Title IX coordinator, the institution must:
- Inform the student of the institution's obligations to students who are pregnant or experiencing pregnancy related conditions as well as provide the institution's notice of nondiscrimination;
- Provide the student with the option of individualized, reasonable modifications as needed to prevent discrimination and ensure equal access to the institution's education program or activity;
- Allow the student a voluntary leave of absence for, at minimum, the medically necessary time period and reinstatement upon return; and
- Ensure the student's access to a clean, private space for lactation.
Training
Under the final rule, all employees must be trained on the institution's obligation to address sex discrimination, 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. Additionally, Title IX personnel involved in supportive measures, investigations, informal resolution and decision-making must be trained on the institution's grievance procedures and how to serve impartially, including avoiding prejudgment of the facts at issue, conflicts of interest and bias. Title IX coordinators and their designees must also be trained on their specific responsibilities, the institution's recordkeeping system, as well as any other training necessary to coordinate the institution's compliance with Title IX. Employee training must be conducted promptly upon hire and annually thereafter.
Athletics
The Department's rulemaking process is still ongoing for a Title IX regulation related to athletics. The Department proposed amendments to its athletics regulations in April 2023, but has yet to publish a final rule.
Although we expect that there will be numerous legal challenges to the final rule (two lawsuits have already been filed), it is effective on August 1, 2024, which does not give institutions much time to prepare for implementation. Institutions should review current Title IX policies to ensure compliance and conduct required training.
For More Information
If you have any questions about this Alert, please contact Katherine D. Brodie, Edward Cramp, Anthony J. Guida Jr., Kristina Gill, Jennifer D. DeMay, Jessica S. High, Matthew Steinway, any of the attorneys in our Higher Education Group or the attorney in the firm with whom you are regularly in contact.
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