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New Title IX Regulations Impose New Responsibilities and Risks on Schools

  

Understand the changes in Title IX regulations that impact your institution                                                                                                                                                                                                        

A Look at New Potential Risks

On April 19, 2024, the Department of Education (DOE) issued new regulations addressing sex discrimination in K-12 and college and university programs. These regulations (the 2024 Regulations) supersede the Title IX regulations issued by DOE in 2020 (the 2020 Regulations).

The 2024 Regulations include several significant revisions that will impose additional responsibilities, financial commitments, and potential risks for all affected schools.

Broader Scope of Coverage (§106.44)

The 2020 Regulations set forth specific requirements for schools’ responses to incidents of “sexual harassment” as a form of sex discrimination, including providing supportive measures when a school became aware of an incident of sexual harassment and explicit grievance procedures to be followed when a student or employee filed a formal complaint of sexual harassment. However, these protocols and procedures did not apply to other types of alleged sex discrimination. Rather schools were required to adopt procedures to address sex discrimination on their campuses, but those procedures were largely left to each school to establish, provided they adequately addressed reported incidents of discrimination.

Under the 2024 Regulations, the mandated protocols and procedures outlined therein now apply to all types of sex discrimination.

Under these new regulations, a school must respond “promptly and effectively” any time that it has “knowledge of conduct that reasonably may constitute sex discrimination in its education program or activity.” This includes an obligation for those in administration leadership, teaching, or advising roles to notify the Title IX coordinator when they become aware of potential sex discrimination, and other employees to either notify the Title IX coordinator or provide information to the person who reported the potential sex discrimination. These rules do not apply to confidential employees as defined in the 2024 Regulations.

In addition, even if an individual does not file a complaint, the Title IX coordinator must determine whether to initiate a complaint regarding sex discrimination and the ensuing grievance procedures.

Even if no complaint is initiated, the school must provide supportive measures and steps to ensure that the sex discrimination does not continue or reoccur.

Broadened Scope of Complainants (§106.2 and §106.45)

Under the 2020 Regulations, only an employee or student participating in or attempting to participate in a school’s educational program or activity could file a complaint, which, in turn, required the school’s initiation of formal grievance procedures, including an investigation and hearing.

Under the 2024 Regulations, in cases of sex-based harassment, a complaint may be initiated by a student or employee or former student or employee or other person who is alleged to have been subjected to conduct that could constitute sex discrimination at the time they were participating in the school’s education program or activity.

For all other types of sex discrimination, “complainants” will now include any student or employee or former student or employee as well as “any other persons…participating in or attempting to participate in a recipient’s education program or activity.” Consequently, a student who has graduated or an employee who has left employment may file a complaint alleging sex discrimination, even if they were not subjected to the conduct in question, and the school is required to respond.

Further, the preamble to the 2024 Regulations notes that the term “other persons” may include individuals who are not employees or students but may be involved in a school’s program or activities such as a guest lecturer, attendee at a school sporting event, or volunteer.

Broadened Scope of Actionable Complaints (§106.2)

Under the 2020 Regulations, an incident of sexual harassment must have occurred within the recipient’s educational program or activity. Consequently, alleged incidents of sexual harassment that may have occurred off campus, outside of school housing or other facilities, at a local bar, or outside of the United States were generally exempt from the response requirements under the 2020 Regulations.

The 2024 Regulations now provide that any conduct that is subject to a “school’s disciplinary authority” is subject to the responsive requirements under the Title IX regulations. Consequently, if a school’s code of conduct provides that any incident of sex discrimination or sexual harassment involving students or employees, regardless of location, is a violation of the school’s code of conduct, the 2024 Regulations provision would extend the responsive requirements of a formal grievance procedure under Title IX to those incidents, notwithstanding that they may have occurred outside of the school’s education programs or activities.

Also see the discussion under Sex-Based Harassment below regarding the expanded scope of coverage.

Sex-Based Harassment (§106.2 and §106.11)

As noted above, the 2020 Regulations mandated schools’ responses to “sexual harassment” consistent with the requirements under the 2020 Regulations. The 2024 Regulations expand the scope of coverage to all types of sex discrimination, and the three types of sexual harassment identified in the 2020 Regulations are now defined as “sex-based harassment.”

Two of the three “prongs” or definitions of sexual harassment under the 2020 Regulations — quid pro quo harassment and “Davis standard harassment” — have been revised.

Quid pro quo behavior is now defined as:

An employee, agent, or other person authorized by the recipient to provide an aid, benefit, or service under the recipient’s education program or activity explicitly or impliedly conditioning the provision of such an aid, benefit, or service on a person’s participation in unwelcome sexual conduct.

The former “Davis standard harassment” is now referred to as “Hostile environment harassment” and 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 in or benefit from the recipient’s education program or activity (i.e., creates a hostile environment). Whether a hostile environment has been created is a fact-specific inquiry that includes consideration of the following:

  • The degree to which the conduct affected the complainant’s ability to access the recipient’s education program or activity;
  • The type, frequency, and duration of the conduct;
  • The parties’ ages, roles within the recipient’s education program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the conduct;
  • The location of the conduct and the context in which the conduct occurred; and
  • Other sex-based harassment in the recipient’s education program or activity

Specific offenses remain as previously defined:

  • Sexual Assault
  • Dating Violence
  • Domestic Violence
  • Stalking

Under the 2020 Regulations’ definition, quid pro quo harassment only extended to behavior by employees of a recipient. Under the 2024 Regulations, potential respondents may include an “employee, agent or other person authorized to provide an aid, benefit or service under the school’s education program or activity.” As a result, a part-time independent contractor, coach, or instructor, though not an employee, who is alleged to have committed quid pro quo sexual harassment may be a respondent and trigger the grievance responses under the 2024 Regulations.

Further, the Davis standard definition of sexual harassment under the 2020 Regulations has been revised.

Under the 2020 Regulations, the conduct in question must be “severe, pervasive and objectively offensive,” while under the 2024 Regulations, the behavior must be “subjectively and objectively offensive” and “severe or pervasive.” As a result, the threshold for finding a violation no longer requires that the conduct in question be both “severe and pervasive.” This behavior is also now termed “hostile environment” sex-based harassment.

The 2024 Regulations also note that a recipient has an obligation to address a sex-based hostile environment when some conduct alleged to be contributing to the hostile environment occurred outside of the school’s education program or activity or outside of the United States. The 2020 Regulations did not extend the application of Title IX to these broader areas of coverage.

Monitoring for Barriers to Reporting (§106.44)

Title IX coordinators are now mandated to monitor circumstances that may impair reporting of sex discrimination on campus, implement curative measures for such failures, continue to evaluate the effectiveness of those corrective measures, and modify them as may be required.

Live Hearings (§106. 45 and §106.46(g))

Colleges and universities are no longer required to, but may, have live hearings. The decisionmaker must still evaluate all of the evidence and have the opportunity to question the parties and the witnesses if the credibility of a party or witness is in issue before making a determination regarding the outcome of the matter.

Broader Scope of Discrimination on the Basis of Sex (§106.10)

The 2024 Regulations provide that discrimination on the basis of sex includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, or gender identity. The issues related to gender identity and the rights of transgender individuals are subject to legislation and political discourse in many states. Currently, more than 25 states have filed suits challenging the 2024 Regulations’ scope of coverage as they relate to gender identity, and this remains a fluid topic. As these issues are resolved, schools will ultimately be required to address the scope of coverage of these Regulations, including the broadened requirements under the 2024 Regulations addressing pregnancy and related issues.

Employee Training (§106.8(d))

All school employees are required to undergo annual training to recognize potential incidents of sex discrimination. They must also be trained on their obligations to report those incidents to the Title IX coordinator and advise potential complainants of their rights under their school’s Title IX policy.

All individuals involved in a school’s Title IX processes, i.e., Title IX coordinator, investigator, decisionmaker, et al. are required to undergo annual training regarding Title IX.

When These Changes Go into Effect

These 2024 Regulations become effective on August 1, 2024. By that date, all schools are required to revise their Title IX policies and procedures to ensure compliance with the 2024 Regulations.

Burdens and Risks of These New Regulations

This article merely highlights several of the significant changes and provisions of the 2024 Regulations. Clearly, these provisions will impose significant burdens as well as risks of non-compliance on schools.

Obvious burdens include the time required for policy revisions, training of personnel, and assurance of the required responses to alleged incidents of sex discrimination, the coverage of which has now been broadly expanded.

These requirements for many schools will also necessitate financial commitments to provide staffing to address the broader scope of coverage and mandated responses under the new 2024 Regulations.

Finally, litigation by both complainants and respondents regarding Title IX and sexual harassment and discrimination issues on college campuses has increased dramatically over the past several years. A school’s failure to implement policies and protocols consistent with these new 2024 Regulations, or a failure to follow these implemented procedures during the course of responses, will expose recipients to potential claims by both complainants and respondents. Comprehensive implementation followed by ongoing assurances of compliance will help to mitigate the risk from these types of claims.

What to Do Now

Steps in implementing and effectively addressing these challenges will begin with every school’s Title IX coordinator and other personnel securing a comprehensive knowledge and familiarity with these new 2024 Regulations.

The next step will be updating and adopting new and/or revised policies to incorporate the requirements contained in the new 2024 Regulations.

Compliance will also require schools to implement annual training programs for all employees, as well as more comprehensive training for Title IX personnel.

Further protocols and procedures for monitoring, reporting, and addressing alleged incidents of sex discrimination (including sex-based harassment) will need to be adopted for all employees.

Recordkeeping requirements will need to be updated as well.

Finally, to ensure compliance with the 2024 Regulations as well as mitigate the risks of litigation, ongoing campus audits should be conducted to confirm that the policies and procedures adopted under the 2024 Regulations are being implemented and followed. The success of any program ultimately depends upon implementation and adherence to the plan.

Many challenges, from policy updates to training and audits, lie ahead for schools in implementing these 2024 Regulations.

1 Schools are referred to as “recipients” in the Regulations.

References are to Title 34 Part 106 of the Code of Federal Regulations






5/29/2024

By Patrick B. Mathis, Co-Founder & Managing Member, Title IX Solutions, LLC


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