Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex within any educational program or activity that receives federal funding. On April 19, 2024, the United States Department of Education (DOE) released a final rule that reversed several provisions of the May 2020 Title IX regulations. This new rule is expected to result in an increase of Title IX complaints due to the new regulation’s broadened definition of what constitutes sex discrimination, and who is protected under the rule. Below is a discussion of the critical elements of the final rule, which takes effect on August 1, 2024.
Increasing the Definition of Sex Discrimination
The new definition of “sex discrimination” is more inclusive under the final regulation. Title IX will encompass sex-based harassment to be included as a form of sex discrimination. Now, sex discrimination is no longer limited to conduct that is sexual in nature, but to behavior that harasses an individual based on their sex, pregnancy status, gender identity, sex stereotypes or characteristics, sexual orientation, and sexual identity. Creating a hostile environment or engaging in unwanted sex-based conduct can constitute sex-based harassment and result in one’s participation in a school-based activity or program being limited.
Expanding the Geographical Reach of Title IX
The DOE has also expanded the reach of Title IX in the final rule by authorizing the law to apply to conduct that happens off-campus, or even outside of the United States. Now, the final rule will not require schools to ask whether the conduct happened “on” or “off” campus, but whether the school has disciplinary authority over the individual’s conduct in the context in which the behavior occurred. The final rule also makes no distinction between conduct that occurred in person and that which occurred during online classes.
Schools No Longer Need “Actual Knowledge” of Discrimination
Under the 2020 regulations, schools required “actual knowledge” of the sex discrimination having occurred. The final rule has removed the “actual knowledge” requirement. Instead, when schools possess knowledge of conduct that may constitute sex discrimination, the schools are required to act “promptly and effectively” to end such conduct within their educational programs or activities. When a school receives a complaint, it is expected to conduct a reliable and impartial investigation of that complaint. A school is not required to impose disciplinary sanction under Title IX until it has concluded at the end of its grievance procedures that sex discrimination for which the person was accused of has occurred.
As a remedying effect, schools are required to provide individuals who allege sexual harassment or sex discrimination, appropriate supportive measures to restore their access to the school’s program or activity. Schools will also be required to train employees on their obligations to address sex discrimination and when to notify a Title IX Coordinator with the requisite information.
Takeaway
School leadership preparing for the 2024-2025 school year may wish to consider reviewing and revising their current policies and procedures regarding sex discrimination to ensure they are compliant with the new DOE regulations, which is to take effect August 1, 2024. Our attorneys can ensure school employees are properly trained on the new regulations, re-configure an existing plan, or strategize a new comprehensive plan to comply with these new rules.