MAJOR CHANGES TO TITLE IX EFFECTIVE AUGUST 1, 2024 

 

By Daniel Woody, Esq., Federal Litigation and Appellate Counsel, and Michael Connolly, Esq., Supervising Partner of The Special Education Department 

 

On April 19, 2024, the U.S. Department of Education (DOE) released its final regulations for the implementation of Title IX of the Education Amendments Act of 1972 (Title IX), following a period of almost two years in which the DOE solicited comments on the proposed rulemaking that it released in July of 2022.

 

Notably, while the final regulations left many of the due process protections from the previous rulemaking in place, the DOE’s regulations also made some critical changes, which will provide greater protections to survivors of sexual violence and sexual harassment. The amendments to the Title IX regulations will significantly affect the way in which school districts and colleges handle Title IX complaints.

 

Discussed in this article is the Title IX framework and the DOE’s changes to the Title IX regulations. The final regulations provide greater protections to survivors of sexual harassment and assault by changing the definition of “sex-based harassment;” lowering the standard of proof in Title IX proceedings; increasing protections for pregnancy or related conditions, sexual orientation, and gender identity; and increasing the circumstances of when a school must provide supportive measures to survivors, among other changes.

 

A second MLO Minute will follow this article explaining the ways in which our firm uses Title IX to advocate for survivors of sex and gender-based discrimination.

 

Background on Title IX

Over a half-century ago, Title IX was implemented in part to ensure that any federally funded education program did not discriminate against any person “on the basis of sex”. Surviving many challenges through the decades, it is arguably one of the most significant pieces of civil rights legislation in America’s history. Berniece Sandler, the godmother of Title IX stated that, “Title IX is probably the most important law passed for women and girls in Congress since women obtained the right to vote in 1920.” Title IX is patterned after Title VI of the Civil Rights Act of 1964, the portion of the landmark law that prohibits discrimination on the basis of race, color, and national origin in federally funded programs.

 

While it is one of the most important pieces of civil rights legislation, it may also be the most misunderstood. Title IX is most often identified with promoting opportunities for participation in athletics yet neither the word “sports” nor the word “athletics” are mentioned in the original 37-word statute. It was feared that when Title IX was passed, it would lead to the destruction of men’s college sports. Of course, that has not occurred. Rather, since the passage of Title IX, participation in and revenue for male athletics has continued to grow and the United States has become the global leader in women’s sports by putting men and women on an equal funding scale.

 

Many also know Title IX extends well beyond athletics. It covers virtually any area of the educational experience at a federally-funded institution in which a student could face sex discrimination—whether it is gender-based bullying by a seventh grader or sexual assault on a college campus or differential treatment due to pregnancy or marital status.

 

The final regulations reinforce that schools must not intimidate, threaten, coerce, or discriminate against someone in order to interfere with their Title IX rights or because they reported sex discrimination, including sexual violence or other forms of sex-based harassment, or participated in, or refused to participate in, the school’s Title IX process. The final regulations also make clear that schools must protect students from peer retaliation after filing a Title IX complaint or reporting sex or gender-based discrimination.

 

The DOE’s newest rulemaking is scheduled to take effect on August 1, 2024.

 

Changes to Title IX

Expanded Definition of Sexual Harassment. Critically, the Biden DOE regulations change and broaden the definition of sexual harassment that qualifies under Title IX. Previously, conduct had to be “severe, pervasive, and objectively offensive,” a high bar that pushed some types of misconduct outside the purview of Title IX. However, schools now must address any unwelcome sex-based conduct that is so “severe or pervasive” that it limits a student’s equal access to their education.

 

This rule change widens the type of misconduct that institutions are required to address.

 

In the former regulations, a hostile environment existed only if harassment was so severe, pervasive, and objectively offensive that it effectively denied a person equal access to an educational program or activity. The new standard is broader in that the harassment must be subjectively and objectively offensive and so severe or pervasive that it limits or denies a person’s ability to participate in the education program or activity. Thus, the definition of hostile environment has been broadened from “severe and pervasive” to “severe or pervasive” and the required effect of the harassment is expanded from including not only a denial to participate, but also a limiting of participation. The regulations also provide guidance in determining whether a hostile environment exists by supplying a series of factors that a school must consider as part of their hostile environment analysis.

 

Lower Standard of Proof. The Trump-era regulations mandated the use of a higher standard of evidence, known as “clear and convincing evidence,” when a school is adjudicating a sexual harassment matter. The Biden administration’s regulations permit institutions to choose between using the “preponderance of the evidence” standard (the lower standard) or the “clear and convincing evidence” standard (the higher standard). However, the standard of proof must be clearly stated in the school’s Title IX policies and the school may not use the lower standard of proof if it uses a higher standard in similar administrative proceedings.

 

No Requirement for In-Person Cross-Examination. Under the Trump-era regulations, the DOE required schools to hold live hearings, with live cross-examinations. The Biden DOE did not remove the requirement for live hearings, but schools will no longer be required to hold in-person cross-examinations. The new regulations provide greater protection for survivors during cross-examination by allowing them to request alternative arrangements, such as using separate rooms or screens, to avoid direct confrontation with the respondent.

 

Formal Inclusion of LGBTQI+ Students. The Biden administration’s DOE expanded Title IX to formally include “gender identity” in the definition of “sex.” Previously, the rulemaking under the Trump administration did not specifically address whether gender identity was included in the definition of sex. However, in 2020, the United States Supreme Court held in Bostock v. Clayton County, 590 U.S. 644 (2020) that gender identity is included within the protections of Title VII of the Civil Rights Act of 1964, which is the federal law that protects employees from discrimination in the workplace on the basis of sex. Many courts then wisely began applying Bostock in the Title IX context.

 

With this new rulemaking, Title IX now prohibits discrimination and harassment based on sexual orientation, gender identity, and sex characteristics in schools that receive federal funding. Note, however, that the rule regarding sports eligibility has been separated from the proposed changes and its implementation is delayed.

 

Most importantly though, these new rules protect LGBTQI+ students who face gender-based bullying and violence and who are injured as a result of a school’s deliberate indifference thereof.

 

Increased Supportive Measures. The new rules emphasize the importance of providing supportive measures to survivors of sexual harassment or assault, regardless of whether a formal Title IX complaint is filed. These measures are intended to ensure the safety and well-being of the individuals involved and may include counseling, academic accommodations, and changes in housing or class schedules.

 

Retaliation Protections. The Biden Administration’s regulations strengthen protections against retaliation for individuals who report sexual harassment or assault. This includes prohibiting institutions from taking adverse actions against survivors, such as intimidation, threats, or harassment, in response to their complaints.

 

Formal Inclusion of Off-Campus Assaults. In the past, it was unclear where the protections of Title IX end. The new regulations clarified that Title IX protections extend to off-campus incidents that occur in the context of an education program or activity, provided the institution exercises substantial control over the conduct in question and the context has a substantial effect on the victim’s access to education. This clarification aimed to address situations where students may experience sexual harassment or assault off-campus but still within the context of their education, such as at school-sponsored events or activities.

 

Broadening the Definition of “Complaint.” The definition of “complaint” has been changed and no longer requires a signed complaint. Complaint now consists of an oral or written request to the school that objectively can be reg as a request for the school to investigate and make a determination about alleged sex discrimination.

 

A comprehensive summary of all of the changes are available from the U.S. Department of Education’s website.

 

Look out for a follow-up MLO Minute explaining how our firm uses Title IX to advocate for survivors of sexual harassment and assault and the types of claims available to survivors. Do not hesitate to contact us by clicking here if we can be of assistance.