On April 19, 2024, the U.S. Department of Education released final changes to Title IX of the Education Amendments of 1972 (the law that protects students, faculty, and staff from sex-based discrimination in education programs).  These changes, effective on August 1, 2024, essentially roll back the prior Title IX reforms that went into effect in August 2020.  The 2020 regulations required K-12 and higher educational institutions to revamp their policies and practices in addressing sexual harassment.  Just as local educational agencies (“LEA”) were streamlining their practices in accordance with those changes, the current administration has amended the regulations again.

New, Expanded Definition of Sexual Harassment

Under the 2020 regulations, many forms of sex-based harassment were not considered to be Title IX violations.  Two key changes under the new rule will now bring more types of prohibited conduct under Title IX jurisdiction.  Specifically, the 2024 final rule revises the definition of sexual harassment from conduct that is “severe, pervasive, and objectively offensive,” to include all “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).”

Additionally, current regulations do not require LEAs to address a sex-based hostile environment if the hostile environment results from sex-based harassment that happened outside of the LEA’s education program or activity, or outside of the United States.  However, under the 2024 final rule, LEAs are required to respond even when sex-based harassment contributing to the hostile environment occurred off campus or otherwise outside the LEA’s education program or activity or outside the United Students.

Explicit Protection for LGBTQI+ Students and Employees

The 2024 final rule explicitly includes protections against discrimination based on sexual orientation and gender identity, strengthening the rights of LGBTQI+ students and employees.  Notably, the final rule does not include a proposal released a year ago that would prohibit blanket bans barring transgender students from participating in sports consistent with their gender identity.  This proposed rule is still pending consideration.

Extended Pregnancy Discrimination Protection

The updated rule includes language specifically preventing discrimination based on sex stereotypes and pregnancy, fortifying the requirements that LEA’s provide reasonable accommodations to students and employees who are pregnant or have pregnancy-related conditions.

Streamlined Grievance Process Requirements

While the 2024 final rule expands the definition of sexual harassment, it eliminates many of the requirements that K-12 institutions had to implement when conducting investigations of claims of sexual harassment, including:

• that the parties be entitled to have “advisors” participate in the process;
• that the decision-maker be different from the Title IX Coordinator or investigator; and,
• that LEAs provide for a question/cross-examination process at the decision-making phase.

In short, under the 2024 final rule, LEAs have much more discretion to tailor Title IX policies based on their size, age of students, and administrative structures.  LEAs may now opt to return to a single-investigator model, which allows an individual to serve as both the case decision-maker and Title IX investigator.

The new rule also eliminates some of the additional requirements for post-secondary schools including that the parties be entitled to a live hearing and cross-examination at the decision-making phase.

The new rule streamlines the process in many ways, but also imposes additional requirements on Title IX coordinators and school employees.  For example, under the new rule, certain employees are required to notify the recipient’s Title IX Coordinator of conduct that may constitute sex discrimination under Title IX.

What this Means for School Districts

The new regulations are effective August 1, 2024.  Therefore, LEAs have a little over three months to revise their policies once again.  In addition, LEAs will need to retrain administrators, staff, and students on the updated regulation and policies.

DWK will be releasing more information and resources including an updated, comprehensive guide to K-12 Title IX compliance and training opportunities.  Please contact us if you have questions about the new Title IX regulations.