• U.S. Department of Education issued final Title IX regulations governing sex discrimination complaints involving educational institutions.
• The regulations clarify terms, expand the geographical scope of Title IX, amend the investigation process, and include sexual orientation, gender identity, and pregnancy/lactation issues within Title IX’s protections.
• Educational institutions have until August 1, 2024, to update their policies and train staff on the new Title IX requirements.

On April 19, 2024, the U.S. Department of Education issued its updated final regulations enforcing Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §1681 et seq., which will govern sex discrimination complaints regarding conduct that occurs after August 1, 2024.¹ Title IX is a federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities. All public and private elementary and secondary schools, school districts, colleges, and universities receiving federal funds must comply with Title IX. The new regulations include significant changes affecting educational institutions as compared to prior Title IX regulations issued in 2020, including clarification of defined terms, an expanded geographical scope, changes to the investigative process, and the inclusion of sexual orientation, gender identity and pregnancy/lactation protections under Title IX. This Insight identifies some of the key updates in the new final regulations.

“Sex-Based Harassment” Changed to “Severe or Pervasive” Standard

One key definition that has been clarified is the definition of sexual harassment per Section 106.2 of the Title IX regulations, 34 C.F.R. part 106. The final regulations explicitly clarify that sex-based harassment is a form of sex discrimination, and include both sexual harassment, which is conduct of a sexual nature, as well as other forms of harassment that are not necessarily “sexual” but are based on a person’s sex, such as pregnancy harassment, gender identity, or sex-based stereotypes.

The harassing conduct prohibited by Title IX per the final rules issued in 2020 included: (1) quid pro quo harassment by a school employee; (2) any instance of sexual assault, dating violence, domestic violence or stalking; and (3) any unwelcome conduct that is so severe, pervasive, and objectively offensive that it denies a person equal educational access (a/k/a hostile educational environment). The standard for proving harassment on this third basis was previously based on the standard set forth by the Supreme Court in Davis v. Monroe County Board of Education (1999). The final regulations now require the conduct in question be “(1) unwelcome, (2) sex-based, (3) subjectively and objectively offensive, as well as (4) so severe or pervasive (5) that it results in a limitation or denial of a person’s ability to participate in or benefit from the recipient’s education program or activity.”

Removal of Geographic Limitations on Title IX Responsibilities

Section 106.11 of the final regulations re-defines the geographical scope of Title IX to cover conduct that occurs off campus, and even outside the United States. In this regard, the final regulations caution that a Title IX recipient should not focus on whether the alleged misconduct happened on or off campus, “but rather on whether the recipient has disciplinary authority over the respondent’s conduct in the context in which it occurred.” There is no distinction between discrimination that occurs in person and that which occurs online, and the final regulations permit schools to exercise their authority under the law to consider some conduct that occurs outside an institution’s educational program or activity, or outside the United States, if that conduct is a contributing factor in the alleged hostile educational environment. Nevertheless, an institution is not required to respond independently to conduct that occurred outside the educational program or activity.

“Sex Discrimination” Now Includes Sexual Orientation and Gender Identity

Section 106.10 of the final regulations now expressly includes sexual orientation and gender identity as coming within the definition of what encompasses discrimination “on the basis of sex.” The reason for this express inclusion was to maintain consistency with Title VII following the Supreme Court’s ruling in Bostock v. Clanton County (2019), and the Department of Education’s concern that a narrower interpretation of sex “could exclude some individuals from Title IX protections that properly apply to all students.” Driving this concern and the overwhelming number of comments on this specific section of the proposed rule was the safety and mental health of LGBTQI+ students and employees. Although many opponents of the inclusion cited religious beliefs and potential conflicts with state and local law, the Department emphasized that Title IX does not apply to those institutions that are controlled by a religious organization if its application would be inconsistent with the tenets of that organization’s faith, nor does Title IX dictate a specific curriculum. However, otherwise-covered recipients are not relieved of their duty to comply with these regulations even if their state or local laws conflict with the same.

Clarification of Pregnancy-Related Protections and Inclusion of Lactation Issues

The final regulations clarify that Title IX recipients must protect students, employees, and applicants from discrimination based on pregnancy, childbirth, termination of pregnancy, lactation, related medical conditions, or recovery (§ 106.2), including by providing reasonable modifications for students (including Section 106.40(b)’s requirement to provide a pregnant student with the Title IX coordinator’s contact information), reasonable break time for employees for lactation (§ 106.57(e)(1)), and a clean, private lactation space for both students and employees (§§ 106.40(b)(3)(v) and 106.57(e)(2)). Sections106.40(b)(3)(v) and 106.57(e) of the final regulations require Title IX recipients to assure students and employees have access to a lactation space, “which must be a space other than a bathroom that is clean, shielded from view, free from intrusion from others,” that may be used for “expressing breast milk or breastfeeding as needed.” To allow for flexibility, the Department of Education declined to adopt additional specific requirements for the size and setup of lactation spaces. The Department of Education noted new federal laws, including the Pregnant Workers Fairness Act (PWFA) and the PUMP Act, that similarly address lactation in the workplace and may apply in addition to Title IX obligations. Schools need not provide a separate lactation space solely for students, as recipients may comply by ensuring a student can access an existing employee lactation space. In addition, the inclusion of “breastfeeding” is intended to allow students and employees who are already permitted to bring their child into the recipient’s education program or activity (e.g., through onsite childcare, a recipient’s visitor policy, or a state or local law) to use lactation spaces for breastfeeding instead of pumping. Similar to the PWFA’s provisions, the final regulations stipulate that recipients may not require a student to provide supporting documentation to confirm lactation needs for reasonable modifications or to access a lactation space.

Increased Flexibility with Respect to Investigation and Resolution

The final regulations also allow increased discretion and flexibility with respect to the investigation and resolution of Title IX complaints to account for variations in school size, student populations, and administrative structures. For instance, the final regulations allow schools to return to the single-investigator model, where the decisionmaker is the same person as the Title IX Coordinator or investigator, which was prohibited by the 2020 regulations. The final regulations also no longer mandate live hearings and cross-examination at the postsecondary level. Section 106.46(g) provides that “[a] postsecondary institution’s sex-based harassment grievance procedures may, but need not, provide for a live hearing.” In addition, Section 106.46(f) provides that postsecondary institutions must allow either (1) questioning by the investigator or decisionmaker during individual meetings when there is no live hearing or (2) questioning by the decisionmaker in a live hearing. Consistent with the 2020 amendments, the final regulations do not require live hearings at the elementary school and secondary school level.

Also, as described in Section 106.44(k), a school may offer an informal resolution process upon receipt of a sex discrimination complaint or when it has information about conduct that reasonably may constitute sex discrimination (regardless of whether a complaint is initiated). The informal resolution process is not available in cases involving allegations that an employee engaged in sex-based harassment of an elementary school or secondary school student, or if such a process would conflict with law. Previously, Section 106.45(b)(9) of the 2020 amendments permitted informal resolution only if a formal complaint alleging sexual harassment was filed.

Responding to Allegations of Sex Discrimination

Section 106.44(a)(1) of the new regulations requires that a recipient with knowledge of conduct “that reasonably may constitute sex discrimination” in its education program or activity “must respond promptly and effectively.” The 2020 amendments, at Section 106.44(a), required a recipient to “respond promptly in a manner that is not deliberately indifferent” only when it has “actual knowledge” of allegations of sexual harassment. The Department of Education agreed with certain commenters that the 2020 amendments “did not require recipients to fully address the impact of sexual harassment in their educational environments, and further fell short of imposing sufficient obligations to respond to possible sex discrimination.” However, the Department of Education clarified that Section § 106.44(a) does not intend to hold recipients to a standard of strict liability for any sex discrimination that occurred, even if it had no knowledge of the conduct (e.g., where the conduct occurs before a school’s employee becomes aware of it).

Changes in the Definition of Retaliation

Finally, the new regulations contain some notable changes to the definition of retaliation in Section 106.2, which clarifies that nothing in that definition prohibits institutions from requiring employees to participate as a witness in, or otherwise assist with, a Title IX investigation, proceeding, or hearing. In doing so, the Department of Education agreed with commenters that giving a school’s employee a right under Title IX to refuse to participate in Title IX grievance procedures “would be at odds with the purpose of Title IX and other obligations under the final regulations.” This also aligns with the fact that non-participation is not considered protected activity under Title VII, thus allowing employers to have consistent Title VII and Title IX policies requiring employees to participate as witnesses in investigations. In addition, Section 106.2 now makes clear that retaliation includes peer retaliation by other students.

Educational institutions will have until the final regulations’ effective date of August 1, 2024, to update their policies and train staff on the new Title IX requirements. Thus, colleges and universities have a little over three months to unpack the over 1,500 pages of guidance that accompany the new regulations, and implement changes. The Department of Education has shared a resource for drafting policies, notices of investigation, and grievance procedures to help schools come into compliance quickly. Additionally, while there has been much attention on Title IX’s impact on athletics, the new regulations do not address sex discrimination in athletics, which is currently undergoing a separate rulemaking process and are anticipated in fall 2024.

Footnotes

¹ Available at https://www2.ed.gov/about/offices/list/ocr/docs/t9-unofficial-final-rule-2024.pdf. In addition, the U.S. Department of Education issued a press release about the new regulations (available at https://www.ed.gov/news/press-releases/us-department-education-releases-final-title-ix-regulations-providing-vital-protections-against-sex-discrimination), which provides links to the Department’s fact sheet and a summary of the major provisions of the final regulation.