KHVPF Insight
Department of Education Releases New Title IX Regulations
After three years of anticipation, the Department of Education has released new Title IX regulations, defining the obligations of K-12 schools and colleges to protect their students and employees from sex-based harassment and discrimination. The long-awaited regulations roll back several controversial policies issued in May 2020 under the Trump administration. As these regulations go into effect August 1, 2024, schools will be under pressure to quickly retrain their staff and bring existing procedures into compliance.
Among other things, the new regulations now protect LBGTQI+ students and employees—including, for the first time, explicit protection from discrimination based on gender identity. The new regulations do not, however, address the politically volatile issue of transgender students’ eligibility for sports teams. A second ruling dealing with this issue is under consideration and will be released in the future.
The regulations also roll back Trump Administration “due process” requirements. Schools will no longer need to provide a live hearing where the accused can cross- examine the accuser, although some schools will still have to permit this procedure given court decisions in their jurisdictions. Instead, schools will have flexibility to structure their grievance procedures to their size, age of their students, and available resources. Schools may also use a “sole investigator” model again, allowing one person to serve as both investigator and decision-maker. The new regulations did not, however, change the presumption that the accused is innocent of misconduct until there has been an investigation and a finding of responsibility. The current rules continue to prohibit sanctions against the accused unless a finding of responsibility is made.
The regulations also materially change the definition of sex-based harassment. Under the Trump-era regulations, conduct violated Title IX only if it was “severe, pervasive and objectively offensive.” Under the new regulations, “severe or pervasive” misconduct of a sex-based nature violates Title IX. Additionally, the burden of proof has shifted away from a “clear and convincing” standard and toward a “more likely than not” preponderance of the evidence standard. These changes could result in a greater number of claims and an increase in findings of responsibility.
Other key changes in the new regulations include: (1) enhanced protections for pregnant and lactating employees and students; (2) an expansion of Title IX’s jurisdictional scope to include off-campus conduct, including conduct outside the US; (3) a heightened duty for school employees to report suspected violations; (4) a duty for schools to more actively monitor their programs for Title IX violations and establish “prompt time frames” for responding to complaints; (5) retaliation protections for students and employees, including protection against retaliation from a student’s peers; and (6) increase support requirements for both complainants and respondents at the informal and formal grievance stage of proceedings. These changes will be impactful on students, schools, and their employees.