2024 Title IX Regulations, Training, and Injunctions A BartlettJames Update.

On Friday, April 19, 2024, the Office of Civil Rights of the U.S. Department of Education released its long-awaited update to the federal Title IX regulations.  Compliance with the new regulations is required beginning August 1, 2024.  This client update provides a brief summary of legal actions taken to enjoin enforcement of the new regulations in certain jurisdictions and schools.  It also provides an overview of the new regulations for those institutions in jurisdictions in which enforcement has not been enjoined as of August 23, 2024.

Injunctive Actions

Twenty-six state attorneys general participated in lawsuits filed prior to the effective date of the new Title IX regulations.  Significant uncertainty about the applicability of the new regulations has accompanied the lawsuits and the subsequent preliminary injunctions.  While the lawsuits have resulted in preliminary injunctions of the regulations in the 26 states involved, the scope of the injunctions is considerably broader than the geographical areas represented by these states.

In a case brought in federal district court in Kansas by the states of Kansas, Wyoming, Utah, and Alaska, as well as by the organizations Moms for Liberty, Young America’s Foundation, and Female Athletes United, the judge accepted the organizations’ requests that the preliminary injunction extend to numerous schools, colleges, and universities nation-wide. Specifically, the judge allowed the organizations to list those schools, colleges, and universities where members of the organization or their children were attending.  Young America’s Foundation and Female Athletes United identified approximately 700 colleges and universities in response.  These are listed in Exhibit B of the court’s order(2).

Consequently, colleges and universities not located in the states subject to the preliminary injunctions of the 2024 Title IX regulations are not necessarily exempt from the injunctions.  The injunction issued by the Kansas court makes it imperative for college and university Title IX coordinators and other administrators in all states to check the list provided in the Exhibit of that court’s order to determine if it applies to their institution.

It is likely that the U.S. Supreme Court will ultimately resolve the underlying issues leading to the preliminary injunctions of the 2024 Title IX regulations.  Until then, however, applicability of the new regulations will depend on geographic location of an institution as well as the absence of the institution’s name on the list included in the Kansas court’s order.  In either case, our team at BartlettJames is prepared to assist in all aspects of Title IX operations, regardless of whether the 2024 Title IX regulations are applicable or whether the 2020 regulations remain in effect.  This includes policy drafting and revisions, Title investigations, Title IX hearings and decision making, Title IX advisors, informal resolution facilitators, and appellate officials.  We are competitively priced and are prepared to provide immediate assistance.

With respect to implementation of the new regulations in states not subject to the injunctions, our company has updated our Title IX training materials to reflect the changes they include.  We are prepared to provide support with training, policy implementation, and continued assistance with Title IX implementation.

Key points regarding the 2024 Title IX regulations:

Definitions.  The regulations expanded the definition of conduct that is considered to be sexual harassment. This includes sexual harassment based on sexual stereotypes and characteristics, sexual orientation, gender identity, and pregnancy and related conditions.

Hostile Environment Harassment.  The regulations lower the threshold for a finding of hostile environment harassment.  Contrasted to the 2020 regulations, which defined hostile environment harassment to cover conduct that is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity,” the new regulations focus on “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.”

No retroactivity.  The regulations become effective on August 1st of this year, and they do not have a retroactive effect.  They will apply only to situations occurring on or after August 1st.  Conduct occurring prior to August 1st will be subject to the current (2020) regulations.

Grievance Procedures.  One section of the new regulations, 34 CFR section 106.46, deals specifically with grievance procedures for complaints of sex-based harassment involving student complainants or student respondents at institutions of higher education. The general grievance provisions of section 106.45, which deal with the broader category of discrimination based on sex, apply in all instances, including grievances for sex-based harassment.  We are prepared to assist in drafting or revising grievance procedures to conform to these new requirements. 

No Written Complaint. A written complaint is not required to begin the grievance procedures.

Cross Examination.  While cross examination of witnesses and parties is no longer required in a formal hearing, it remains permissible, and this option deserves careful consideration, particularly in cases of sex-based harassment as defined by the new regulations.

Single Adjudicator.  The new regulations permit the return to the pre-2020 dear colleague letters’ single adjudicator model.  This would permit, but not require, the investigator or the Title IX Coordinator to also perform the role of decision-maker.  Careful consideration should be given as to whether the single adjudicator model would be in the best interests of respondents and your institution particularly in cases of sex-based harassment.

Live Hearings.  In another significant change, live hearings are permitted, but are not required. Institutions may determine that in cases of sex-based harassment, which the regulations define as quid pro quo harassment, hostile environment harassment, and specific offenses (sexual assault, dating violence, domestic violence, and stalking), live hearings may be appropriate given the seriousness of the allegations and the potential consequences to respondents. 

Off-Campus Activity.  In an additional departure from the 2020 regulations, the new regulations require institutions to address allegations of a sex-based hostile environment in any educational program or activity, even if some of the underlying conduct occurred outside of the educational program or activity or outside of the U.S.

Training.  The new regulations expand the scope of those who must be trained.  In addition to Title IX Coordinators and their designees, investigators, decision-makers, and facilitators of informal resolution proceedings, all employees must be trained on the institution’s obligation to address sex discrimination in its education program or activity, the scope of conduct that constitutes sex discrimination under Title IX, including the definition of sex-based harassment, and the requirement to provide information about how to contact the Title IX Coordinator to individuals who bring to their attention potential violations of Title IX.  

Pregnancy.  The new regulations provide significant additional requirements designed to protect pregnant individuals.  Among these are training requirements for all employees regarding pregnancy of students.  When informed by a student of the student’s pregnancy, unless the employee believes the Title IX Coordinator has been notified of the pregnancy, the employee must provide the student with the Title IX Coordinator’s contact information and inform the student that the Title IX Coordinator can take actions to prevent sex discrimination.

 

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(1) Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming

(2) gov.uscourts.ksd.152561.67.2.pdf (courtlistener.com)