Highlights From the 2024 Title IX Final Rule

Newly released amended Title IX regulations take effect Aug. 1, and enact significant changes from the 2020 Title IX rules. Review this article — which summarizes updates the Department of Education’s (ED’s) Office for Civil Rights (OCR) outlined April 19 — and seek legal counsel guidance, along with reviewing ED’s summaries and policy drafting resource, to ensure your institution implements all necessary updates by Aug. 1.

The new regulations apply to all elementary schools, secondary schools, postsecondary institutions, and other institutions that receive federal financial assistance.

To help your institution prepare, in the coming weeks United Educators (UE) will offer webinar guidance from legal experts, along with updates to our Title IX materials.

Updated Definitions and Scope

The 2024 Title IX amendments update definitions that may factor into your institution’s Title IX policies and practices. As you update your nondiscrimination policy and notice of nondiscrimination, review how the updated definitions may factor in.

Some significant changes include:

• Sex discrimination includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
• Retaliation and peer retaliation (retaliation by one student against another student) are defined and prohibited.
• Pregnancy and related conditions are protected. The new regulations clarify that students, employees, and applicants are protected from discrimination based on pregnancy, childbirth, termination of pregnancy, lactation, related medical conditions, or recovery. Among other requirements, institutions must provide reasonable modifications for students; reasonable break time for employees for lactation; and a clean, private lactation space for students and employees.
• Hostile environment harassment is unwelcome sex-based conduct that, based on the totality of 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 an education program or activity. This determination is fact specific.
• Avoiding deliberate indifference isn’t sufficient. Responding promptly and effectively requires complying with multiple provisions, including monitoring for barriers to reporting, designating responsibilities for confidential and non-confidential employees, and requiring your Title IX Coordinator to initiate complaints where health or safety is threatened.
• Specific employees must notify the Title IX Coordinator when they have information about conduct that reasonably may constitute sex discrimination. Confidential employees are specifically defined, and non-confidential employees are obligated to notify the Title IX Coordinator of conduct that reasonably may constitute sex discrimination at all elementary and secondary schools and in certain cases at postsecondary institutions.

Respond to Allegations of Sex Discrimination

Examine the specific requirements the amended regulations set forth for grievance procedures, investigations, and determinations. Importantly, use the preponderance of the evidence standard of proof to determine if sex discrimination occurred, unless the clear and convincing evidence standard is used in all other comparable proceedings.

Adopt, publish, and implement grievance procedures for all complaints of sex discrimination, including in them:

• Title IX Coordinator responsibilities starting as soon as the coordinator knows of conduct that may constitute sex discrimination. The coordinator must offer and coordinate supportive measures for all parties and notify them of the grievance procedures and informal resolution process, if available and appropriate.
• Grievance procedures applying to all complaints of sex discrimination that are tailored to the age, maturity, and level of independence of students and the situations and needs of employees and others. The procedures must focus on fairness and reasonableness; require equitable treatment of complainants and respondents; enforce no conflicts of interest or bias for staff in the process; and provide reasonable time frames, notice, and evaluation of permissible evidence.
• Investigation requirements putting the burden on institutions to gather sufficient evidence, and requiring all parties be given equal opportunity to present witnesses, evidence, and access and respond to evidence.
• Determinations in writing, containing specific data, following specific timing requirements, and allowing for an appeal process. Determinations must have clear processes requiring action from the Title IX Coordinator, including coordinating remedies, sanctions, and remedial steps.
• Retaliation prohibitions, with a requirement that institutions respond to retaliation complaints using the same procedures as for other forms of sex discrimination.

Additional Grievance Procedures for Sex-Based Harassment Involving Postsecondary Students

When postsecondary students are involved in sex-based harassment complaints, the 2024 rules spell out additional grievance procedures that institutions must incorporate, including:

• Written notice of pertinent information and dates
• Equal opportunity to have an advisor of the party’s choice at any meeting or proceeding
• If people other than the advisor are allowed to attend any meeting or proceeding, each party must have that option
• A process enabling the decision-maker to question parties and witnesses to adequately assess a party’s or witness’s credibility when that is in dispute and relevant, with differences for when a live hearing is or isn’t conducted