Final Title IX Regulations Issued – Effective August 1, 2024

By April 19, 2024April 24th, 2024News

As regular readers of our Extra Mile newsletter know, we at Hodges Loizzi have been carefully monitoring the status of the U.S. Department of Education’s proposed Title IX regulations on sex discrimination. As you know, Title IX of the Education Amendments Act of 1972 prohibits discrimination on the basis of sex in federally funded education programs, including elementary and secondary schools as well as colleges and universities. Today, the Department issued the long-delayed final Title IX rule, which becomes effective on August 1, 2024, for the upcoming school year.

Please note that adopted federal (and state) administrative regulations have the force of law unless invalidated by a court. Several groups have already indicated their intent to challenge the legality of the final Title IX rule. We will be keeping a close eye on this litigation.

The final Title IX rule represents significant changes from the current Title IX rule enacted by former Education Secretary Betsy DeVos during the Trump administration—and to some extent the final rule reflects changes from the proposed regulations issued in 2022. It is vital for each school district’s Title IX Coordinator to familiarize themselves with the new Title IX rule.

In sum, the final Title IX rule requires schools to promptly and effectively address all forms of sex discrimination. Below is an overview of some of the major provisions in the final Title IX rule. This is not intended as a comprehensive summary. We are still carefully reviewing the final rule and will provide additional information and guidance in the coming weeks and months. Please note that the final Title IX rule impacts every aspect of a school district’s Title IX compliance process and deserves close inspection.

Let’s look at several of the major provisions of the final Title IX rule:

1. Expanded Definition of Sex-Based Harassment. The final rule broadens the definition of sex-based harassment to include sexual violence and unwelcome sex-based conduct that creates a hostile environment.

2. Expanded Definition of Prohibited Sex Discrimination. The final rule prohibits discrimination on the basis of sexual orientation, gender identity, sex characteristics, and sex stereotypes, consistent with the U.S. Supreme Court decision in Bostock v. Clayton County. (Also see our write-up of B.P.J. v. West Virginia Board of Education in the next issue of the Extra Mile related to this topic.) The final rule also prohibits discrimination on the basis of pregnancy or related conditions.

3. Prompt Response and Training Required. The final rule requires schools to act promptly and effectively in response to information that may “reasonably constitute” sex discrimination, as well as train school employees on the school’s obligation to address sex discrimination and report issues of sex discrimination to the Title IX Coordinator. The final rule also requires the individuals who will serve in the designated Title IX roles to receive training as specified in the regulations.

4. Modifications to the Grievance Procedure. The final rule removes many of the procedural requirements governing investigations and proceedings regarding sex discrimination claims, while requiring schools to have a fair and equitable investigation process for both complainants and respondents. The final rule specifies in substantial detail the nature of the investigatory process and protections for all parties involved.

5. Enhanced Protections for Pregnant Individuals. The final rule prohibits discrimination against students, employees, and applicants based on pregnancy or related conditions. It also substantially enhances the obligations of schools to provide reasonable modifications and supports to students and employees related to pregnancy or related conditions.

6. Expanded “Supportive Measures” Requirement. The final rule requires schools to offer “supportive measures” as appropriate to restore or preserve a student’s access to the school’s educational program or activity during a school’s grievance process or informal resolution process.

7. Consultation Required with IEP or Section 504 Team. If either party is a student with a disability under IDEA or Section 504, the Title IX Coordinator must consult with the student’s Individualized Education Program (IEP) team or Section 504 team to determine how to ensure compliance with the respective laws throughout the grievance process.

Importantly, the Department made clear in its communications with the release of the final Title IX rule—they do not include new rules governing eligibility criteria for athletic teams. After several delays, we are still waiting for an update from the Department on when the final Title IX athletic participation rule will be issued.

Below are links to the final Title IX rule and resources from the Department released today. The press release issued by the Department also includes additional resources.

Schools should plan on using the next several months before the start of the new school year to prepare to implement the new Title IX regulations, including training and updating Title IX policies and procedures. Look to HLERK for more detailed information about Title IX and its impact on your school district. Also, if your district is an IASB PRESS subscriber, updated policies will be forthcoming.

Contact any of our HLERK attorneys with your questions. We will get through this together!