The federal Department of Education recently announced its highly anticipated amendments to Title IX regulations, which will go into effect on Aug. 1, 2024.
Title IX, which celebrated its 50th anniversary in 2022, is a federal law that prohibits discrimination on the basis of sex in educational programs and activities. It applies to any educational program that receives federal funding, whether it receives that funding directly or indirectly through students who are recipients of federal grants. Title IX governs both K-12 schools and institutions of higher education that receive federal funding, although there are some distinctions in the regulatory provisions between K-12 and post-secondary institutions.
In 2020, the Trump administration made some controversial changes to the Title IX regulations, which narrowed the scope of the types of the complaints the law could address. Many commentators argued that the Trump administration’s changes made the process more difficult for those filing complaints of sex discrimination. The DOE’s announcement of the amended regulations marks a significant milestone in the Biden administration’s ongoing efforts to roll back those changes. The rules regarding school athletics are still under DOE review.
Expansion of who and what forms of harassment are covered
The 2024 regulations establish that Title IX protects students and education employees from all types of sex discrimination, including discrimination on the basis of sexual orientation, gender identity, pregnancy and sexual harassment. The definition of sexual harassment was once again broadened to include quid pro quo harassment and specific offenses such as sexual assault, stalking, dating violence and domestic violence. It also includes unwelcome sex-based conduct that 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.
Changes to investigatory procedure
Significant modifications were also made to the investigatory procedure. Educational institutions that are governed by Title IX are required to comply with reporting and investigation procedures.
Title IX has once again been expanded to require schools to investigate complaints of discrimination even if some of the alleged conduct took place outside of school. They are also compelled to respond promptly and effectively when receiving knowledge of conduct that may reasonably constitute sex discrimination. Under the 2020 regulations, schools only had to act when certain individuals had actual knowledge of sexual harassment and were only required not to act with deliberate indifference in the face of that knowledge.
Other provisions revised
Revisions were also made to provisions that some observers deemed unfriendly to those filing Title IX complaints. For example, schools may restore informal resolution procedures to provide an option, prior to the filing of a formal complaint, for those who do not wish to undergo the formal procedure. Further, schools once more can return to the single-investigator model, which allows the same individual to act as both investigator and decision-maker, removing the cross-examination requirement the 2020 regulations had in place for post-secondary institutions.
This represents only a few of the recent updates to the Title IX regulations. Many colleges and districts may be revising their policies to ensure compliance with the amended regulations. Local associations should be on the lookout, particularly on upcoming board of education agendas, for proposed modifications to Title IX policies. Local leaders with questions regarding any proposed changes should reach out to their UniServ field representatives, who have the support of NJEA Legal Services.
Kaitlyn Dunphy is an associate director of NJEA Legal Services and Member Rights in the NJEA Executive Office. She can be reached at kdunphy@njea.org.