Department of Education Makes Significant Changes to the Title IX Regulations Governing Disciplinary Processes Addressing Sexual Misconduct

Today, the U.S. Department of Education (“Department”) issued significant changes to its Title IX regulations (“Final Rule”) governing how schools respond to complaints of sexual misconduct. The Final Rule takes effect on August 1, 2024. Title IX regulations apply to K-12 schools, universities, colleges, vocational, and other institutions that receive federal funding (referred to collectively as “schools” here).

The key provisions of the Final Rule include:

Broadened definitions of sex harassment and discrimination.

The Final Rule clarifies that sex discrimination includes discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. Sex harassment also includes quid pro quo harassment, and certain specific offenses (sexual assault, dating violence, domestic violence, and stalking). The definition of harassment that creates a hostile environment is expanded to encompass unwelcome sex-based conduct that is based on the totality of the circumstances and 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 school’s education program or activity.  

Expanded obligations to address certain conduct off-campus or in study abroad programs.

Schools will now be required to address sex-based hostile environment claims in its education program or activity, even if the sex-based harassment that contributed to the hostile environment occurred outside of the school’s education program or activity, or outside of the United States.

Greater notification requirements for non-confidential school employees.

Non-confidential employees at elementary or secondary schools are required to notify the Title IX coordinator of conduct that might constitute sex discrimination under Title IX. At colleges and universities, employees’ reporting requirements vary depending on their responsibilities in the institution and if they are designated as non-confidential employees.

Removal of requirements that the adjudicator (decisionmaker) of a sex discrimination complaint be someone other than the investigator and Title IX coordinator or for a live hearing (unless case law states otherwise).

The Final Rule allows schools to return to using a “single-investigator model,” which means that the investigator and decisionmaker could be the same person. The Final Rule also states that schools are required to provide a process that enables the decisionmaker to adequately assess the credibility of the parties and witnesses to the extent credibility is both in dispute and relevant to evaluating one or more allegations of sex discrimination or sex-based harassment. In some jurisdictions, a hearing may be required in order to make these credibility assessments. Examples include Doe v. Univ. of Scis. and Doe v. Baum. But if not dictated otherwise by case law, then the new regulations require this “assessment of credibility” to be implemented by a college or university through one of three methods: a live hearing with cross-examination by advisors (the current required process); a process with a live hearing, where the parties are present but questions are asked by the school’s decisionmakers; or a single-investigator model where the investigator is the decision-maker and there is no hearing. If a college or university plans to discontinue using a live hearing with cross-examination to adjudicate Title IX complaints, then it should seek guidance on the requisite features of its new process.

Changes to the way evidence is described and supplied to the parties during the investigation of sex-based harassment complaints.

The 2020 regulations require schools to provide the parties and their advisors the opportunity to review evidence obtained during the investigation that is “directly related to the allegations” (even if the school doesn’t intend to rely on it) with at least 10 days to review and respond to it as well as a copy of the complete investigative report. This evidence also must be available to the parties at any hearing so they have an equal opportunity to refer to it during the hearing, including for purposes of cross-examination. The Final Rule narrows the requirements to provide parties and their advisors with equitable access to evidence.

Schools should seek guidance on best practices to determine whether evidence that is collected during the course of its Title IX investigation should be made available to the parties for their review and response.

Offer of Informal Resolution regardless of whether a formal complaint is filed.

Schools may continue to offer informal resolution (which must be voluntary) in Title IX cases in which the responding party is a student, but under the Final Rule, can do so even if a formal complaint has not been filed.  Informal resolution can be offered between a college student and an employee but not between an elementary or secondary student and an employee.

Clarified protection against retaliation.

The Final Rule prohibits “peer retaliation,” which is retaliation by one student against another student. Retaliation is now a defined term that prohibits intimidation, threats, coercion, or discrimination against anyone because the person has reported possible sex discrimination, made a sex-discrimination complaint, or participated in any way in a recipient’s Title IX process.

Expanded training requirements, including requiring “all-employee” training.

Under the Final Rule, all employees will be required to be trained on the school’s obligation to address sex discrimination in its education program or activity, the scope of the conduct that constitutes sex discrimination (including the definition of sex-based harassment), and certain notification and information requirements. This marks a shift away from the discretion currently afforded to schools to determine which employees, outside of its grievance process, should receive this type of training.  Title IX coordinators, investigators, decision-makers, and other people responsible for implementing the school’s grievance procedures or who can modify or terminate supportive measures have additional training requirements. Facilitators of the informal resolution process also have specific training requirements.

Elementary and Secondary Schools vs. Postsecondary Schools Grievance Procedures for Sex-Based Harassment

There are additional requirements for a postsecondary institution’s written grievance procedures for the prompt and equitable resolution of complaints of sex-based harassment involving a student party. The 2024 amendments do not require elementary and secondary schools to comply with the requirements under § 106.46.

Schools should seek guidance on the implementation of the new Title IX regulations and changes that they may be considering to their current processes.

The new regulations can be found here.

The Department’s Fact Sheet summarizing the new regulations is available here.

Should you need assistance, please reach out to one of our Title IX or Education attorneys.

This publication is intended for general informational purposes only and does not constitute legal advice or a solicitation to provide legal services. The information in this publication is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel. The views and opinions expressed herein represent those of the individual author only and are not necessarily the views of Clark Hill PLC. Although we attempt to ensure that postings on our website are complete, accurate, and up to date, we assume no responsibility for their completeness, accuracy, or timeliness.