The federal Department of Education recently announced its highly anticipated amendments to Title IX regulations, which will go into effect on August 1, 2024.
Title IX, which celebrated its 50th anniversary in 2022, is a federal law that prohibits discrimination based on sex in educational programs and activities. It applies to any educational program that receives federal funding, either 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 distinctions in the regulatory provisions between K-12 and post-secondary institutions.
In 2020, the Trump administration made controversial changes to the Title IX regulations, narrowing the scope of complaints the law could address. Many commentators argued that these changes made it 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 efforts to roll back those changes. The rules regarding school athletics are still under DOE review.
The 2024 regulations establish that Title IX protects students and education employees from all types of sex discrimination, including discrimination based on sexual orientation, gender identity, pregnancy, and sexual harassment. The definition of sexual harassment has been 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 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.
Significant modifications were also made to the investigatory procedure. Educational institutions governed by Title IX are required to comply with reporting and investigation procedures. Schools must now investigate complaints of discrimination even if some 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 required not to act with deliberate indifference in face of that knowledge.
Revisions were also made to provisions deemed unfriendly to those filing Title IX complaints. For example, schools may restore informal resolution procedures as an option before filing a formal complaint for those who do not wish to undergo the formal procedure. Further, schools can return to the single-investigator model allowing one individual to act as both investigator and decision-maker, removing the cross-examination requirement from the 2020 regulations for post-secondary institutions.
This represents only a few updates to the Title IX regulations. Many colleges and districts may be revising their policies for compliance with these amendments. Local associations should monitor 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 support from 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.
